Gujarat High Court
Reliance vs Union on 24 November, 2010
Author: Akil Kureshi
Bench: Akil Kureshi
Gujarat High Court Case Information System
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SCA/5246/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5246 of
2010
=========================================================
RELIANCE
INDUSTRIES LTD(RIL) & 1 - Petitioner(s)
Versus
UNION
OF INDIA & 2 - Respondent(s)
=========================================================
Appearance
:
MR
KS NANAVATI, SR COUNSEL FOR NANAVATI ASSOCIATES
for
Petitioner(s) : 1 - 2.
MR PS CHAMPANERI for Respondent(s) :
1,
RULE SERVED BY DS for Respondent(s) : 2 - 3.
MR RAKESH GUPTA
WITH MR ABHISHEK MEHTA FOR M/S TRIVEDI & GUPTA for Respondent(s)
: 2 - 3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 24/11/2010
ORAL
ORDER
The petition was admitted by order dated 29.4.2010. Ad interim relief in terms of 18(D) was also granted till the returnable date of the interim relief. Such interim relief has continued from time to time. Today the issue of confirmation/vacation of interim relief was argued before me by the learned advocates for both the sides.
Petitioner no.1 M/s. Reliance Industries Ltd("RIL" for short) receives natural gas from respondent no.2 GAIL (India) Ltd. Petition pertains to transportation charges levied by GAIL from RIL for supplying such natural gas. It is the case of the petitioners that such levy is unauthorised, against the Government of India Gas pricing specifications, is opposed to Article 14 of the Constitution. It is also the case of the petitioners that previously another consumer IPCL had approached this Court challenging such levy. Learned Single Judge in case of Indian Petrochemicals Corpn. Ltd and other v. Union of India in Special Civil Application No. 4887/2006 vide order dated 19.9.2006 allowed the petition, quashed the levy, directed refund of the transportation charges already collected. It is also the case of the petitioners that decision of the Learned Single Judge was challenged in appeal before the Division Bench. Letters Patent Appeal No.1622/2006 however came to be dismissed by judgement dated 17.6.2008. On such basis, petition has been filed.
Para.18(D) of the petition in terms of which interim relief has been granted reads as follows:
"(D) Pending the hearing and final disposal of the present petition, your Lordship may be pleased to direct the Respondent No.2 and No.3 its officers, servants and agents to continue to supply gas without recovering transmission charges."
By virtue of said directions therefore, petitioners would receive gas from GAIL without paying transportation charges for such consumption. It is this interim relief which the petitioners request to be confirmed. Opponents stoutly oppose such a prayer.
Heavy reliance is placed on the decision of the Learned Single Judge as well as Division Bench in case of IPCL contending that such levy has been declared illegal by the High Court. It is also contended that Government of India Pricing Policy does not permit any additional charges such as transportation charges to be recovered by GAIL. Though the petitioner had in previous agreements with GAIL agreed to pay such charges, it is contended that the petitioners were coerced into signing such an agreement and in absence of any other supplier of gas, the petitioners had no choice but to agree to such terms. In any case, there is no estoppal against law nor can there be waiver of fundamental rights. It was contended that interim relief which is granted as far back as in April 2010 be continued till the final disposal of the petition. It is further contended that the RIL has laid down its own pipeline for carrying the gas from the delivery point till its factory therefore, no transportation charges can be recovered.
On the other hand, on behalf of GAIL, it is contended that facts in the present case are vitally different from those involved in case of IPCL. Apex Court has issued notice and granted stay against refund in the said case. It was pointed out that the gas is carried from GGS III station to GPC Gandhar by pipelines laid down and maintained by the GAIL. First 10.6 km pipeline has 18"
diameter, remaining 4.5 km is divided into two pipelines of 24"
and 14" diameter. It is from GPC Gandhar that RIL lifts gas through its own pipelines. Transportation charges are only for transporting gas from GGS III to GPC Gandhar and not beyond the said point. It was also contended that in agreements between the parties, RIL had agreed to pay such charges. He submitted that there are other suppliers of the gas also.
At this stage tackling only question of interim relief, I prima facie find that :
1) In two separate agreements entered into between the parties in the year 2000 and 2008, RIL had agreed to pay the above transportation charges. In particular, agreement of the year 2008 was entered into when the proceedings in case of IPCL were already concluded by the High Court. Judgement of IPCL case was available. Despite which without any protest, petitioners agreed to pay such charges.
2) From the year 2000 till 2010, when the present petition was filed, no objection was raised on behalf of RIL to such charges being levied by GAIL. Petitioners have for nearly 10 years paid transportation charges under agreement between the parties without any protest.
3) Though it is contended on behalf of the petitioners that gas is transported at its own cost through pipeline installed and maintained by the petitioners, respondents suggest that such carriage by RIL is only from GPC Gandhar station and from GGS III to GPC Gandhar, gas is being carried by GAIL through its pipeline installed and maintained by GAIL. Prima facie, therefore, on facts, case of IPCL may stand on a different footing, wherein conclusion of the Learned Single Judge as upheld by the Division Bench was that consumer was transporting the gas through its own pipelines. It was in this background that the Learned Single Judge held that for such transportation no charges can be levied by the gas company. Whether for transporting the gas from GGS II to GPC Gandhar, GAIL can recover charges from the petitioner is question which requires a closure look and detailed scrutiny. However, when the petitioners had been paying such charges for nearly 10 years before filing of the petition and had agreed in two separate agreements between the petitioner and GAIL to pay such charges, question is whether such levy should be suspended by way of interim relief which would amount to, at this stage, substantially allowing this prayer of the petitioner finally.
This can also not be stated to be a situation that if no interim relief is granted, irreparable loss to the petitioner which cannot be compensated in terms of money would be caused.
Considering the above aspects of the matter, interim relief granted earlier is vacated. However, with clarification and direction that for consumption of the gas during the period when interim relief was operating in favour of the petitioners, no transportation charges shall be demanded from the petitioners till final disposal of the petition.
(Akil Kureshi,J.) (raghu) Top