Madras High Court
Tuticorin Stevedores' Association vs The Government Of India on 14 September, 2020
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 14.09.2020
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
WP(MD)No.6818 of 2020
and
WMP(MD)No.6217 of 2020
Tuticorin Stevedores' Association,
Rep.by its Secretary,
Chevalier C.I.R Machado Plaza,
5-A, World Trade Avenue,
Harbour Estate,
Tuticorin – 628 004. ... Petitioner
Vs.
1.The Government of India,
Rep.by its Secretary,
Ministry of Shipping,
Transport Bhawan,
No.1, Parliament Street,
New Delhi – 110 001.
2.The Director,
Ministry of Shipping,
Government of India,
Transport Bhawan,
No.1, Parliament Street,
New Delhi – 110 001.
3.The Director General of Shipping,
9th Floor, BETA Building,
I-Think Techno Campus,
Kanjur Village Road,
Kanjumarg (E), Mumbai – 400 042.
4.V.O.Chithambaranar Port Trust,
Rep.by its Chairman,
Tuticorin – 628 004.
http://www.judis.nic.in
... Respondents
2
Prayer : Writ Petition is filed under Article 226 of the Constitution of
India for issuance of Writ of Mandamus, directing the respondents 1 to
3 to extend the benefits of notification issued by the second
respondent in proceedings No.PD-14033/4/2020-PD VII, dated
21.04.2020, waiving penal charges, demurrage, detention charges,
dwell time charges, anchorage charges, penal berth hire charges,
performance related penalties etc., to the members of the petitioner
till the lock down is completely lifted in the State of Tamil Nadu and
consequently forbearing the fourth respondent from claiming the above
charges from the members of the petitioner.
(Prayer is amended vide order dated 14.09.2020 in WMP(MD)No.8883
of 2020)
For Petitioner : Mrs.Hema Sampath,
Senior Counsel for Mr.M.Saravanan
For R1 to R3 : Mr.P.Subbiah,
Senior Central Government Standing Counsel
For R4 : Mr.V.R.Shanmuganathan
ORDER
Heard the learned Senior Counsel appearing for the petitioner and the learned Standing Counsel appearing for the respondents.
2.The petitioner is an association of Stevedores and has been registered under the Tamil Nadu Societies Registration Act, 1975. Its members are engaged in clearing the cargo at Tuticorin port. Following the outbreak of Covid-19 pandemic, the Government of India imposed lock down vide order dated 24.03.2020. Though specific http://www.judis.nic.in exemption was given in respect of operations of Railways, Sea port for 3 cargo movements and inter-state movement of goods/cargo for inland and exports, the Government realizing the ground reality, directed that each major port shall 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. Communication to this effect was issued on 31.03.2020. Though each major port was to remain operational during Covid-19 pandemic and continue cargo operations in all respects, the factual position was that clearance of goods became difficult or even impossible for several reasons. The order dated 31.03.2020 passed by the Ministry was followed by DGS Order No.8 of 2020 dated 31.03.2020 issued by the Directorate General of Shipping, Mumbai. Para 7 of the said order reads as follows :
“7.Now therefore, in order to maintain proper supply chain at the Indian seaports, shipping companies or Carriers (and their agents by whatever name called) are advised not to charge, levy or recover any demurrage, ground rent beyond allowed free period, storage charges in the port, additional anchorage charge, berth hire charges or vessel demurrage or any performance related penalites on cargo owners/consigness of non-containerised cargo (ie., 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 http://www.judis.nic.in cargo caused by reasons attributable to lockdown 4 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 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.”
3.Citing these two orders, V.O.Chidambaranar Port Trust also issued trade notice dated 01.04.2020 on the same lines. The original lock down that was announced was extended upto 03.05.2020 by the Government of India. Realizing that the lock down measures have disrupted the logistical chain, the Government of India felt the need to announce some relief measures. Vide communication dated 21.04.2020, all major ports were directed as follows :
“(i)Storage Charges : Ports shall allow free storage time to all port users for the Lock-down Period.
(ii)Lease rentals, license fees related charges :
Ports shall allow deferment of April, May and June months, annual lease rentals/license fees on pro-rata basis, without any interest, if requested by lessee/licensee. This shall be applicable only for the annual lease rentals/license fee to be received by port for the year 2020.
(iii)Other Charges, penalties etc: Ports shall ensure that no penal charges, demurrages, detention charges, dwell time charges, anchorage charges, penal http://www.judis.nic.in berth hire charges, performance related penalties etc., 5 are levied on any port user (traders, importer, exporters, shipping lines, concessionaires, licenses, CFS, etc.,) for any delay in berthing, loading/unloading operations or evacuation/arrival of cargo during the Lock-down Period plus 30 days recovery period.
(iv)Additional land for storage : If requisite additional land is available within port area, the port shall make all efforts to provide the additional storage land to port users, on temporary basis, without any charges, rentals, fee etc upto 30th June 2020 on 'as is where is' basis.” In view of the same, the Directorate General of Shipping, Mumbai issued DGS Order No.11 of 2020 dated 22.04.2020. As per the directions and based on the Ministry's order, V.O.Chidambaranar Port Trust issued circular dated 24.04.2020 incorporating the said relief measures. Though Government of India did not extend the lock down, the State Government announced that lock down would continue to be with varying restrictions. But in contrast, the orders of the Ministry as well as the Directorate General of Shipping, Mumbai covered the period from 22.03.2020 to 03.05.2020 and not beyond that. Therefore, the petitioner submitted a representation dated 21.05.2020. Since the said request did not elicit any favorable response, the present writ petition came to be instituted. The learned Senior Counsel appearing for the writ petitioners reiterated all the contentions set out in the affidavit filed in support of the writ petition.
http://www.judis.nic.in 6
4.The fourth respondent Port Trust had filed its counter affidavit opposing the prayer made by the writ petitioners. The learned standing counsel for the Ministry submitted that he is adopting the stand of the fourth respondent. The stand of the port trust is that it is not possible to extend the relief measures beyond the period stipulated by the Ministry and the Directorate General of Shipping, Mumbai. According to the Port authorities, they had provided all arrangements and facilities. Even though the State Government extended the lock down from time to time, the transport services had been declared as essential services and the port trust services were totally exempted from all restrictions. According to the fourth respondent, the petitioners instead of utilizing the amenities provided by the authorities for clearing the cargo had unjustifiably filed this writ petition.
5.Yet another contention advanced by the port trust is that the stevedores are not the cargo owners and that the relief measures provided by the respondents are meant to be passed on to the end users. Since normalcy has returned to port operations, there is no basis for maintaining this writ petition. The learned standing counsel for the fourth respondent called for dismissal of this writ petition.
6.I carefully considered the rival contentions and went through the materials on record. It is true that payment of charges for availing http://www.judis.nic.in 7 the port services is essentially a contractual obligation. The question as to whether on account of the pandemic outbreak of Covid-19, the parties can invoke the principle of force majeure need not detain us. The calamitous impact and disruption caused by Covid-19 on the economic front has been recognized by the Government itself. It is not as if the members of the petitioner association had to tackle Covid-19 alone. If that had been the sole affecting cause, then the port trust can possibly argue that the stevedores or the importers cannot invoke the force majeure principle. The Government of India had also announced lock down measures. It is a case of double whammy. Like mridangam that gets struck on both sides, the members of the petitioner association had to face not only the impact of Covid-19 but also the lock down imposed by the Governments. That is why, recognizing the adverse impact, the Government on its own had announced a slew of relief measures for the users of port services. Lock down was originally announced and then extended. The Union Ministry had directed that the relief measures announced by it are to be implemented for the period covering 22.03.2020 to 03.05.2020. It is true that the Union Government did not extend the lock down thereafter. But it is a matter of record that the State Government kept extending the lock down and as of now it is to be enforced till the end of September 2020. Of course, travel relaxations and several other lifting of restrictions have been announced. But then, the question is http://www.judis.nic.in 8 whether the petitioners could have cleared the cargo during this period.
7.This is a question of fact. The petitioners would point out that much of their workforce comprised migrant labour and all of them had gone back to their native places following the announcement of lock down. Thus, they were not in a position to clear the cargo at all. The learned Senior counsel drew my attention to the clarificatory note dated 02.09.2020 issued by the Ministry. But it only states that the detailed advisory dated 21.04.2020 should be implemented in letter and spirit. It is silent on the applicability of the relief measures for the period beyond 03.05.2020.
8.The Union Government ought to take a call in the matter. It has the power under Section 111 of the Major Port Trusts Act to issue directions to the port authorities. Conferment of power can sometimes be coupled with duty. The case on hand is one such instance. The Central Government is aware that the State of Tamil Nadu continues to be under lock down. That being so, the Ministry of Shipping must decide whether the clearance of the goods was not possible even after 03.05.2020 in view of the lock down imposed by the State Government and if so, what are the relief measures that can be provided and to what extent.
http://www.judis.nic.in 9
9.I, therefore, issue the following directions :
(a)the petitioners shall submit a detailed representation to the first respondent setting out their case for continued applicability of the relief measures announced on 21.04.2020 till the lock down is lifted in the State of Tamil Nadu.
(b)The first respondent shall take a call in the matter within a period of six weeks from the date of receipt of a copy of the representation. The first respondent will also grant personal hearing to the representatives of the petitioner association through Video Conferencing.
(c)Till such decision is taken, the fourth respondent Port Trust shall not take any coercive measures against the members of the petitioner association.
(d)It is open to the members of the petitioner association to apply for provisional release of the goods.
(e)If applications for provisional release of goods are made, the fourth respondent is directed to permit clearance of the goods on such terms as it deems fit. The fourth respondent can permit clearance of the goods by taking a bond or by putting the applicants on any other appropriate condition. It is needless to mention that the same would abide by the final orders to be passed by the Government of India and the Directorate General of Shipping, Mumbai.
http://www.judis.nic.in 10
10.The writ petition is disposed of on the above terms. No costs. Consequently, connected miscellaneous petition is closed.
14.09.2020 skm Note :
1.Issue order copy expeditiously.
2.In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.
To
1.The Secretary, Ministry of Shipping, Transport Bhawan, No.1, Parliament Street, New Delhi – 110 001.
2.The Director, Ministry of Shipping, Government of India, Transport Bhawan, No.1, Parliament Street, New Delhi – 110 001.
3.The Director General of Shipping, 9th Floor, BETA Building, I-Think Techno Campus, Kanjur Village Road, Kanjumarg (E), Mumbai – 400 042.
4.V.O.Chithambaranar Port Trust, Rep.by its Chairman, Tuticorin – 628 004.
http://www.judis.nic.in 11 G.R.SWAMINATHAN, J.
skm WP(MD)No.6818 of 2020 and WMP(MD)No.6217 of 2020 http://www.judis.nic.in 14.09.2020