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Maharashtra Heavy Vehicle and Interstate Container Operators Association, John Oswald Cordiera, Sunshine Paptech Pvt. Ltd. Versus Union of India,

Withdrawal of Tender Notice - selection of transporter for providing transport solution for various identified routes for DPD, ISO freight containers from the four terminals of JNPT - interpretation of tender conditions - Held that: - The position of law with regard to the tender, contract and/or such policy decision has been settled through various judgments, specifically when it comes to taking administrative and/or executive decision to bring in and/or make policy - the Court needs to conside .....

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es therefore, required to be implemented in line by JNPT and the Customs and the related stakeholders, including the Petitioners/ importers/transporters. The DPD model is stated to be simple and less time consuming. - The duration of agreement is three years with a provision to extend the arrangement for a period of two years at negotiable rate, terms and conditions on mutual consent. Section 1 provides for the notice inviting tender, followed by instructions to bidders, the evaluation of bi .....

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takeholders related to the transport solution. The Committee shall ensure the overall quality of service of the transport solution. - Policy decision by any mechanism­ - Held that: - The concept of “policy decision” may include Executive instructions/instructions also. The effect and use of it only enlightend its utility and usefulness. Any challenge to policy decision, without factual document/material is premature. Any policy decision cannot be challenged on presumption and assumption. The .....

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cy decision. - It is clear therefore, considering the preamble and object of policy decision, taken at higher level, in furtherance of the DPD model to promote the government of India's “Make in India”, and “Ease of Doing Business” initiatives. The Respondents' decision to rerationalise and streamline the implementation of the DPD model at its port is well within the scheme. The DPD model is introduced to bring in a change in the existing clearance framework to meet contemporary needs. The t .....

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ng of such implementation at the instance of the Petitioners, therefore, is not in the interest of people at large - The impugned tender, therefore, is not arbitrary unreasonable and cannot be stated to be without any application of mind. All the clauses are required to be read and so also all the connected schemes. - Power to change or modify the policy decision in the public interest­ - Held that: - the terms and conditions of the tender and its object and purpose, is in the interest of ge .....

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fore, required to be implemented and extended to all the concerned. Unless the decision is concrete and make compulsory, it will be difficult to implement and as it is nothing but extension of DPD policy and supported by the customs and all the concerned departments, it will not be entail the desire result, to achieve the aims and objects of the scheme/policy decision. Its implementation by all, is a must. - Petition dismissed - decided against petitioner. - WRIT PETITION (LODGING) NO. 1192 .....

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No.2 in both the Petitions. JUDGMENT (PER ANOOP V. MOHTA, J.):­ In view of the urgency so expressed, rule made returnable forthwith. Heard finally by consent. 2 The common issues are involved, so also the prayers and the Respondents, therefore, this Judgment. 3 Petitioner No.1 in WPL No. 1192 of 2017, is an Association of more than 450 transporters as members handling 76% of the Import­Export to and from the Jawaharlal Nehru Port Trust (for short, JNPT ) Port. 4 On 23 March 2017, Bid/Te .....

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verted only to the selected five transporters. On 1 September 2008, the Chief Commissioners of Customs, Nhava­Sheva issued a facility Notice No. 63 of 2008 ( FN 63/2008 ) as per which DPD facility was introduced for the first time as a facility to accredited importers, i.e. the importers who fulfilled certain criteria as per the aforesaid facility notice, as per which on payment of duty, containers were allowed to be removed directly from the port itself without any examination as required u .....

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were ignored or redressed with fake assurances. 5 During November 2016 to February 2017, the Commissioner of Customs, Nhava Seva issued various public notices, PN 161/16 and PN 180/16 as per which total of 778 importers were identified who can avail DPD facility by relaxing the eligibility requirements specified in FN 63/2008. Again on 12 April 2017, Petitioner No.1 issued letter to Respondent­JNPT and tried to explain the plight of the transporters and devastating effect if such tender is .....

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ot withdraw the tender notice. Hence the present Petition. 6 In so far as WPL No. 1626 of 2017 is concerned, the Petitioner is a Private Limited Company engaged in the business of manufacturing Kraft papers and other allied products through the process of recycling imported waste papers. The Petitioner has been regularly importing 150­200 containers of waste paper per month at NhavaSeva port for captive consumption in its plant for manufacturing paper and other allied products as the timely .....

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of introduction of DPD a.k.a. DPD facility, the Import General Manifest also indicates where a container is meant for DPD. An Import Advance List ( IAL ) is filed by the shipping line with the terminal prior the berthing of the vessel. The importers who fulfilled certain criterion on the basis on their tract record and reputation, with minimum compliance under the Customs Act, as part of the Risk Management System ( RMS ) and on the basis of self­assessment were allowed to take their goods .....

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he more congested. Hence this Petition. 7 Both the Petitioners have challenged tender/notice of JNPT, Traffic Department dated 23 March 2017, for selection of transporter for providing transport solution for various identified routes for DPD, ISO freight containers from the four terminals of JNPT . By amendments have challenged the policy decision. 8 In WPL No. 1192 of 2017, Contesting Respondent No.2­JNPT has filed affidavit­in­reply dated 3 June 2017. The Petitioners filed their af .....

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on:­ 9 The law with regard to the contract/tender is quite settled. The learned counsel appearing for the respective parties have read and referred various Judgments of the Supreme Court and the High Courts. Those are:­ for the Petitioners' side:­ a) Tata Cellular Vs. Union of India (1994) 6 SCC 651; b) State of Bihar & Ors. Vs. Project Uchcha Vidya, Sikshak Sangh & Ors. (2006) 2 SCC 545; c) Association of International Schools & Principals Foundation & Anr. Vs. S .....

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. 2419; i) JSW Infrastructure Limited & Anr. Vs. Kakinada Seaports Limited & Ors. (2017) 4 SCC 170 j) Reliance Telecom Limited & Anr. Vs. Union of India & Anr. (2017) 4 SCC 269 k) Montecarlo Limited Vs. National Thermal Power Corporation Limited (2016) 15 SCC 272 l) Afcons Infrastructure Limited Vs. Nagpur Metro Rail Corporation Limited & Anr. (2016) 16 SCC 818 m) SKL Company Vs. Chief Commercial Officer, Southern Railways & Ors.(2015) 16 SCC 509; 10 The Apex Court in M/s .....

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cannot be denied so far as exercise of contractual powers of Government bodies are concerned, but it is intended to prevent arbitrariness or favouritism and it is exercised in the larger public interest or if it is brought to the notice of the court that in the matter of award of a contract power has been exercised for any collateral purpose. 11 The Supreme Court, while dealing with the requirement of the State to take any new policy decision and/or in related administrative action, has recorded .....

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r constitutional limits or statutory power. The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or is violative of the fundamental rights of the citizens or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does not appear to be agreeable to the Court it cannot interfere. 6. The correctness of the reasons which prompted the Government in d .....

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have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the Government the Court cannot interfere even if a second view is possible from that of the Government. 8. The Court should constantly remind itself of what the Supreme Court of the United States said in Metropolis Theatre Company v. City of Chicago (L. Ed. p. 734). "The problems of Government are prac .....

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position of law, held that­ "96. ….............. Thus, Article 14 in its ambit and sweep involves two facets, viz., it permits reasonable classification which is founded on intelligible differential must have a rational relation to the objects sought to be achieved. Further, it does not allow any kind of arbitrariness and ensures fairness and equality of treatment. It is the fonjuris of our Constitution, the fountainhead of justice. Differential treatment does not per se amount t .....

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ecision to bring in and/or make policy. In JSW Infrastructure Limited & Anr. (supra), the Apex Court held that­ 9. We may also add that the law is well settled that superior courts while exercising their power of judicial review must act with restraint while dealing with contractual matters. A Three Judge Bench of this Court in Tata Cellular vs. Union of India held that (i) there should be judicial restraint in review of administrative action; (ii) the court should not act like court of .....

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tender conditions, if are against the provisions of law, arbitrary, discriminatory, illegal and affects the fundamental rights of the Petitioners, covering Articles 14, 19(1)(g) of the Constitution of India, an appropriate writ or directions may be issued by the Court, but not otherwise. Basic provisions­ 15 The following Sections of the Major Port Trusts Act, 1963 (for short, the MPT Act ), are referred and read­ Section 2. Definitions.­ (f) "dock" includes all basins, lo .....

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ct applies within such limits as may, from time to time, be defined by the Central Government for the purposes of this Act by notification in the Official Gazette, and, until a notification is so issued, within such limits as may have been defined by the Central Government under the provisions of the Indian Ports Act; (r) "port approaches", in relation to a port, means those parts of the navigable rivers and channels leading to the port, in which the Indian Ports Act is in force; (t) & .....

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belonging to or in the possession of the Board; (b) receiving, removing, shifting, transporting, storing or delivering goods brought within the Board's premises; [(3A) Without prejudice to the provisions of subsection (3), a Board may, with the previous approval of the Central Government, enter into any agreement or other arrangement (whether by way of partnership, joint venture or in any other manner) with, any body corporate or any other person to perform any of the services and functions .....

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d customs station; (23) "import", with its grammatical variations and cognate expressions, means bringing into India from a place outside India; (26) "importer", in relation to any goods at any time between their importation and the time when they are cleared for home consumption, includes [any owner, beneficial owner] or any person holding himself out to be the importer; (37)"shipping bill" means a shipping bill referred to in section 50; Section 141. Conveyances a .....

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] 17 The parties have read and referred the conditions of tender/notice in question and so the policy decisions based upon the tender conditions/public tender, have been announced. Scheme and object of the tender:­ 18 The object and purpose of inviting tender in the selection of transporter and providing solution for DPD ISO freight containers from four terminals of JNPT is reflected in the preamble to the tender. Preamble to the Tender Jawaharlal Nehru Port Trust (JNPT) Navi Mumbai is one o .....

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ks equivalent to the number of DPD clients in order to continue on the best­pick mode. This is not possible due to the high number of DPD clients and limitation of the yard area, equipment and manpower capacity. To find out a suitable solution to this, the transportation system at various PSUs was studies, however, there was no similar example for arriving at a transportation solution. The international ports were studied, however, it was found that the similar system cannot be implemented a .....

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requirement­ 1) The number of stacks has to be minimum and 2) It should be designed on the best­pick model keeping the number of shifting to the minimum. The detailed background and the transportation solution is explained further in this section. 19 This was after various studies and information collected by Port of Customs, Ministry of Shipping and with intent to identify measures to reduce the transaction cost and time, and the reasons so reflected and keeping in line Ease of Doing B .....

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rs. The DPD model is stated to be simple and less time consuming. The following advantages are not in dispute. Prompt and timely delivery leading to reduction in in inventory costs, saving in transportation costs, saving in Handling and storage charges at warehouse, saving in Container detention charges payable to Shipping Lines, delivery of DPD container at Port Terminals 24x7 basis, reduction in dwell time for containerized cargo. In view of the above advantages, DPD is expected to be the game .....

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Ports Association and private terminal operators will be very limited in creating the platform and the business model has to be run by trade/private sector. 22 The Transportation Solution, which is important facet of the DPD model is also elaborated in clause (g). This includes the formation of Grievance Redressal Committee. Clause (g) of the Transportation Solution reads thus­ i. Import containers shall be cleared within 48 hours from the port and will be delivered directly at the factory/p .....

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v. The importers with DPD facility will be informed about the transporters selected through the bidding process and their rates and the importers shall need to enter into commercial arrangement with the transporter. vi. Importer will need to clear the documentation of the container immediately and ensure that the selected transporter clears the cargo from the port within a total time of 48 hours, failing which the container cargo will be transferred to the designated CFS. In such cases, the impo .....

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ected transporters for taking the DPD import delivery. The importers shall enter into commercial arrangement with the selected transporters and shall share the necessary documentation with the transporter based on which the terminal operators will give delivery to the transporter. x. the arrangement with the transporter shall be governed by the terms and conditions of this tender. JNPT shall issues Letter of Award to the Successful Bidder for each route and the Successful Bidder shall have the e .....

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od of two years at negotiable rate, terms and conditions on mutual consent. Section 1 provides for the notice inviting tender, followed by instructions to bidders, the evaluation of bids, scope and volume of work. The requirement of minimum truck trailers is in clause (b) from 1.4.2. The provision is made about the operational contract for truck trailors. The volume of work and special terms and conditions of contract have been elaborated in clause (5) and (6). The High level committee is provid .....

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rs in order to ensure reduction of Dwell Time under the DPD arrangement. By submitting the Bid, the Bidders agree that the commercial arrangement between the Importers and transporters will be separate and at any point of time, JNPT shall not entertain any claim of the Contractor/Importer. Also, any dispute between the importers and the contractors shall need to settle between themselves and JNPT shall not be a party to the dispute. JNPT/Grievance Redressal Committee shall only address the issue .....

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ting to the tender is subject to the jurisdiction of Court at Mumbai only. 25 The Petitioners have crystallized the concept of DPD and CFS and requirement of 48 hours evacuation on the arrival of the goods. Those are as under:­ CFS MODEL:­ The CFS, which is nothing but an extension of the port, was introduced in the year 1989 by the Customs Department to help clear the congestion of the ports in India. In this model, imported goods are immediately shifted after the arrival from the port .....

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examination and de­stuffing operation to the CFS. Accordingly, over the years, 34 CFS have been established in the Respondent No. 2 port by the substantial investment of more than ₹ 1000 crore. At present, this CFS is employing, directly and indirectly, around 3000 workers. DPD MODEL: Direct Port Delivery is a policy introduced by the Customs as per which the importers who fulfills certain criterion becomes eligible to directly take the delivery of the goods without any physical exami .....

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owed to take their goods directly to their factory premises from the port terminal without it being diverted to CFS. It was further notified that if the goods under the DPD policy are not evacuated within 48 hours then it would be directly diverted to Speedy CFS from where the importers can get their goods released. It may be noted that under the said notification, approximately 50 importers were identified as the DPD eligible importers. However, from November 2016 to February 2016, Commissioner .....

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Notice No. 161/2016 dated 28 November 2016, was subject matter of All Cargo Logistics & Ors. (Supra) [Writ Petition No.3310 of 2017], whereby, it is recorded as under:­ 16. On 1st September, 2008, respondent No. 3 issued Facility Notice No. 63 of 2008. That notice, inter alia, provided for DPD facility (i.e. for importers to take delivery directly from the port terminal) to ACP importers (as per Public Notice No. 64 of 2005) and to 100% Export Oriented Units (EOUs) for FCL containers cov .....

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ility. 20. The petitioners state that on account of Public Notice No. 161 of 2016, there has been a rise in the volume of DPD container traffic. As a result of this, the business of CFSs, including the petitioners, was significantly impacted since a significant number of containers, which would otherwise hitherto have passed through CFSs such as the petitioners, would no longer come to the petitioners on account of being earmarked as DPD i.e. delivery at the port itself. It is significant to not .....

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e provisions have to be made for each matter covered by sub­section (2) of section 141. Section 141(2) itself enables the Commissioner to exercise control. The provisions of the Customs Act, 1962 have to be enforced so as to carry out its object and purpose and the goods in the customs area are subject to the control of officers of Customs. They can, with the aid of these regulations and framed by the Board, control the receipt, storage, delivery, despatch or otherwise handling of the import .....

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notices is implicit and inherent in the exercise of the enabling power of ensuring proper handling of the goods in the customs area and the larger power of control vesting in the officers of the Customs. 61. ….............. Article 19(1)(g) of the Constitution of India protects certain rights and particularly to practice any profession or to carry on any occupation, trade or business. However, clause (6) of Article 19 enables placing of reasonable restrictions on this freedom. This claus .....

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cannot be, therefore, struck down as violative of the mandate of Article 19(1)(g) of the Constitution of India. A business loss to a particular person or diminution in profits cannot be, therefore, the ground on which any action, which is in public interest, can be interfered with. Therefore, at the instance of the petitioners, the present public notices cannot be quashed and set aside. 67. In the first notice of 2017 (Public Notice No. 8 of 2017 dated 16th January, 2017), the office of the Com .....

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ution to logistic arrangements. It was discussed that the JNPT is already preparing a logistic solution in the form of engaging 5­7 major transporters, who will provide transport services to DPD clients in efficient manner and evacuation of containers from terminal will take place on best pick up basis. This will facilitate further rationalisation of shifting charges being charged by terminal operators. The DPD clients can avail the aforesaid logistic solution. Then, various suggestions on t .....

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e mandate of Articles 14 and 19(1)(g) of the Constitution of India are not violated. The Petitioners' frontal points:­ 27 Insofar as Writ Petition (L) No. 1192 of 2017­ i) The tender is ex facie illegal and without any jurisdiction. ii) The tender interferes with the fundamental rights of the Petitioner to carry on its trade under Article 19(1)(g) of the Constitution of India. iii) The impugned tender is sought to create monopoly in the hands of few big transporters who will be selec .....

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at the tender clauses itself are not consistent with each other which shows the whimsical approach of Respondent No.2 in issuing the tender. vi) The tender has been issued in excess of the mischief sought to be prevented or object sought to be achieved. vii) There is no urgency which is shown by Respondent No.2 in the issuance of such tender and that the said tender is of an excessive nature as it goes beyond the requirement of the interest of general public. Insofar as Writ Petition (L) No. 162 .....

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echanism­ 28 The concept of policy decision may include Executive instructions/instructions also. The effect and use of it only enlightend its utility and usefulness. Any challenge to policy decision, without factual document/material is premature. Any policy decision cannot be challenged on presumption and assumption. The policy decision can be changed and modified, subject to its practice, utility and its use. It is ultimately the State/expert's/ executive decision, keeping in mind the .....

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f containers from the port, and thereby, direct delivery to be given to accredited importers identified by the customs authorities within 48 hours of their landing. The DPD model, insures speedy removal of the containers from the port, by reducing the dwell time of containers and therefore, the cost. A cabinet approval on 16 November 2016, at the meeting of the Secretary, Ministry of Shipping that JNPT would identify the transporters for the routes for the DPD clients and issue tender for these .....

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tention; (ii) Advantages of the DPD Model and the benefits it has in reducing the delivery time and costs, which in turn, will also decongest the port; (iii) The successful implementation of the DPD Facility and the efficient handling at the port is based on transport solution, for which purpose, JNPT, Customs, Indian Ports Association and DG Shipping together with the private terminal operators have taken the initiative to work out a transportation solution for DPD; (iv) The transportation solu .....

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vered and removed in the sequence in which the same are stacked, without shifting them for the purposes of giving delivery of a specific container to the transporter. It has therefore, been decided, based on the data received by Respondent No. 2 from the Customs Authorities to identify five routes. This would enable the stacking of containers to be done region­wise, thereby making stacking simpler and avoiding shifting of containers since irrespective of the order in which the containers are .....

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Consortia Joint Venture or the operational contract basis even for the period of 9 months.. The manner of evaluation of bids is provided. The High Level Committee is constituted to select more than one tenderer for any of the routes. The scope of tender is defined as it covers only the DPD Containers. The other requirement like Reefer Containers, Flattrack Bed, Open Top, Tank Containers, are not the requirements. 33 It is stated that, the tender covers only 28% of the total import cargo handled .....

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ers within 48 hours and thereby, reduce the dwell time and the costs, Respondent No. 2 needs to rearrange and/or change the manner of stacking of containers on the basis of predetermined routes. This would eliminate shifting of containers from one place to another while giving delivery to the selected transporter. Respondent No. 2 is the Major Port within the meaning of the MPT Act, read with Indian Ports Trust Act, 1908. The port is a restricted area and Respondent No. 2 is empowered to control .....

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ected transporters. Respondent No. 2 has therefore, issued the tender with a view to reduce dwell time and costs, and to ensure smooth and orderly dispatch of the container without causing congestion in and around the port. As such, the tender is based on the larger policy of the Government of India and has accordingly been designed in public interest with the above objectives. 34 It is clear therefore, considering the preamble and object of policy decision, taken at higher level, in furtherance .....

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of goods. 35 The process relating to transport of containers is further clarified as under­ (i) JNPT is one of the twelve major Ports in India and the biggest container port in the country. (ii) The dispatch logistics of transport of imported cargo from ports conventionally works in two ways -CFS Model and DPD Model. The DPD Model was introduced in the Port in 2008 to streamline the dispatch of imported cargo that lands at the port. The two models are briefly described below. (iii) In the C .....

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cular CFS are required to be collected on a first availability basis). Customs clearance happens at the CFS. Thus the cargo is first released for transport trucks to transfer the containers from the Port s container yard to the CFS, and thereafter, from the CFS to the importer. The entire process in the CFS Model routinely takes 8­9 days out of which 7/8 days are spent in CFS. Several issues were identified with the CFS Model, namely, additional, avoidable transportation and handling cost wh .....

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delivery of the container from the Port s container yard. Customs verification is undertaken within the terminal itself. The entire process is cut down to barely 2 days. There is significant saving in transportation costs, handling, storage costs and reduction of dwell time for containerized cargo. The importer directly benefits from this model; there is a corresponding reduction in costs, congestion and chaos that is routine in the industry and it is cheaper to conduct foreign trade for the cou .....

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val of cargo at JNPT and has been in the process of accrediting such importers. As of late 2016, more than 700 importers were recognized to avail the DPD Facility. vii) With a significant increase in the number of importers using the DPD Model, it was realized that segregating containers on to large number of heaps and in the absence of a suitable / tailored transport solution, evacuation difficulty will increase manifold. Anticipating the chaos and confusion likely to occur with the increase in .....

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logistical requirements. The selected transporters were to operate for a period of three years, extendable by two years upon mutual consent. ix) JNPT s decision to so rationalize the transportation under the DPD Model is with the wide­ranging object of streamlining the traffic movement to and from the Container yard and to ensure reliable and good quality service to the importers. Accordingly, keeping with this policy decision, the Petitioner issued notice of tender dated 23 March 2017, invi .....

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ures. It is cleared that this is to reduce the logistical coasts to support the manufacturing and other economic activities. It is the matter of record that a large number of stake­holder have been consulted. The bidders would be selected on behalf of importers, through the transparent bidding process, which would be evaluated by a high level committee comprising of the members of IPA, DG, Shipping, Customs and JN Port Terminal including two major DPD importers. The Policy is within the powe .....

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bring in new policy, keeping in mind, the purpose and object so reflected in the preamble and the other parts of the terms and conditions of the tender cannot be stated to be without jurisdiction and/or authority and/or illegal. The Petitioners have no independent and/or exclusive rights to do the business of transportation or importation in any area without the due permission, sanction and authorization from the respective authorities under the law. The privilege/license/gate passes of transpo .....

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at port/customs area. The smooth transportation of goods and/or delivery of goods from port/customs area to respective market places and/or vice­versa, required to be streamlined to avoid congestion and delay. All departments and stake­holders are required to work in coordination and in the interest of people at large for providing the goods at the destiny, at the earliest point of time. This is in the background that ultimately, the department/the officials in the port area and/or custo .....

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hey cannot have a right or insist to do their transportation through the particular transporters. The tender not restricting their right of transportation. This only intend to streamline ingress and outgress of vehicles/transportation for proper and smooth delivery of goods through the 4/5 gates route wise, area­wise. The role of transporters and importers required to be restricted near/on such gates. This, in no way, debar and/or obstruct the commercial arrangements between the importers an .....

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tender. 38 We cannot overlook that port or port area is a restricted area and of all the transporters are required to take delivery of their imports clients after due license/gate passes and permission including ingress and outgress of vehicles. Section 42(1)(b) of the MPT Act and its contents, provide the power of port to undertake various services including receiving, removing, shifting, transporting, storing, delivering the goods brought within the port premises. Merely the goods become out o .....

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the fixed route. The route­wise arrangement, cannot be stated to be contrary to any law and/or jurisdiction and/or authority. No fundamental rights are affected­ 39 The submission that the tender interfering with the fundamental rights of the Petitioners to carry on its trade under Article 19(1)(g) of the Constitution of India is unacceptable. The private selection of transporters and right to continue to do business with them by the importers association, members and/or right of transpo .....

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have been regulating the affairs of such transportation and/or delivery of goods from time to time in the port/customs area, keeping in mind the demand and supply of such goods and the requirement of importers and transporters. It is a matter of record that how the transporters/ importers and respective vehicle numbers have been changed now up to 450/750. The Respondents cannot be silent spectators and not to take any decision to bring in the mechanism, in the interest of people at large. The P .....

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nt of time and the situation. State policy cannot be regulated by the private stake­holders­ 40 There is nothing that the policy decision so initiated cannot be implemented without the Petitioners approval and/or the consent. There is ample material on record to show that before declaring the tender, the stake­holders were invited and the same was discussed. It is unacceptable that the Petitioners were not aware of such, even otherwise, the executive decision if they have taken and i .....

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scheme and/or mechanism. This is in the background that the Petitioners are not opposing the DPD policy/mechanism. The Petitioner cannot be permitted to decide the Respondents requirement to have a transport solution and the related policy, in view of the stated urgency. 41 The reliance on the Judgments, including State of Bihar & Ors. (Supra) and Association of International Schools & Principals Foundation & Anr. (Supra), are of no assistance, specifically in the facts and circumst .....

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der to implement the public notice dated 28 November 2016 issued by the Chief Commissioner of Customs, under Section 141(1) of the Customs Act, which was issued for implementation which includes the DPD policy in the JNPT. About 681 importers have been identified from DPD from the JNPT port. As noted, the Petitioners and others have already welcomed the DPD policy in JNPT. This also is to promote the Government of India's make an India and Ease of doing business initiative . 43 The Responden .....

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cannot be stated to be unjust, arbitrary and/or without any aims and objects. This assists in clearing the containers within 48 hours to avoid compulsory designated CFS. This is in All Cargo (supra) considered this facet in favour of the Respondents. Therefore, this transportation policy, if it is in integral and/or connected part of the DPD policy and once the DPD policy is recognized and accepted, even by the Petitioners, it is difficult to dissect the transportation policy of this nature, on .....

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s, based upon the route and number of trucks/transporters, in no way take away any fundamental rights. They are free to do their business, but within the framework of new policy so declared. We are inclined to observe that the challenge, at this stage, without permitting the JNPT to proceed with the scheme and mechanism which they have announced and decided to implement, is quite premature and in fact obstructing to the implementation of the new policy. Such action of the Petitioners is, therefo .....

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he business and to manage the affairs and/or regulate the port and/or its area. This is keeping in mind the various departments involved and their requirement to control and/or regulate such import and export of goods and its proper and effective timely delivery by avoiding the congestion area, any sorts of delay in actual delivery of goods, even if it is out of charge . 45 There is no force in the contention that it creates the monopoly in the hands of somebody, who will have selected region-wi .....

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cceptable. The reliance on the Mahesh Verma Vs. State of Maharashtra 2008 (4) Mh. L.J. 657 is of no assistance on the facts itself. There is a force in the contentions that the DPD containers only 28% of the import cargoes (which ratio of import and export cargo is 50:50). The transporters are free to do their remaining business of transportation, even at the JNPT port, apart from about 14% of entire transportation. There are various mechanism provided for transporters to do business jointly, in .....

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ugned tender, therefore, is not arbitrary unreasonable and cannot be stated to be without any application of mind. All the clauses are required to be read and so also all the connected schemes. Therefore, at this per­mature stage, the contention of the Petitioners and to interfere with the tender is not in the interest of all the concerned. We are not inclined to accept the case of the Petitioners that the tender is in excess and beyond the interest of general public. On the contrary, keepin .....

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that those notices dated 9 February 2017, 6 January 2017, were issued under Section 141 (2) and Section 157(2) of the Customs Act, as the authorities have power to make rule in respect of the movement of the goods in the port area and therefore, submitted that the in the present matter, the Respondents have no power and jurisdiction to issue such tender. Therefore, as contended in the present case, they have challenged the action of JNPT and not of the Chief Commissioner of Customs. The Judgmen .....

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hat the above distinct features of All Cargo (supra) as recorded above, cannot be dissected totally, as the policy decision so taken, is the integrated and connected part of JNPT regulation and so the Commissioners, customs regulations. The preamble of tender itself makes position clear that all the concerned departments are interested and involved for free and smooth transportation of the goods of the importers, through the transporters from the JNPT and/or by customs area. Power to change or m .....

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uch streamline of transportation, in no way takes away and/or infringe such manufacturers fundamental rights to do business. Tender stakes, therefore, cannot be decided at the instance of one such singular manufacturer. The right to chose the transporter, in view of above, cannot be stated to be fundamental to prevail over the power and authority of Respondents to bring in and change the business rules of transportation. There is no substance in the contention that it is an ulterior motive and/o .....

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JNPT however, by following the due procedure, inviting the transporters of particular route with particular numbers of transporters/trucks, keeping in mind the scheme and object that itself cannot be read to mean that they have interfered and or infringed the others rights. By keeping of private agreements open and applying no restrictive rules in the agreements and by providing all the various transport contracts for fixing the routes and/or particular routes, source of liberty and freedom to .....

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