Kerala High Court
Golden Importers vs Union Of India on 22 July, 2020
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 22ND DAY OF JULY 2020 / 31ST ASHADHA, 1942
WA.No.870 OF 2020
[AGAINST THE ORDER DATED 30.06.2020 OF A LEARNED SINGLE JUDGE OF THIS COURT
IN WP(C) NO.11958/2020(T)]
APPELLANT/PETITIONER:
GOLDEN IMPORTERS,
ROOM NO.11/711, GOLDEN TOWER,
WADAKANCHERY BUS STAND, WADAKANCHERY,
KERALA-680 582,
REPRESENTED BY ITS MANAGING PARTNER, ABDUL RAHIMAN.
BY ADVS. SRI.ASWIN GOPAKUMAR
SRI.ANWIN GOPAKUMAR
SRI.K.AMAL NATH NAIK
SRI.NIRANJAN SUDHIR
SMT.FEMY ANN JOHNSON
SRI.KANDAMPULLY VIKRAM
RESPONDENTS/RESPONDENTS:
1 UNION OF INDIA,
MINISTRY OF SHIPPING TRANSPORT BHAVAN, 1, PARLIAMENT STREET,
NEW DELHI-110 001 REPRESENTED BY ITS SECRETARY.
2 DIRECTOR GENERAL OF SHIPPING
9TH FLOOR, BETA BUILDING, I-THINK TECHNO CAMPUS,
KANJUR VILLAGE ROAD, KANJUR MARG (E), MUMBAI-400042.
3 MSC AGENCY (INDIA) PVT. LTD.,
IST FLOOR, WILLMONT PARK, WARRIAM ROAD, PALLIMUKKU,
COCHIN-682 016, REPRESENTED BY ITS MANAGING DIRECTOR.
4 OMEGA SHIPPING AGENCIES PVT. LTD.,
PAUL ABRAO AND SONS BUILDINGS, SUBRAMANIAM ROAD,
WILLINGDOWN ISLAND, COCHIN, KERALA-682 003,
REPRESENTED BY ITS MANAGING DIRECTOR.
5 CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS
DEPARTMENT OF REVENUE, MINISTRY OF FINANCE,
GOVERNMENT OF INDIA ROOM NO.501, 5TH FLOOR,
HUDCO VISHALA BUILDING, BHIJAKI CAMA PLACE,
NEW DELHI-110066 REPRESENTED BY ITS CHAIRMAN.
W.A.Nos.870&885/2020 2
6 COCHIN PORT TRUST,
WILLINGDON ISLAND, KOCHI, KERALA-682 009,
REPRESENTED BY ITS CHAIRMAN.
R1 BY ADV. SHRI P. VIJAYAKUMAR, ASG OF INDIA
R3 & R4 BY ADVS. SRI. S. RAMESH BABU (SR.)
SRI.PRANOY K.KOTTARAM
R5 BY ADV. SRI. SREELAL N. WARRIER, SC
R6 BY ADV. SRI. V. ABRAHAM MARKOSE
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13-07-2020, ALONG WITH W.A.
NO.885/2020, THE COURT ON 22-07-2020 DELIVERED THE FOLLOWING:
W.A.Nos.870&885/2020 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 22ND DAY OF JULY 2020 / 31ST ASHADHA, 1942
WA.No.885 OF 2020
[AGAINST THE ORDER DATED 30.06.2020 OF A LEARNED SINGLE JUDGE OF THIS COURT
IN WP(C) NO.12256/2020(T)]
APPELLANT/PETITIONER:
SAKTHI TARPAULIN COMPANY, VILAYANCODE P.O.,
PARIYARAM, ALAKYAMPALAM, KANNUR-670501, INDIA,
REPRESENTED BY ITS MANAGING PARTNER.
BY ADVS. SRI.ASWIN GOPAKUMAR
SRI.ANWIN GOPAKUMAR
SRI.K.AMAL NATH NAIK
SRI.NIRANJAN SUDHIR
SMT.FEMY ANN JOHNSON
SRI.KANDAMPULLY VIKRAM
RESPONDENTS/RESPONDENTS:
1 UNION OF INDIA, MINISTRY OF SHIPPING,
TRANSPORT BHAVAN, 1, PARLIAMENT STREET, NEW DELHI-110001,
REPRESENTED BY ITS SECRETARY.
2 DIRECTOR GENERAL OF SHIPPING, DIRECTORATE GENERAL OF SHIPPING,
9TH FLOOR, BETA BUILDING, I-THINK TECHNO CAMPUS, KANJUR VILLAGE
ROAD, KANJURMARG(E), MUMBAI-400042.
3 CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS DEPARTMENT OF
REVENUE, MINISTRY OF FINANCE, GOVERNMENT OF INDIA, ROOM NO.501,
5TH FLOOR, HUDCO VISHALA BUILDING, BHIJAKI CAMA PLACE,
NEW DELHI-110066, REPRESENTED BY ITS CHAIRMAN.
4 COCHIN PORT TRUST, WILLINGDON ISLAND, KOCHI, KERALA-682009,
REPRESENTED BY ITS CHAIRMAN.
5 MAERSK LINE INDIA PVT. LTD., UNITOWER 5TH FLOOR,
DOOR NO.60/54 A-9 A-10 A-11, PANAMPILLY NAGAR, COCHIN-682036,
REPRESENTED BY ITS MANAGING DIRECTOR.
R1 BY ADV. SHRI P. VIJAYAKUMAR, ASG OF INDIA
R3 BY ADV. SREELAL N. WARRIER
R5 BY ADV. SRI. PRANOY K.KOTTARAM
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13-07-2020, ALONG WITH W.A.
NO.870/2020, THE COURT ON 22-07-2020 DELIVERED THE FOLLOWING:
W.A.Nos.870&885/2020 4
JUDGMENT
Dated this the 22nd day of July, 2020 S.Manikumar, CJ.
Instant writ appeals are filed against order dated 30.06.2020 passed by a learned single Judge of this Court in W.P.(C) No.11958 of 2020 and connected cases. By the said order, writ petitions were admitted and the interim relief sought for by the petitioners was declined. However, the learned single Judge ordered that the payment of container detention charges or other penal charges by the petitioners for release of the cargo covered by Bills of Lading shall be provisional and subject to further orders in the writ petitions.
2. Short facts leading to the filing of instant appeals are that,-
appellant in W.A. No.870 of 2020 is a partnership firm registered under the Partnership Act, 1932, and engaged in the business of importing and subsequently distributing and selling of varied materials, including Galvanized Steel Coils, to entities in and around the State of Kerala, having PAN AASFG7146HFTOO1.
3. Appellant in W.A. No.885 of 2020 is engaged in the business of importing and subsequently distributing and selling of varied materials, including grade LLD Polythene, to entities in and around the State of Kerala, having PAN ABJFS5503JFT001.
W.A.Nos.870&885/2020 54. In the appeals, both the appellants are represented by their Managing Partners. Respondent No.1 is the Ministry of Shipping under the Government of India and the apex body for formulation and administration of rules, regulations and laws relating to shipping.
Respondent No.2 is the statutory Maritime authority, appointed by Government of India and it exercises the powers and functions conferred under the Merchant Shipping Act, 1958 and responsible for implementation of the provisions of Act, 1958. Respondent No.3 in W.A. No.870/2020 is an Indian agent of Mediterranean Shipping Company (MSC) S.A., a ship liner engaged in the marine transport of the containers. He is totally responsible for all the activities of the said Company in India.
5. In the course of business, appellant in W.A. No.870 of 2020 imported approximately 862 tons of Galvanized Steel Coils stuffed in 31 x 20 foot containers from China. He has stated that those containers were imported in batches of 6 x 20, 7 x 20, 8 x 20 and 10 x 20 and accordingly, the shipments having departed from Chinese ports on 14.03.2020, 14.03.2020, 28.03.2020 and 05.04.2020, arrived at Vallarpadom Port on 13.04.2020, 13.04.2020, 17.04.2020 and 05.04.2020 respectively, as is evident from Exhibit-P1 series Bills of Lading.
6. Similarly, in W.A. No.885 of 2020, the appellant imported approximately 100 tons of Borstar FB2230 LLD Polythene packed in 3960 W.A.Nos.870&885/2020 6 stuffed in 4 x 4-foot containers from Abu Dhabi, United Arab Emirates (UAE) in two batches consisting of 2 x 40-foot containers each and accordingly, the shipments having departed from Khalifa Bin Salman Port on 24.04.2020 and 07.05.2020, reached Cochin on 11.05.2020 and 25.05.2020 respectively.
7. Meanwhile, due to the outbreak of COVID-19 pandemic, China underwent a massive and complete lockdown which entirely prohibited movement by any individual in the country. Recognizing the potentially cascading effects of disruption of China's supply chain industry, Ministry of Finance vide Exhibit-P2 Office Memorandum No.F.18/4/2020-PPD dated 19.02.2020 has clarified that said disruption of supply chains due to the spread of Coronavirus in China or any other country will be covered in the Force Majeure clause. Upon declaration of COVID-19 as a pandemic by World Health Organisation and with the number of deaths increasing, Ministry of Home Affairs vide Order No.40-3/2020-DM-I(A) dated 24.03.2020 declared a nationwide lockdown till 14.04.2020 and declared the lockdown measures to be put in place. Thereafter, as per addendum issued on 25.03.2020 to the abovesaid order, Ministry of Home Affairs exempted seaports and its operational organisations from lockdown, to ensure regular supply of goods.
8. Appellants have further contended that in order to provide much W.A.Nos.870&885/2020 7 needed relief to the stakeholders in supply chain logistics industry, in the larger interest of the consumer, 2nd respondent-Director General of Shipping, Mumbai, issued Exhibit-P3 order dated 29.03.2020 advising shipping lines not to impose any container detention charge on import and export shipments for the period from 22.03.2020 to 14.04.2020 (both days inclusive) over and above any free time arrangement that was agreed upon inter se the parties. The 1st respondent-Union of India, thereafter issued Exhibits-P4 and P5 orders dated 31.03.2020 and 21.04.2020, which mandate that each major port shall ensure that no penalties, demurrage, charges, fees, rentals are levied on any port user, including Shipping Lines, in order to facilitate a smooth transition into the end of lockdown, the implication being that the said exemptions and remissions would be passed along the chain of transactions to importers like the appellants.
9. Appellants have further contended that due to the nationwide lockdown and the force majeure situation, services critical to the supply chain logistics industry like courier of original documents required to secure the release of imported cargo were unavailable and it resulted in deadlocks/inordinate delays for clearance of import cargo.
10. While matter stood thus, appellant in W.A. No.870/2020 approached respondent Nos.3 and 4 - MSC Agency (India) Pvt. Ltd, Cochin;
and Omega Shipping Agencies Pvt. Ltd., Kerala, both represented by their W.A.Nos.870&885/2020 8 managing partners, seeking waiver on account of the extended lockdown, in tune with the objective sought to be achieved in Exhibits-P5 and P6, and in-principle agreement was arrived at between the parties.
11. Similarly, in W.A. No.885/2020, appellant has sought for extended free time from the 5th respondent - Maersk Line India Pvt. Ltd., Cochin, represented by its Managing Director, which was granted till such time as the original documents could be arrived. On enquiry, the appellant came to know that the courier through DHL was still undelivered. Thereafter, they approached the consignor and instructed the 5th respondent to provide final delivery orders, as against the photocopies of original documents.
12. However, the respondents without any intimation regarding their change of stance, mulcted detention and demurrage charges vide Exhibit-P8 series, completely ignoring the objectives behind Exhibits-P2 to P7. The appellant in W.A. No.885/2020 further contended that the original documents of import containers were still in transit at the time of issuing Exhibit-P8 series, as evident from Exhibit-P9 series. They further contended that in view of the fact that lockdown has highly prejudiced many importers like the appellants, by the charge of detention, demurrage and ground rent, it is only just and proper that the validity of Exhibits-P5 and P6 orders dated 21.04.2020 and 22.04.2020 be extended.
W.A.Nos.870&885/2020 913. In the above circumstances, the appellants have filed W.P.(C) No.11958 & 12256 of 2020 seeking the following reliefs:
(i) Issue a writ of mandamus or any other appropriate writ, direction or order, commanding respondents 1 and 2 to ensure strict compliance of Order No.PD-14033/4/2020-PD-
VII dated 21.04.2020 (Ext.P5) and DGS Order No.11 of 2020 dated 22.04.2020 (Ext.P6);
(ii) Extend the validity of DGS Order No.11 of 2020 dated 22.04.2020 (Ext.P6) till 30.06.2020 or till such date that this Court deems fit and proper in the peculiar facts and circumstances of the case;
(iii) Issue a writ of mandamus or any other appropriate writ, order or direction, commanding the respondents to permit the petitioner herein to clear the imports covered by Exhibit- P1 series Bills of Lading by extending the benefit of Exhibit- P6 and to reimburse any amounts already paid thereto;
14. Before the writ court, the 3rd respondent in W.A. No.870 of 2020, viz., MSC Agency (India) Pvt. Ltd., Cochin, represented by its Managing Director, has filed a counter affidavit refuting all the allegations raised by the appellant. In the counter affidavit, 3 rd respondent has contended, inter alia, that granting the reliefs sought for in W.P.(C) No.11958/2020 would result in arbitrariness/inequalities and unreasonableness, as it would protect the importer i.e., the petitioner, but not take into account the losses faced by the shipping lines such as the 3rd respondent's Principal, which are much higher compared to the W.A.Nos.870&885/2020 10 importer. The subject matter of the writ petition in essence is a private lis between the importer and the shipping lines and there is no compelling reasons for this Court to exercise its jurisdiction under Article 226 of the Constitution of India.
15. Respondent No.3 has further contended that the genesis of the writ petition is that the petitioner was unable to take delivery of the containers discharged at the port by shipping lines, which is not only false but also baseless. By way of an Addendum to Guidelines dated 25 th March, 2020 issued by the Ministry of Home Affairs, Government of India permitted certain services, including ports and terminals, to operate as 'essential services' to ensure that supply chain was not disrupted. As a part of these essential services, despite operational constraints and challenges, shipping lines such as the 3 rd respondent's Principal, continued to remain functional with their staff continuously working from home, in accordance with the directives issued by the Government. Pertinently, even during the lockdown, the 3rd respondent's Principal continued to discharge containers at various ports across India and importers not only took delivery of the same, but also returned the destuffed containers.
The available data unequivocally demonstrates that supply chain of imports was marginally affected and that too, for a brief period. Despite the same, respondent No.4's Principal voluntarily extended a one-time W.A.Nos.870&885/2020 11 benefit of waiver of detention charges from of 22 nd March, 2020 to 3rd May, 2020, in addition to the contractually agreed free time of 14 days, on compassionate and humanitarian grounds. Furthermore, during the above lockdown period, respondent No.4's Principal continued to extend all services to its clients, including importers such as the petitioner, without any major disruptions. Employees of respondent No.4 and its Principal continued to work from home, to ensure that the import process continued seamlessly. According to the 3 rd respondent, a careful examination of the writ petition reveals that the real purpose of filing it is a mala fide intention of an importer avoiding business losses at the cost of the Shipping Lines. Under the guise of violation of fundamental rights, the petitioner is attempting to renege on its binding contractual obligations with private parties i.e. respondent No.3's Principal.
16. Respondent No.3 has further contended that it is one of the agents of its Principal (MSC Mediterranean Shipping Company S.A.), (Respondent No.3's Principal) in India. It is pertinent to note that the 3 rd respondent is not even a contractual party to the present dispute. The shipping lines are not arrayed as parties to the present writ petition.
Therefore, the writ petition ought to be dismissed in limine on the ground of mis-joinder of necessary parties. Respondent No.3 has referred to two advisories viz., (i) advisory dated March 29, 2020 i.e. Order No.7/2020 W.A.Nos.870&885/2020 12 issued by Director General of Shipping, whereby shipping lines were advised not to impose any container detention charges on import and export shipments for the period between March 22, 2020 and April 14, 2020; and (ii) advisory dated April 22, 2020 i.e. Order No.11/2020, extending the validity of its First and Second Advisory till May, 2020. In order to appreciate the controversy raised in the writ petition, it is necessary to first set out the manner in which container shipping business is conducted and detention charges are collected from clients (which includes importers/consignees such as the petitioner). The same is extracted hereunder:
a) The Respondent No.3's Principal are inter alia engaged in the business of carriage of containerized cargo by sea;
b) Clients (shipper/exporter/consignee/importer) (herein-
after referred to as "Client) approach shipping lines, such as the Respondent No.3's Principal for the carriage of containerized cargo by sea (i.e. from the port of loading to the port of discharge) and/or for transport of containerized cargo (i.e. from the place of receipt to the place of delivery). Shipping lines, such as the Respondent No.3's Principal, thereafter provide a quote for the same to the client and the consideration payable to such shipping lines includes various charges such freight, local other charges, terminal handling charges etc.;
c) Upon acceptance of the quotation, shipping lines may issue a booking note/booking confirmation recapitulating the details of the order;
d) Thereafter, the client provides shipping instructions which, inter alia, include details of the shipper (exporter) and consignee (importer) for the purpose of carriage of the containerized cargo. Subsequently, empty containers are provided by the shipping lines to the Client. Cargo is W.A.Nos.870&885/2020 13 stuffed into the shipping lines' containers and the containerized cargo is loaded on board the vessel. Upon such loading, the shipping lines issue the Bill of Lading and Seaway Bill, which evidences the contract of carriage between the parties. The Bill of lading on its reverse have the terms and conditions mentioned. This forms the binding contractual obligations between the carrier and the Client. Pertinently in the facts of the present, case, the agent of shipping line such as the Respondent No.3 are not party to such contracts of carriage.
e) Once the container arrives at the port of discharge, importers are given a free period, which may range depending on the negotiation contract upto 21 days, to destuff the container (i.e. remove their cargo and deliver the empty container back to the shipping lines). In the event that an importer does not return the empty container to the shipping lines within the contractually agreed period, a detention charge is levied. The detention charges and free days are based on binding agreement between the parties. These detention charges form an important part of the agreement between the parties, inter alia, on account of the fact that containers are important assets of shipping lines and their earnings are directly dependent on the same. Containers, including empty containers, are an important component in the complete supply chain of import and export. Without empty containers, shipping lines such as the Respondent No.3's Principal may be unable to accept future orders thereby resulting in the sailing of empty vessels from India causing immense losses.
f) In fact, the heads of all charges payable to shipping lines such as the Respondent No.3's Principal, including the above detention charge, are conveyed to and accepted by the Client prior to the issuance of the Bill of Lading. Pertinently, at the time of booking offering quotation, the shipping lines make these charges involved in the transportation of the containerized cargo available to their Client. The tariff detailing the rates of such charges can also be verified on the shipping line's website. Therefore, the rates of all such charges are fixed and agreed to / accepted by the Client. Thus, the terms of contract are negotiated and accepted prior to issuance of Bill of Lading which evidences the contract between the W.A.Nos.870&885/2020 14 parties. Pertinently, Clients/ importers are contractually bound to the pay all the aforesaid charges to shipping lines, including detention charges.
g) It is pertinent to note that such detention charges are in addition to and separate from the charges levied by Ports / Terminal such as ground rent charge. Detention charges are payable by an importer to shipping lines such as the Respondent No.3's Principal, as a fee towards using the container for any period beyond the contractually agreed free period and are independent of any charges levied by the Port such as demurrage or ground rent Pertinently, any benefit received from Ports, such as waiver of demurrage or ground rent, have been consequently passed on to the client i.e. the importer in the present case.
17. Respondent No.3 has further contended that the abovesaid advisories are not intended to be mandatory or binding and, therefore, the same is undisputed and clarified in all DG orders. By way of the advisories, shipping lines such as respondent No.3's Principal were advised not to impose any container detention charge for the period 22 nd March, 2020 to 14th April, 2020. This advisory was subsequently extended to 3 rd May, 2020. The petitioner cannot seek declaration of DG Shipping orders as mandatory when the orders themselves clarify that they are advisory.
Therefore, the petitioner is seeking to invoke the powers of this Court to do something indirectly, which cannot be done directly.
18. Respondent No.3 has further contended that it is trite law that a party cannot claim violation of fundamental rights against private parties such as respondent No.3, who is not a "State" within the meaning W.A.Nos.870&885/2020 15 of Article 12 of the constitution of India. As detailed herein, such dispute pertains to private contract between the importers and the shipping lines.
In any event, respondent No.3 cannot be said to be "State", and therefore, enforcement of contractual obligations by private parties cannot lead to deprivation or violation of fundamental rights guaranteed to the petitioner. Hence, the writ petition is not maintainable.
19. Respondent No.3 have further contended that the advisories are issued without any authority or jurisdiction as there is no provision under the Merchant Shipping Act which empowers Director General of Shipping to issue them. That apart, the circular issued by the Director, Anti-Smuggling, Central Board of Indirect Taxes and Customs has been issued without any authority under the Customs Act, 1962. That apart, it is contended that the Directorate General of Shipping is a body created under the Merchant Shipping Act, 1958 ("MS Act"). The MS Act, inter alia, governs the powers and functions of Director General of Shipping and does not grant the Director General any power or authority to direct shipping lines to waive any of their charges, including detention charges.
Accordingly, for the sake of argument, if the advisories are treated to be mandatory, they would be ex-facie ultra vires the provisions of MS Act.
Therefore, these orders consciously omit to mention the source of power under which, the advisories have been issued. In effect, respondent No.3 W.A.Nos.870&885/2020 16 has sought for unilateral modification of a private contract, agreed to between shipping lines and importers, which is illegal and involves several disputed questions of fact, and is therefore, beyond the scope of Article 226 of the Constitution of India.
20. Respondent No.3 has further contended that by seeking extension of the advisories (Ext.P6 order) beyond 3 rd May, 2020, the petitioner has sought for a direction against respondents 1 and 2 to legislate. According to the 3 rd respondent, the above is a policy matter and it is trite law that the petitioner cannot seek a writ of mandamus against Legislature or executive asking them to legislate or seek issuance of delegated Legislature. Further, it is settled law that a writ court cannot direct a Legislature to enact a particular law or a delegated legislation.
Similar principles would apply for a delegated legislation.
21. Respondent No.3 has further contended that a careful examination of the writ petition reveals that the real purpose of seeking waiver of the petitioner's contractual liabilities towards the shipping lines is not on account of their alleged inability to collect/return containers, but with the mala fide intention of avoiding business losses incurred by him on account of their own negligent and/or lackadaisical attitude.
Further, the writ petition is silent about several financial state of shipping lines as respondent No.3's Principal. Numerous shipping lines have been W.A.Nos.870&885/2020 17 forced to take on astronomical amounts of debt to keep their business afloat and ensure that supply chains all over the world remain unaffected, especially during these unprecedented times of pandemic.
22. Respondent No.3 has further contended that despite the lockdown mandated by the Government, shipping lines continued to extend all services to their clients, including importers such as the petitioner, without any major disruptions. Shipping lines' employees, including their agents, continued to work from home to ensure that the import process continued seamlessly. For this purpose, respondent No.3's Principal, inter alia, has amended their regular procedure through the use of electronic facilitation by enabling digital document transaction for release of cargo, thereby also staying in sync with social distancing and safety norms. That apart, respondent No.3's Principal promoted digital payment of all dues for release of cargo and urged clients to use e-portals like OdeX, for electronic invoicing, electronic delivery order or faster payment solutions for faster release of import delivery orders. Further, all other facilities were provided in 'e'-platforms, details of which are also furnished in the counter.
23. Before the writ court, Omega Shipping Agencies Pvt. Ltd., Kerala represented by its Managing Director, the 4 th respondent in W.A. No.870 of 2020, has filed a counter affidavit contending as follows:
W.A.Nos.870&885/2020 18(a) Writ Petition is not maintainable, inter alia, as it seeks
(i) enforcement/extension of advisories that are neither mandatory nor binding: (ii) enforcement and continuance of order / circulars of DG Shipping, which lacks legislative competence or has no authority to issue such advisories qua Shipping lines like respondent No.3; (iii) directions against respondent Nos. 1 and 2 to issue orders / circulars sans any authority in law (like delegated legislation); (iv) mandamus against respondent Nos. 1 and 2, where there is neither any statutory nor any public duty empowering them to exercise such executive and administrative discretion; (v) mandamus (Writ) against private parties with whom the petitioner therein admittedly has a contractual relationship: (vi) directions which would tantamount a direct interference in a privately negotiated contract between parties, (vii) fails to establish violation of any fundamental rights of the Petitioner, (viii) it seeks enforcement of Writ in contractual matters which is not maintainable as the Petitioner has alternative remedies such as filing a Suit; (ix) involves disputed questions of fact; and (x) has been filed against the agents of shipping lines who are not even signatories to the contract with the petitioner. In any event, no relief ought to have been granted against the agents as the dispute of the petitioner is with the principal. Granting the reliefs sought for in the present writ petition would result in arbitrariness/ inequalities and unreasonableness, as it would protect the importer (ie. the petitioner), but not taking into account the losses faced by the shipping lines such as respondent No.4's Principal, i.e., WAN HAI Lines Singapore Pvt. Ltd., which are much higher compared to W.A.Nos.870&885/2020 19 the importer. The subject matter of the writ petition, in essence, is a private lis between importer and shipping lines, and there is no compelling reason for this Court to exercise its jurisdiction under Article 226 of the Constitution of India.
(b) At the outset, respondent No. 4 states that the genesis of the writ petition is that the petitioner was unable to take delivery of containers discharged at the port by shipping lines, which is not only false but also completely baseless.
By way of an Addendum to Guidelines, dated 25 th March, 2020, issued by the Ministry of Home Affairs, Government of India permitted certain services, including Ports and Terminals, to operate as essential services, to ensure that supply chain was not disrupted. As a part of these essential services, despite operational constraints and challenges, shipping lines continued to remain functional with their staff continuously working from home, in accordance with directives issued by the Government. Pertinently, even during the lockdown, respondent No.4's Principal continued to discharge containers at various ports across India and importers not only took delivery of the same, but also returned the destuffed containers. The available data unequivocally demonstrates that supply chain of imports was marginally affected and that too, for a brief period. Despite the same, respondent No.4's Principal voluntarily extended a one-time benefit of a waiver of detention charges from of 22nd March, 2020 to 3 rd May, 2020, in addition to the contractually agreed free time of 14 days, on compassionate and humanitarian grounds. Furthermore, during the period of this lockdown respondent No.4's W.A.Nos.870&885/2020 20 Principal continued to extend all services to its clients, including importers such as the petitioner, without any major disruptions. Employees of respondent No.4 and its Principal continued to work from home, to ensure that the import process continued seamlessly.
(c) Respondent No.4 has further contended that perusal of the writ petition reveals that the real purpose of filing it is a mala fide intention of an importer avoiding business losses at the cost of the Shipping Lines. Under the guise of violation of fundamental rights, the petitioner is attempting to renege on its binding contractual obligations with private parties (d) Respondent Nos. 4 is the agent of its Principal (WAN HAI Lines Singapore Pvt. Ltd.) in India. It is pertinent to note that respondent No.4 is not even a contractual party to the present dispute. The Shipping Lines are not arrayed as parties to the present writ petition. Therefore, the present writ petition ought to be dismissed in limine on the ground of mis-joinder as well non-joinder of necessary parties. In the above circumstances, the 4 th respondent prayed for dismissal of the writ petition with costs."
24. A learned single Judge of this Court passed the impugned order declining the interim relief of provisional release of containers, which according to the appellants, was without properly considering the facts and law presented in the writ petitions. Relevant portion of the impugned order reads thus:
"4. The learned counsel for the petitioners submits that Exhibits-P5 and P6 are reasoned orders passed considering the grievances raised by the stakeholders and on a W.A.Nos.870&885/2020 21 consideration of the necessity for maintaining the logistics chain and thus preserving the economy from further ravages of the lockdown necessitated by the current pandemic. Reliance is also placed on Exhibit P10 interim order dated 25.5.2020 in W.P(C). No.10177/2020.
5. The learned ASGI appearing for the respondents submits that Exhibit P5, which is issued under Section 111 of the Major Port Trust Act, applies specifically to the Major Port Trusts in the country and is in the nature of a directive issued in the background of the unprecedented situation prevalent all over the world. It is stated that the directives contained at paragraph 3(iii) thereof with regard to the Ports ensuring that no penal charges, demurrages, detention charges, dwell time charges, anchorage charges, penal berth hire charges performance related penalties etc. 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 is only an advisory issued to the Port Trust and can, by no stretch of imagination be enforced as against private entities like the shipping lines, their agents or carrying and forwarding agents, who are not directly bound by such directions. It is contended that Exhibit P6 and the earlier DGS orders are specifically time bound and the provision with regard to non charging of detention charges on import and export shipments was in force only upto 3rd May, 2020 and the same has not been extended beyond the said date and that there is no proposal for such extension either. It is stated W.A.Nos.870&885/2020 22 that it is only Exhibit P6 that binds shipping companies and their agents and that the period of such exemption had ended on 3.5.2020.
6. The learned counsel for the 6 th respondent, Major Port Trust, also supports the submissions of the learned ASGI. It is submitted that the Port has not charged any demurrage or detention charges in contravention of the directives issued to it and that the dispute between the petitioner and the shipping agents or the carrying and forwarding agents are strictly contractual in nature and that the Port has no authority to require the waiver of the container detention charges by the private entities, as sought for by the petitioners.
7. The 4th respondent has filed a counter affidavit to oppose the admission of the writ petitions and the grant of the interim relief contending that Exhibit P6 is an advisory, which is neither mandatory or obligatory, and lacks legislative competence, which cannot be extended to the detriment of the private respondents, who are also equally affected by the pandemic and the resultant lock-down. It is stated that if the interim prayer as sought for is issued against private respondents, it would amount to interference in a privately negotiated contract between the parties, which is impermissible in law. It is stated that all due deductions as can be granted in the circumstances had already been extended to the petitioners and that it was not on account of any inconvenience arising due to the lock-down that petitioners have refused to clear the cargo in time. It is contended that the supply chain of imports was only marginally affected, and that too, for a very brief W.A.Nos.870&885/2020 23 period and that the facts pleaded by the petitioners are disputed by the respondents and that in the above circumstances, no interim orders as sought for can be issued. It is further contended that the High Court of Delhi, High Court of Bombay as well as the Apex Court have considered the issue and have declined the interim orders in similar writ petitions. It is also contended that Exhibit P10 was an interim order which was issued without any pleadings having been placed on record and that as such, it is not liable to be followed in a case where the contentions of the parties are before this Court.
8. I have considered the contentions advanced. The learned ASGI has taken a specific contention before this Court as well as before the High Court of Delhi and the Apex Court that Exhibit P6 which is a directive issued to the Shipping Companies and C & F agencies is valid till 3.5.2020 and no further extension is either contemplated or carried out by the competent authority. In respect of the orders issued by the Ministry of Shipping, it is contended that such orders are intended to bind major ports and that they have no operation as far as private entities like the 4 th respondent in these writ petitions are concerned. It is submitted that accepting these contentions and after considering the issue in extenso, the High Court of Delhi as well as the Apex Court have declined interim orders.
9. In the above view of the matter and in view of the specific contentions raised by the Union Government that the orders in question are but advisories issued which have no binding effect on the private entities like the respondents in these cases and in View of the specific contention that W.A.Nos.870&885/2020 24 the issue is covered by concluded contracts between the parties, I am of the opinion that an interim order as sought for is not warranted in the facts and circumstances of the instant case.
10. The writ petitions are admitted. The respondents appear through the respective counsel. Time is granted to place pleadings on record. However, the interim order sought for is declined. The payment of container detention charges or other penal charges by the petitioner for release of the cargo covered by the Bills of Lading shall be provisional and subject to further orders in this writ petition. Post on 30.7.2020."
25. Being aggrieved, instant writ appeals have been filed on the following grounds.
A) Writ court manifestly erred on law and facts, and ought to have found that upon the declaration of lockdowns successively, 1st respondent, in view of the extraordinary situation and upon a detailed examination of all factors and considering the representations from various stakeholders, had decided to issue directives for exemption and remission of container detention charges on import and export shipments. The 2 nd respondent, being the authority to ensure implementation of directives of the 1st respondent, had issued mandates to all ports to ensure strict implementation of the directives. However, consequent to the third and fourth phases of extension of nationwide lockdown by Union of India, the state of affairs having remained the same as in the 1st and 2nd phases, the 2nd respondent ought to have W.A.Nos.870&885/2020 25 been extended such exemptions and remissions till such date as when the immediate and direct consequences of the national lockdown are no longer severely affecting the EXIM trade. In such circumstances, it is necessary that specific directions shall be issued to respondents 1 and 2, to extend the validity of Ext.P6 DGS Order No. 11 of 2020 dated 22.04.2020 till 30.06.2020 being the bare minimum time needed for the processes to regularize themselves. However, no reference whatsoever has been made as to these highly relevant aspects of Exts. P2 to P7.
B) Writ court ought to have found that even if there has been any official communication from the 2 nd respondent extending the validity of Ext.P6 order, all shipping companies, carriers and their agents, including respondents 3 and 4, are bound to continue to extend the exemptions to ensure that the desired object of issuing Exts. P2 to P7 are achieved and maintained during the entire tenure of nationwide lockdown. It is apparent on a reading of Exts. P2 to P7 that the sole intention behind issuing the same was that the entire EXIM trade was critically affected by COVID-19 lockdown, facing issues ranging from non-availability of transport facilities and truck drivers, collapse of daily movement of trucks, non- availability of loading and unloading labour at the port, and to delay the closure of ports/airports during lockdown. It is further stated that there is no intentional default on the part of the appellants and the only reason that the appellants were unable to clear the imports is due to the peculiar nature of the lockdown which brought the entire country to a halt. In such circumstances, and in W.A.Nos.870&885/2020 26 view of Exts.P2 to P7, respondents 3 and 4 are not justified in law or in facts, in issuing Ext.P8 series demands for detention charges. Therefore, Ext.P8 series is illegal and unsustainable and contrary to the objectives sought to be achieved vide Exts.P2 to P7.
C) It is further contended that the writ court has, in the impugned order, failed to appreciate that the appellants are facing ever increasing detention charges due to the stubborn and unjust position taken by respondents. Appellants are being forced into a position of cascading liabilities owing to reasons entirely out of their control as a consequence of the global COVID-19 pandemic and the same warrants interference of this Court in extending the beneficial contents of Exts.P5 and P6, for a period, so as to permit the EXIM trade to regularize and revitalize in an organic manner without suffering a catastrophic meltdown. Writ court has failed to take into consideration the fact that Regulation 6(9) of the Handling of Cargo in Customs Areas Regulations, 2009 makes it mandatory for customs cargo service providers to abide by all the provisions of the Act and the Rules, Regulations, notifications and orders issued thereunder. Thus, respondents are duty bound in law to comply with the mandate of Exts.P2 to P7, failing which, their license itself may be suspended by the authorities. Respondents have clearly exhibited defiance to the directives issued and, therefore, the issuance of Exts.P8 series demands for detention during the national mandatory lockdown period is illegal and unsustainable.
W.A.Nos.870&885/2020 27D) It is further contended that even the Hon'ble Supreme Court has observed that the COVID-19 pandemic is a highly unfortunate situation where a large number of people have suffered and that no one should be permitted to profit off of this misery and that these difficult times require the understanding and compassion of every single person. Writ court has not taken into consideration that there was no bar on the 5th respondent in releasing the imported goods to the appellant and disregard the fact that by refusing to waive the detention and demurrage charges on the imported goods in line with the objective sought to be achieved vide Exts.P2 to P7. According to the appellants, the act of respondents in ignoring these aspects and subsequently raising Ext.P8 series demands on the appellants is nothing, but an attempt of profiteering off the COVID-19 pandemic.
E) Learned single Judge has not considered the contention that the appellants are trying to make arrangements to clear the imports and, therefore, sought for a direction to the respondents to permit them to clear the imports by extending the validity of Order No.11 of 2020 dated 22.04.2020 till 30.06.2020 as envisioned in Ext.P5. Appellants know that similar incidents are occurring to many other hapless importers and if Exts.P5 and P6 are not extended to cover the repercussions caused by COVID- 19 pandemic resulting in the unavoidable delay in arranging the clearance process for imported containers, irreparable injury and hardship would be caused to them and others importers, despite their utmost diligence.
W.A.Nos.870&885/2020 28F) Appellants have further contended that the impugned order is silent regarding the fact that the appellants have repeatedly requested the concerned respondents to abide by the regulations and directives issued by respondents 1 and 2 and they are intentionally neglecting the directives and orders issued by respondents 1 and 2. Further, the appellants have clearly demonstrated to the respondents concerned that the matter is entirely out of their control and has requested to pay heed to the objective sought to be achieved by Exts.P2 to P7. It is also contended that the respondents are deriving the benefit from the waivers permitted to them under Exts.P2 to P7 and it is explicitly stated that the objective of these exemptions, remissions and waivers provided by respondent 1 and 2 to various port users is to assist in stabilizing the supply chain business and ultimately, provide benefit to the end user the consumer. In the case on hand, respondents Nos. 3 and 4 seek to appropriate the beneficial provisions of Exts. P2 to P7, meant for the end consumer, for their personal illegal enrichment by knowingly refraining from passing along the benefits received by virtue of Exts. P2 to P7. This fact has been completely ignored in the impugned order while considering the urgent need for interim relief.
G) It is most respectfully submitted that the writ court has erred in law and has failed to recognize that Ext.P2 effectively declares a force majeure situation in the country and clearly states that the COVID-19 pandemic is to be treated as a case of natural calamity on par with an act of God, as on 19.02.2020. This position is further W.A.Nos.870&885/2020 29 reinforced in Ext.P4 on 31.03.2020 and in Ext.P5 on 21.04.2020. The free flow of goods in the country was severely disrupted and as unequivocally stated in Exts.P4 and P5, the force majeure situation would continue till such time as notified otherwise by the relevant authorities, which has not occurred as on the date of filing the writ petitions. In these continued extraordinary and unusual circumstances, appellants deferentially seek the just interdiction of this Court in setting aside the impugned order and directing respondents Nos. 1 and 2 to extend the validity of Ext.P6 order till such date as the prevailing situation has been deemed to come to end by the appropriate subordinate authority of the 1st respondent.
H) It is further contended that writ court has overlooked the contentions raised by the appellants in the respective writ petitions with regard to Section 2(1)(a)(iv) of the Essential Services Management Act, 1968, which specifically states that any service connected with loading, unloading, movement of storage of goods in any port is as an essential service and this inclusion in the Act fully categorizes the critical role played by it and indicates that the disruption of same would result in bleak consequences for the economy in the country. This principle has been expressly applied by the Ministry of Home Affairs as evinced by how it has sought to exclude the same from the deleterious effects of the nationwide lockdown. However, despite the aforementioned and best efforts of the respondents 1 and 2 vide Exts.P2 to P7, the supply chain industry faced severe disruptions by virtue of the interconnected nature W.A.Nos.870&885/2020 30 of the EXIM trade with the fall in both the supply and demand side. Admittedly, lockdown was extended till 30.05.2020 and Ext. P5 foresees additional recovery period of thirty days from the end the lockdown, in order to bring the various businesses to a state of comparative normalcy. Appellants further state that in view of the above, it is only just and appropriate that the multitudes of other hapless importers like the appellants were given an opportunity to resume their day-to-day operations without being mulcted with large and artificial demands of sums for detention and demurrage of imported goods that accrued entirely during national lockdown and the same warrants interference of this Court. Instead of deliberating on these aspects, writ court has taken the contentions of the respondents at the face value and determined that no relief is necessary for the appellants, who are facing an existential crises."
26. Based on the grounds, Mr. Aswin Gopakumar, learned counsel for the appellants, reiterated that the writ court failed to consider the advisories and periodical orders, issued during COVID-19 lockdown period by the Ministry of Finance, Department of Expenditure, Government of India, New Delhi, Director General of Shipping, Mumbai respectively, taking note of the issues ranging from transport difficulties, non-
availability of loading and unloading at the ports, closure of ports during the lockdown period, and that there was intention on the part of the appellants to take delivery of the consignments.
W.A.Nos.870&885/2020 3127. In the light of the advisories and orders of the Director General of Shipping, Mumbai read with regulations issued under the Customs Regulations, 2009, respondents are bound to comply with the mandate of Exhibts-P2 to P7, and therefore, the demand for detention and demurrage, and other charges is illegal and unsustainable. Referring to the force majeure situation in the country, taken note of in Exhibit-P2 dated 19.02.2020, issued by Ministry of Finance, Department of Expenditure, Government of Kerala, New Delhi, that COVID-19 pandemic has to be treated as a national calamity in part with an act of God, learned counsel for the appellants contended that the writ court has failed to advert to the same. Learned counsel further contended that the advisories are issued with reference to major ports and that the same were considered with reference to the averments in the case decided by the Delhi High Court and thus, it is distinguishable with the case on hand.
28. Learned counsel for the appellants further contended that the wit court has failed to consider the earlier interim order dated 25.05.2020 in W.P.(C) No.10177 of 2020 and its applicability to similarly placed persons like the appellants and that there is violation of Article 14 of the Constitution of India. It is his further contention that the order of the Delhi High Court in C.M. No.10546 of 2020 in W.P.(C) No.3029 of 2020 dated 22.05.2020 cannot be treated as a precedent and, therefore, not W.A.Nos.870&885/2020 32 applicable to the case on hand.
29. Per contra, learned Senior Counsel Sri. Ramesh Babu, assisted by Mr. Pranoy K.Kottaram, learned counsel for respondent No.3, submitted that in matters seeking extension of the benefit pursuant to the directives and advisories issued by respondents 1 and 2, filed before the Hon'ble Delhi High Court in M/s. Polytech Trade Foundation v. Union of India and Ors. [WPC. No.3029/2020] and the Hon'ble Supreme Court, no interim order has been granted. Same directives and advisories have been relied on in the instant case as well. (Exhibits-P3 and P6).
30. Exhibits-P3 and P6 are only advisories issued by the 2 nd respondent, which are not mandatory or obligatory. However, respondents 3 and 4 have complied with those advisories and did not levy any container detention charge on the petitioners till 03.05.2020. Further, Exhibits-P3 and P6 are specifically time bound (till 03.05.2020) and there has been no further extension of those advisories.
31. Exhibits-P3 and P4 issued by the 1 st respondent, under Section 111 of the Major Port Trust Act, 1963, are applicable only to Major Ports and to containers within the port premises. As the containers of the petitioners are not stacked within the port premises, Exhibits-P4 and P5 will have no application in the instant case. He further submitted that sufficient safeguards have been provided in the impugned interim order, W.A.Nos.870&885/2020 33 and that there is no merit in the writ appeals warranting interference.
Further contention has been made that writ petition is not maintainable against the 3rd respondent, as the matter between the appellants and the 3rd respondent is purely contractual.
32. Heard learned counsel for the parties and perused the material available on record.
33. Office Memorandum dated 19.02.2020 (Exhibit-P2) issued by the Ministry of Finance, Government of India, Department of Expenditure, New Delhi, is extracted hereunder:
"No.F.18/4/2020-PPD Government of India Ministry of finance Department of Expenditure Procurement Policy Division ******* Room No.512, Lok Nayak Bhavan, New Delhi, dated the 19th February, 2020 OFFICE MEMORANDUM Subject: force Majeure Clause (FMC) Attention is invited to para 9.7.7 of the "Manual for Procurement of Goods, 2017" issued by the Department, which is reproduced as under:
A Force Majeure (FM) means extraordinary event or circumstance beyond human control such as an event described as an act of God (like a natural calamity) or events such as a war, strike, riots, crimes (but not including negligence or wrong-doing, predictable/ seasonal rain and any other events specifically excluded W.A.Nos.870&885/2020 34 in the clause). An FM clause in the contract frees both parties from contractual liability or obligation when prevented by such events from fulfilling their obligations under the contract. An FM clause does not excuse a party's non-performance entirely, but only suspends it for the duration of the FM. The firm has to give notice of FM as soon as It occurs and it cannot be claimed ex-post facto. There may be a FM situation affecting the purchase organisation only. In such a situation, the purchase organisation is to communicate with the supplier along similar lines as above for further necessary action. If the performance in whole or in part or any obligation under this contract Is prevented or delayed by any reason of FM for a period exceeding 90 (Ninety) days, either party may at its option terminate the contract without any financial repercussions on either side.
2. A doubt has arisen if the disruption of the supply chains due to spread of corona virus in China or any other country will be covered in force Majeure Clause (FMC). In this regard it is clarified that it should be considered as a case of natural calamity and FMC may be invoked, wherever considered appropriate, following the due procedure as above Sd/-
(Kotluru Narayana Reddy) Deputy Secretary to the Govt. of India To Secretaries of all Central Government Ministries/Departments"
34. DGS Order No.07 of 2020 dated 29.03.2020 (Exhibit-P3) issued by the Directorate of General Shipping, Mumbai is extracted hereunder:
W.A.Nos.870&885/2020 35"No. MTO/Review Schedule-ll(1)/2019 Dated.29.03.2020 DGS Order No.07 of 2020 Sub.: Advisory on non-charging of container detention charges on import and export shipments
1. Whereas, the Ministry of Home Affairs, Government of India has issued order No.40-3/2020-DM-l (A) dated 24.03.2020 to impose a complete lockdown in India for a period of 21 days in view of the threat posed by the spread of COVID-l 9 epidemic.
2. Whereas, the Ministry of Home Affairs has vide its order No.40-3/2020-DM-l (A) dated 25.03.2020 issued an addendum to the Guidelines annexed to the said order, exempting seaports and its operational organisations from this lockdown to ensure regular supply of goods in the country.
3. Whereas, the Government is working towards smooth functioning of the Ports and its operational organisations, some delays in evacuation of goods from the ports have become inevitable due to the disturbance of the downstream services.
4. Whereas, as a result of these developments some cargo owners have either suspended their operations or are finding it difficult to transport goods/cargo and complete the paper work, resulting in detention of containers without their fault.
5. Whereas, some shipping lines have on their own volition, decided to suspend imposition of any container detention charges for a limited period to give relief to the importers and exporters. There is, however, a need for more clarity in this respect for smooth functioning of the trade and maintenance of supply chain in the country.W.A.Nos.870&885/2020 36
6. Now therefore, in order to maintain proper supply lines at the Indian seaports the shipping lines are advised not to impose any container detention charge on import and export shipments for the period from 22nd March, 2020 to 14th April, 2020 (both days inclusive) over and above free time arrangement that is currently agreed and availed as part of any negotiated contractual terms. During this period, the shipping lines are also advised not to impose any new contractual terms. During this period the shipping lines are also advised not impose any new or additional charge. This decision is purely a onetime measure to deal with the present disruptions caused by spread of COVID-19 epidemic.
Sd/-
(Amitabh Kumar) Director General of Shipping"
35. Orders dated 31.03.2020 (Exhibit-P4) and 21.04.2020 (Exhibit-
P5) issued by the Director, Government of India, Ministry of Shipping to the Chairperson & CMD of all major ports, is extracted hereunder:
No. PD-14300/4/2020-PD VII Government of India Ministry of Shipping Transport Bhawan, 1, Parliament Street, New Delhi-11 0001 Dated 31st March, 2020 To, Chairperson & CMD All Major Ports.
Sub.: Guidelines to Major Ports on
(i) Exemptions/Remission on penalties etc. and
(ii) Issues relating to Force Majeure W.A.Nos.870&885/2020 37 Part A- Exemptions/Remission of Penalties etc. Ministry of Home Affairs, Government of India had issued order No.40-3/2020-DM-1 (A) dated 24.03.2020 to impose lockdown for a period of 21 days to contain COVID- 19 pandemic in the country.
2. Further, Ministry of Home Affairs. Government of India had vide its order No.40-3/2020-DM-I (A) dated 25.03.2020 issued an addendum specifically giving exceptions to the operations of seaports for cargo movement and inter-state movement of goods/cargo for inland and exports to ensure regular supply of goods in the country. Through the above, the Central Government has made it clear that the smooth functioning of the Ports remain vital for the country as Ports are the main source for import and exports of goods.
3. However, given the nation-wide lockdown, there is an inevitable impact in the form of delays in evacuation of cargo and inability to fulfil obligations by various parties /stakeholders due to the affect on the downstream services.
4. In view of the situation arising because of the lockdown and after considering the representations received from various stakeholders, Major Ports are directed that -
(i) In the light of the MHA order No. 40-3/2020-DM-1 (A) dated 25.03.2020 and by invoking power under Section 53 of Major Port Trust Act 1963; each Major Port shall ensure that no penalties, demurrage, charges, fee, rentals are levied by the Major ports on any port user (traders. Shipping lines, concessionaires, licensees etc.) for any delay in berthing, loading/unloading operations or evacuation/ arrival of cargo caused by the reasons attributable to lockdown measures from 22nd March to 14th April, 2020.
(ii) Therefore, each Major Port shall exempt or remit demurrage, ground rent over and above the 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.
W.A.Nos.870&885/2020 38Part B- Issues relating to Force Majeure
5. The Ministry of Finance vide OM No.l8/4/2020-PPD dated 19th March, 2020 inter alia citing ''A Force majeure (FM) means extraordinary events or circumstances beyond human control such as an event described as an Act of God (like natural calamity)" has clarified that spread of corona virus should be considered as a case of natural calamity and Force Majeure may be invoked.
6. The Ministry of Shipping, Government of India through Order No PD-13/33/2020-PPP/c-339106 dated 20.03.2020 and letter dated 24th March, 2020 has already intimated the Major Ports that the COVID-19 pandemic can be considered as a 'natural calamity' that would entitle invocation of' force majeure' provisions inasmuch as obligations under various contracts (involving the Major Ports) are concerned.
7. The aforesaid orders do not impact or dilute the fact that each Major Port needs to remain operational during the COVlD-19 pandemic and continue cargo operations in all respects.
8. In view of the situation arising because of the COVID-19 pandemic and after considering the representations received from various stakeholders, Major Ports are directed that -
(i) The period for completion of any Project under implementation in PPP mode or otherwise, can be extended by the Ports.
(ii) For existing and operational PPP projects, the Major Ports can permit waiver of all penal consequences on a case-to- case basis along with deferment of performance obligations as per relevant provisions of Concession Agreement.
(iii) The period of Force Majeure starts from the date of order of Ministry or Finance referred above and will end when the competent authority so orders.
9. The above order issues under Section 111 of Major Port Trusts Act, 1963 with the approval of Hon'ble Minister of State for Shipping (IC) and to be implemented with immediate effect.
Sd/-
(Arvind Chaudhary) Director."
W.A.Nos.870&885/2020 39Ext.P5 "No. PD-14033/4/2020-PD VII Government of India Ministry of Shipping Transport Bhawan, 1, Parliament Street, New Delhi-11 0001 Dated 21st April, 2020 To Chairperson & CMD All Major Ports Sub: Issues at Major Ports relating to;
1) Exemptions/Remission of charges
2) Force Majeure Due to COVID 19 pandemic and lockdown measures in several countries, the logistic chain has been severely disrupted and associated production & consumption centres have been affected. The logistic chains are going through an unusual and massive shock from the disruptions on supply side as well as the demand side. The logistic chain related businesses including traders, importers, exporters, port operators, shipping lines, transporters are facing huge challenge in maintaining their businesses due to lower trade volume as well as cash flow issues. Therefore, it is required that some relief measures are taken to support and rebuild the logistic chain.
2. Ministry of Home Affairs, Government of India had issued order No 40- 3/2020- DM-1 (A) dated 24.03.2020 and subsequent order dated 15/4/2020 along with its amendments to impose lockdown from 22 nd March to 3rd May, 2020 (hereafter "Lockdown Period") to contain COVID- 19 pandemic in the country. The lock-down measures and associated disruptions in logistic chains have impacted the Indian ports and port users. There is an impact in the form of drop in imports & exports volumes, delays in evacuation of cargo, cash flow issues etc. resulting in inability of port users, concessionaires and other stakeholders to fulfil their obligations to port authorities and banks/lenders. In view of this W.A.Nos.870&885/2020 40 extraordinary situation and after considering the representations received from various stakeholders, all Major Ports are directed that:-
3. Remission of charges to Port Users
(i) Storage Charges: Ports shall allow free storage time to all port users for the Lock- down Period.
(ii) Lease rentals, licence fees related charges: Ports shall allow deferment of April, May and June months, annual lease rentals/licence fees on pro-rata basis, without any interest, if requested by lessee/licensee. This shall be applicable only for the annual lease rentals/licence fee to be received by port for year 2020.
(iii) Other Charges, penalties etc.: Ports shall ensure that no penal charges, demurrages, detention charges, dwell time charges, anchorage charges, penal berth hire charges, performance related penalties etc. are levied on any port user (traders, importer, exporters, shipping lines, concessionaires, licensees, 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 30 th June 2020 on 'as is where is' basis.
4. Remission of charges to PPP concessionaire Due to the impact of COVID and lockdown measures, there is drop in cargo volume at several Public Private Partnership (PPP) berths/terminals in Major-Ports. Therefore, ports shall extend the following to such PPP concessionaires;
W.A.Nos.870&885/2020 41(i) Revenue share, royalty and equipment hire related charges:
Ports shall allow deferment of April, May and June months' revenue, royalty and equipment hire charges without any interest, if requested by concessionaire. The said deferred amount shall be paid by concessionaire after interest free period of three months (reckoned month to month i.e. the charges due in April 2020 shall be paid in month of August 2020) or alternatively, through six monthly equated installments at interest rate equal to RBI's 91-days Treasury Bill (Primary) yield rate (as on the due date of initially deferred amount) after expiry of interest free period.
(ii) Lease rentals, licence fees rela1ed charges: Ports shall allow waiver of lease rentals, licence fees and similar charges for three months (April, May and June '2020) to the extent the volume of cargo dropped compared to monthly average cargo volume of last calendar year i.e. 1 st Jan 2019 to 31st Dec 2019.
For example, the 'average monthly volume' is I0,000 TEUs based on the cargo handled by concessionaire from 1 st Jan 2019 to 31st Dec 2019. If the cargo volume for the month of April'20 is 6000 TEUs (i.e. drop of 40% by volume compared to last year's average monthly volume), the ports shall waive off 40% of lease rentals, licence fees and similar charges for the month of April 2020. If such waived amount has already been received by port, adjustment of the same shall be provided in the forthcoming from concessionaire.
(iii) Minimum Guaranteed Throughput (MGT) obligations: The MGT obligations (wherever existent in concessionaire agreements) shall be computed, for the respective year, without considering the Lockdown Period and cargo volume handled during said period.
(iv) Performance standard related obligations: Ports shall not levy any penalty or charges for any shortfall in any performance W.A.Nos.870&885/2020 42 standards such as gross berth output, transit storage dwell time, turnaround time for delivery store receipt operations, non- transhipment requirements 'etc. for the Lockdown Period plus 30 days recovery period.
(v) Additional Land for storage: If requisite additional area is available within port, the port shall provide additional storage area to PPP concessionaires, on temporary basis, without any charges, rentals, fee etc. for upto 30 th June 2020 on 'as is where is' basis.
5. Vessel related charges from Shipping Lines:
Marine Due/Vessel related charges: Ports shall allow interest free 60 days deferment of marine dues/ vessel related charges to Indian coastal vessels, if requested by vessel operators. Ports shall obtain requisite Bank Guarantee, as security, from coastal vessel operators for the same. Only deferment requests received by 30 th May 2020 shall be considered.
6. Force Majeure:
The Ministry of Finance vide OM No.18/4/2020-PPD dated 19 th February, 2020 inter alia citing "A Force majeure (FM) means extraordinary events or circumstances beyond human control such as an event described as an Act of God (like natural caiamity)" has clarified that spread of corona virus should be considered as a case of natural calamity and Force Majeure may be invoked.
The Ministry of Shipping, Government of India through Order No.PD- 13/33/2020-PPP/e-339106 dated 20.03.2020 and letter dated 24 th March, 2020 has already intimated the Major Ports that the COVID- 19 pandemic shall be considered as a 'natural calamity' that would entitle invocation of' force majeure' provisions inasmuch as obligations under various contracts (involving the Major Ports) are concerned.W.A.Nos.870&885/2020 43
The aforesaid orders do not impact or dilute the fact that each Major Port needs to remain operational during the COV1D-l9 pandemic and continue cargo operations in all respects.
In view of the situation arising because of the COVID-19 pandemic and after considering the representations received from various stakeholders, Major Ports are directed that -
(i) The period for completion of any Project under implementation in PPP mode or otherwise, shall be extended by the Ports.
(ii) For PPP projects under implementation, the Major Ports can permit waiver of all penal consequences on a case-to-case basis along with deferment of performance obligations as per relevant provisions of Concession Agreement.
(iii) The period of Force Majeure starts from the date of order of Ministry of Finance referred above and will end when the competent authority so orders.
7. The aforementioned point 3(i) and (ii) shall not be applicable to Mumbai Port Trust and Mormugao Port Trust.
8. All Major Port Trusts shall issue relevant applicable orders for both remission and Force Majeure in their respective ports and forward the copy of port's order to the Ministry of Shipping within 7 working days from the date of issue of this order.
9. The remissions/waivers/deferments stipulated in this order shall be extended to only port related activities, industries and commercial establishments. This order shall not applicable on any captive user, Central or State govt. entities, local bodies, PSUs, CPSEs.
10. Port shall ensure strict implementation of this order by port users including PPP concessioners, CFS, lCD, Shipping lines etc. If required, ports shall invoke relevant provisions of agreements and take appropriate action.
W.A.Nos.870&885/2020 4411. This order supersedes the Order No. PD-14300/4/2020-PD VII dated 31st March 2020.
12. This order is issued under Section 111 of Major Port Trusts Act, 1963 with the approval of Hon'ble Minister of State for Shipping (IC) and to be implemented with immediate effect. This order shall also be followed by Kamarajar Port Limited.
Yours faithfully, Sd/-
(Arvind Chaudhary) Director"
36. DGS Order No.11 of 2020 dated 22.04.2020 (Exhibit-P6) issued by the Director General of Shipping, Mumbai is extracted hereunder:
"F. No. MTO/Review Schedule-ll (1)/2019 Dated: 22.04.2020 DGS Order No. 11 of 2020 Sub.: Extension of validity of DGS Order No. 07 of 2020 dated 29.03.2020 and modification of DGS Order No. 08 of 2020 dated 31.03.2020.
Whereas, DGS Order No.07 of 2020 dated 29.03.2020 was issued as an advisory on non-charging of container detention charges on import and export shipments, for the period 22 th March, 2020 to 14th April, 2020 (both days inclusive).
2. Whereas, DGS No. 08 of 2020 dated 31.03.2020 was issued as an advisory on non-charging of any demurrage, ground rent beyond the allowed free period, storage charges in the port, additional anchorage charges, berth hire charges or vessel demurrage or any performance related penalty on non-containerized cargo (i.e. bulk, break bulk and liquid cargo), for the period 22nd March, 2020 to 14th April, 2020 (both days inclusive).
3. Whereas, the Ministry of Home Affairs vide its Order No. 40- 3/2020-DM-I(A) dated 14th April, 2020 has ordered that the W.A.Nos.870&885/2020 45 lockdown measures put in place vide its Order dated 24.03.2020 read with its amendments, will continue to remain in force up- to 03.05.2020.
4. Whereas, the Ministry of Shipping, Govt. of India vide its letter no. PD-14033/4/2020-PD VII dated 21st April, 2020 has superseded its earlier order No. PD-14300/4/2020-PD VII dated 31st March, 2020 and now has issued comprehensive directions to the major ports to remit penal charges, demurrages, detention charges, dwell time charges, anchorage charges, penal berth hire charges, performance relate penalties, etc. levied on the port users including the shipping lines.
5. Now, therefore to maintain the continuity, the DGS Order No. 07 of 2020 dated 29.03.2020 relating to non-charging of container detention charges on import and export shipments will continue to remain in force from 22"" March, 2020 to 03"' May, 2020 (both days inclusive).
6. Further, the exemptions under DGS Order No.08 of 2020 dated 31.03.2020 were in force from 22 th March, 2020 to 14th April, 2020 (both days inclusive), over and above free time arrangements that is currently agreed and availed as part of any negotiated contractual terms.
7. It is now decided, that for the second lockdown period, the shipping companies or carriers (and their agents by whatever name called) shall not charge, levy or recover any penal charges, demurrage, ground rent, storage charges in the port, detention charges, dwell time charges, additional anchorage charges, penal berth hire charges, vessel demurrage or any performance related penalties on cargo owners/ consignees of non-containerized cargo (i.e. bulk, brake bulk & liquid cargo) whether LCL or not for the period from 15 th April, 2020 to 03rd W.A.Nos.870&885/2020 46 May, 2020 (both days inclusive), due to delay in berthing, loading/unloading operations or evacuation/arrival of cargo.
8. The above exemptions/remissions 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 or carriers (and their agents) are also advised not to impose any new or additional charge. This decision is a onetime measure to factor-in the present situation arising out of COVID-l9 pandemic.
Sd/-
(Amitabh Kumar) Director General of Shipping"
37. Letter dated 23.04.2020 (Exhibit-P7) issued by the Director General of Shipping, Mumbai, is extracted hereunder:
"F. No. 394/46/2020-Cus (AS) Government of India Ministry of Finance Department of Revenue Central Board of Indirect Taxes & Customs Anti-Smuggling Unit ******* Room No.501, 5th Floor, Hudco Vishala Building, Bhikamaji Cama Place, New Delhi-110066 Dated: 23/4/2020 To, All Principal Chief Commissioner/Chief Commissioner of Customs, All Principal Chief Commissioner/Chief Commissioner of Customs (Preventive), All Principal Chief Commissioner/Chief Commissioner of CGST & Customs.
Madam/Sir, Subject: Covid-19 Pandemic- waiver of Demurrage Charges levied by ICDs/CFSs/Port/Terminal Operators during lockdown-reg.
The Ministry of Home Affairs, Government of India had issued order No. 40-3/2020-DM-I (A) dated 24.3.2020 and W.A.Nos.870&885/2020 47 subsequent order dated 15/4/2020 along with its amendments to impose lockdown from 22nd March to 3rd May, 2020 to contain COVID - 19 pandemic in the country. On account of lockdown measures, the logistics chain of businesses have been most adversely impacted. The chain includes the activities of all stockholders (Importers, Exporters, Customs Brokers, Transporters, Labour, etc.) dealing with the clearance of cargo from Customs facilities viz. Ports, ICDs and CFSs. As a result, importers are not able to clear the import of consignments in many parts of the country for reasons that are beyond their control. In the circumstance, numerous importers and trade associations have requested for the waiver of penal charges, which are collected by the custodians on the imported goods lying at various ports, ICDs, CFSs beyond the normal free period.
2. In this context, it is seen that the Director General of Shipping, M/o Shipping vide Order No. 7/2020 dated 29.03.2020 and vide Order No. 8/2020 dated 31.03.2020 has advised the Indian seaport, carriers, shipping lines not to impose any container detention charges on import and export shipments for the lock down period on cargo owners/consignees of non-containerized cargo (i.e. both brake bulk and liquid cargo) whether LCL or not for the lock down period due to delay in evacuation of cargo caused by reasons attributed to lockdown measures. Ministry of Shipping has again in its order vide No. PD- 14033/4/2020-PD VII dated 21st April, 2020 (copy enclosed), directed inter alia that no penal charges demurrage, detention charges, dwell time charges etc. shall be levied and ports shall cause strict implementation by port users including ICDs, CFSs, Shipping Lines etc.
3. Accordingly, aforementioned orders issued by Ministry of Shipping and Director General of Shipping are brought to your attention for strict compliance by all the ICDs/CFSs of your zone.
Yours Sincerely,
Encl: As Above. Sd/-
(Sharad Srivastava)
Director (AS)"
38. At the risk of repetition, the prayers made in the writ petitions are as follows:W.A.Nos.870&885/2020 48
(i) Issue a writ of mandamus or any other appropriate writ, direction or order, commanding respondents 1 and 2 to ensure strict compliance of Order No. PD-14033/4/2020-PD-
VII dated 21.04.2020 (Ext.P5) and DGS Order No.11 of 2020 dated 22.04.2020 (Ext.P6);
(ii) Extend the validity of DGS Order No.11 of 2020 dated 22.04.2020 (Ext.P6) till 30.06.2020 or till such date that this Court deems fit and proper in the peculiar facts and circumstances of the case;
(iii) Issue a writ of mandamus or any other appropriate writ, order or direction, commanding the respondents to permit the petitioner herein to clear the imports covered by Exhibit- P1 series Bills of Lading by extending the benefit of Exhibit- P6 and to reimburse any amounts already paid thereto;
39. Pending disposal of the writ petitions, interim relief sought for by the appellants are as follows:
"For the reasons stated in the memorandum of writ petitions and the affidavits filed in support thereof, it is most humbly prayed that this Court may be pleased to direct the respondents to provisionally permit the petitioners to clear the imports covered by Exhibit-P1 Bills of Lading by issuance of final delivery order by applying and extending the benefit of Exhibit-P6 order No.11 of 2020 issued by the 2 nd respondent of non-charging liner detention, demurrage and ground rent, in the interest of justice."
40. First of all, if interim reliefs, as sought for by the appellants have to be granted, then in our considered view, the same would be W.A.Nos.870&885/2020 49 amounting to granting the main relief itself. Then, nothing survives in the writ petitions for adjudication of the contentions raised. At this juncture, we deem it fit to consider a few decisions.
(i) In The State of Orissa v. Madan Gopal Rungta reported in AIR 1952 SC 12, a Constitution Bench of the Hon'ble Apex Court clearly spelt out the contours within which, interim relief can be granted. The Court said that,-
"An interim relief can be granted only in aid of and as ancillary to the main relief which may be available to the party on final determination of his rights in a suit or proceeding. If the Court was of opinion that there was no other convenient or adequate remedy open to the petitioners, it might have proceeded to investigate the case on its merits and come to a decision as to whether the petitioners succeeded in establishing that there was an infringement of any of their legal rights which entitled them to a writ of mandamus or any other directions of a like nature; and pending such determination it might have made a suitable interim order for maintaining the status quo ante. But when the Court declined to decide on the rights of the parties and expressly held that they should be investigated more properly in a civil suit, it could not, for the purpose of facilitating the institution such suit, issue directions in the nature of temporary injunctions, under Art.226 of the Constitution. In our opinion, the language of Art.226 does not permit such an action. On that short ground, that judgement of the Orissa High Court under appeal cannot be upheld."
(ii) In Dorab Cawasji Warden v. Coomi Sorab Warden & Ors (1990 AIR SC 867), the Hon'ble Supreme Court held as follows:
W.A.Nos.870&885/2020 50"The appellant before the Hon'ble Supreme Court was original plaintiff seeking interlocutory mandatory injunction to direct the respondent No. 4 (i.e. subsequent purchaser) to vacate the suit property of which the plaintiff was owner of an undivided half share. The plaintiff had filed the suit on the ground that the suit property is a dwelling house belonging to an undivided family and there had not been any division of the said property at any point of time. Taking an objection of Section 44 of the Transfer of Property Act, 1882, the plaintiff filed the suit for a decree of permanent injunction against the defendants. Granting the relief of interlocutory mandatory injunction thereby directing respondent No. 4 (who had purchased the undivided share of other respondents in suit property and had also shifted to the premises) to vacate the suit property, the Hon'ble Supreme Court observed that there is strong possibility of plaintiff getting relief prayed for by him in the suit. The Hon'ble Court further held that the comparative mischief or inconvenience which is likely to issue from withholding the injunction will be greater than that which is likely to arise from granting it and hence the balance of convenience is in favour of the Plaintiff."
(iii) In Deoraj v. State of Maharashtra reported in AIR 2004 SC 1975, the Hon'ble Supreme Court, at para 12, held as follows:
"Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of main petition itself; for, by the time the main matter comes up W.A.Nos.870&885/2020 51 for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case - of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of case totally in favour of the applicant may persuade the Court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The Court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the Court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the Court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the Court may put the parties on such terms as may be prudent."
(iv) In State of U.P v. Ram Sukhi Devi reported in (2005) 9 SCC 733, the Hon'ble Supreme Court held that final relief cannot be granted by way of interim relief. Paragraph 8 of the aforesaid decision is extracted hereunder:-
"To say the least, approach of the learned Single Judge and the Division Bench is judicially unsustainable and indefensible. The final relief sought for in the writ petition has been granted as an interim measure. There was no W.A.Nos.870&885/2020 52 reason indicated by learned Single Judge as to why the Government Order dated 26.10.1998 was to be ignored. Whether the writ petitioner was entitled to any relief in the writ petition has to be adjudicated at the time of final disposal of the writ petition. This Court has on numerous occasions observed that the final relief sought for should not be granted at an interim stage. The position is worsened if the interim direction has been passed with stipulation that the applicable Government Order has to be ignored. Time and again this Court has deprecated the practice of granting interim orders which practically give the principal relief sought in the petition for no better reason than that of a prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a host of other considerations. [See Assistant Collector of Central Excise, West Bengal v. Dunlop India Ltd. [1985 (1) SCC 260 at p. 265], State of Rajasthan v. M/s Swaika Properties (1985 (3) SCC 217 at p.224), State of U.P. and Ors. v. Visheshwar [1995 Supp (3) SCC 590], Bharatbhushan Sonaji Kshirsagar (Dr.) v. Abdul Khalik Mohd. Musa and Ors. [1995 Supp (2) SCC 593], Shiv Shankar and Ors. v. Board of Directors, U.P.S.R.T.C. and Anr. (1995 Supp (2) SCC 726) and Commissioner/Secretary to Govt. Health and Medical Education Department Civil Sectt., Jammu v. Dr. Ashok Kumar Kohli (1995 Supp (4) SCC
214).] No basis has been indicated as to why learned Single Judge thought the course as directed was necessary to be adopted. Even it was not indicated that a prima facie case was made out though as noted above that itself is not W.A.Nos.870&885/2020 53 sufficient. We, therefore, set aside the order passed by learned Single Judge as affirmed by the Division Bench without expressing any opinion on the merits of the case we have interfered primarily on the ground that the final relief has been granted at an interim stage without justifiable reasons. Since the controversy lies within a very narrow compass, we request the High Court to dispose of the matter as early as practicable preferably within six months from the date of receipt of this judgment."
41. The appellants have referred to force majeure clause, advisories and orders, issued in the matter of deferment of detention and demurrage and other charges by respondent No.3, and contended that the order of the Hon'ble High Court of Delhi in M/s. Polytech Trade Foundation v. Union of India and Ors. [WP(C) No.3029/2020] dated 22.05.2020 cannot be taken as a precedent. At this juncture, we deem it fit to consider what the Hon'ble Delhi High Court has observed in the said order. After considering similar submissions, as made in this Court, at paragraphs (49) to (51), the Delhi High Court has ordered thus:
"49. Now coming to the letters issued by the concerned Ministries, the facts narrated in the earlier paras and detailed discussions clearly point out that circulars/guidelines/advisories issued by respondent no. 1 and 2 prima facie do not bind respondent no. 3 to 6 who are not availing any concession from port authorities and who have their containers located outside the Port Land.W.A.Nos.870&885/2020 54
Moreover, the letters/guidelines/advisories also cannot intervene or interfere in a private contract which respondent no. 3 to 6 have with their customers i.e. petitioner. Respondent no. 3 to 6 on their own have given considerable relaxation/waiver of ground rent and are sympathetically considering the request of cargo owners in view of the Covid-
19. On careful examination of all the facts and submissions made by the Ld. Counsels for the parties, this Court is of the opinion that petitioner has failed to make out a prima facie case for grant of injunction. As discussed earlier, the circulars/guidelines and advisories issued by respondent no.1 and 2 are not binding upon respondent no. 3 to 6. Some of the advisories only contemplate that authorities concerned should adopt sympathetic and humanitarian approach and has advised them not to charge ground rent or penal charges. In these circumstances, there is no material on record which prima facie suggests that any right of the petitioner has been violated by the respondents. This Court is further of the opinion that since respondent no.3 to 6 are not bound by various guidelines/letters/advisories issued by respondent no.1 & 2, the balance of convenience also does not lie in favour of the petitioner.
50. In the end, it may be noted that even no irreparable loss is going to be caused to the petitioner if injunction/ restrained order is not granted for the reason that if this court finally comes to a conclusion that these letters were not in the form of advisories/guidelines but were in fact binding directions, the petitioner can recover the ground rent/penal charges paid by them to respondent no.3 to 6.W.A.Nos.870&885/2020 55
51. In view of the above detailed discussions, no grounds for grant of injunction/restrain order in favour of the petitioner and against the respondents are made out at this stage. The application filed by petitioner under Section 151 CPC for injunction is, therefore, dismissed."
42. Though Mr. Aswin Gopakumar, learned counsel for the appellants, made an attempt to distinguish the interim order of the Hon'ble High Court of Delhi, stated above, we are not inclined to accept the same for the reason that what is observed by the Hon'ble Delhi High Court is that demand for detention and demurrage charges, is contractual between the appellants and the service providers. At this juncture, while considering the interim reliefs sought for, it cannot be said that the writ court has committed any gross error in considering the interim order of the Hon'ble High Court of Delhi and declining the interim reliefs sought for by the appellants.
43. True, at the time of considering the interim relief, the Court is bound to consider whether, (1) there is prima facie case, (2) balance of convenience, and (3) likelihood of irreparable hardship. Writ court though not specifically adverted to the above, reading of the impugned order reflects the same. On the aspect of violation of Article 14 of the Constitution of India, that the earlier interim order in W.P.(C) No.10177/2020 dated 25.05.2020 has not been followed, it could be W.A.Nos.870&885/2020 56 deduced that the earlier order has been passed at the stage of admission of that writ petition, but subsequently, writ court has taken note of the interim order passed by the Hon'ble High Court of Delhi.
Going through the pleadings, submissions of the contesting parties, the order, which was taken note of by the learned single Judge in the impugned order, and the decisions on interim relief vis-a-vis main relief considered by us, we are of the considered view that there is no error in the interim order dated 30.06.2020, warranting interference in the instant appeals. Consequently, the writ appeals are dismissed. No costs.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY JUDGE Krj //TRUE COPY// P.A. TO CJ