Calcutta High Court (Appellete Side)
Abg Haldia Bulk Terminals Private Ltd. & ... vs Board Of Trustees Of Port Of Kolkata & Ors on 2 July, 2010
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Mr. Justice Jayanta Kumar Biswas.
W.P. No. 13986 (W) of 2010
ABG Haldia Bulk Terminals Private Ltd. & Anr.
v.
Board of Trustees of Port of Kolkata & Ors.
Mr S. Pal, senior advocate, with Mr J. Saha, Ms Neelima Chatterjee and Mr
Indranil Desmukh, advocates, for the petitioners. Mr B.K. Bachawat and Mr S.
Talukdar, senior advocates, with Mr Somnath Bose, advocate, for the port trust.
Mr Swagata Dutta, advocate, for the second respondent. Mr Rittwik Pattanayak
and Ms Joyeeta Chakraborty, advocates, for the state. Mr Soumen Sen and Mr B. Basu Mallick, advocates, for the intervenor.
Heard on: July 02, 2010.
Judgment on: July 02, 2010.
The Court: - The petitioners in this art.226 petition dated June 29, 2010 are seeking a mandamus commanding the first respondent to act in a manner which is fair, reasonable and transparent in the discharge of its functions, obligations, duties under the agreement dated October 16, 2009, Annexure P6 at p.210, between the parties.
Kolkata Port Trust put out to tender certain works concerning supply, operation and maintenance of cargo handling equipment at berths 2 and 8 in its Haldia dock complex. The first petitioner, participating in the process, emerged as the successful tenderer. Consequently, the parties entered into the agreement dated October 16, 2009. According to the petitioners, though they are fully ready to execute the works, they are unable to work because the port trust has not issued the commissioning certificate.
The principal question that has arisen for consideration is whether the port trust should issue the commissioning certificate.
The admitted position is that the petitioners could not make themselves fully ready to execute the works in terms of the contract within the time stipulated in the contract. Mr Bachawat, counsel for the port trust, has submitted that since the petitioners did not start working in terms of the contract, the importers and exporters are doing the jobs themselves engaging their own people. He has said that no other agency has been engaged for doing the works. As to why the commissioning certificate has not been issued, Mr Bachawat has said that admittedly the petitioners are in breach of the terms and conditions of the contract.
Referring to the documents at pp.139,228,229A and 498, Mr Pal, counsel for the petitioners, has submitted that it is for reasons beyond control that the petitioners could not make themselves completely ready to execute the works. His further submission is that since the works have to be done and it is against the public interest not to permit the petitioners to execute the works for executing which they have already invested around Rs.140 crore, it is necessary that an appropriate order is made directing the port trust to issue the commissioning certificate without any further delay. He has said that for the petitioners' failure to make themselves ready to execute the works, the port trust has already recovered from the petitioners Rs.1.13 crore liquidated damages.
Mr Dutta, counsel for the union of India, has not made any submission on merits. He has said that the central government does not interfere with the policy decisions of the port trust.
Mr Sen has wanted to intervene for one Haldia Dock Bachao Committee. He has said that the committee has initiated a public interest litigation which is on the day's list before the division bench and hence this court should not hear this petition. His further submission is that since the whole matter is being investigated by the Central Bureau of Investigation, it will not be appropriate for this court to make any order in this case in favour of the petitioners.
After hearing counsel for the parties, I am of the view that it will be appropriate to ask the central government to examine the whole matter and decide whether it should direct the port trust to give the petitioners the required commissioning certificate so that they may start executing the works in terms of the contract.
It is evident from cl.1.1.a of the document at p.139 that the works in question have to be executed by someone; that port trust is entitled to get the works done by agency other than the petitioners, if the petitioners fail to execute the works in terms of the contract; and that in such a case the costs of operation will be payable by the petitioners. From the document at p.228, a letter of the port trust dated December 24, 2009 to the first petitioner, it is evident that the central government, presumably in exercise of its statutory powers available under s.111 of the Major Port Trusts Act, 1963, directed the port trust to ask the first petitioner to commission all the equipment in terms of the contract immediately.
The document at p.229A, a letter of the port trust dated January 2, 2010 to the District Magistrate, Purba Medinipur, reveals that the first petitioner, deploying a number of new imported equipment in terms of the contract, making substantial investment, were being prevented outside the premises of the dock complex from taking in dumpers, a piece of equipment that it was to supply and operate in terms of the contract. The port trust requested the district magistrate to see that the first petitioner could take its machinery and pieces of equipment inside the premises of the dock complex.
The documents produced with the petition reveal that the petitioners previously moved this court under art.226 seeking police protection so that they might take their machinery and equipment inside the premises of the dock complex. Hence the case of the petitioners that for reasons beyond control they could not make themselves fully ready to execute the works in terms of the contract, probably, cannot be brushed aside altogether. It cannot be disputed that public interest is intimately associated with the execution of the works. For these reasons, I think it is necessary to ask the central government to examine the whole matter and decide whether it should give a specific direction to the port trust to issue the required commissioning certificate.
I have sought Mr Pal's views and he has left the matter to the court. Mr Bachawat has said that he is not in a position to say anything with respect to the opinion I have formed. Mr Dutta has said that he finds no reason to object to an order directing the central government to examine the whole matter, but that it will be appropriate to give the central government a reasonable time to give the decision. Mr Sen has said that the matter should not be sent to the central government. I am of the view that on the facts, it will be appropriate to make an order asking the central government to decide the question noted hereinbefore.
For these reasons, I dispose of this petition ordering as follows. Within seven days from the date of communication of this order and after giving the petitioners, the port trust and any other person or persons the central government thinks necessary opportunity of hearing, the central government in its ministry of shipping shall give a reasoned decision, closely examining the facts and circumstances, especially those stated in the representation dated March 9, 2010 (at p.498), whether it will direct the port trust to give the petitioners the commissioning certificate. The decision shall be communicated to all at once.
It is hoped that while taking the decision the central government will keep in mind the public interest, and especially the interest of the State of West Bengal, involved in the whole matter. It is made clear that allegations made in the petition shall not be deemed to be admitted by the respondents, and that all points raised by the petitioners shall remain open. No costs. Certified xerox.
(Jayanta Kumar Biswas, J.)