TMI Blog2017 (8) TMI 580X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, 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 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 provided to select more number of tenderer in a route. The volume of each route is estimated. The Grievance Redressal Committee is provided in clause 5.8, that will address the issues of stakeholders 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 decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs/importers or few importers/transporters, cannot prevail over in the public interest so referred in the policy decision and the tender conditions - the transportation policy would be optional and not compulsory, is not acceptable. Such optional policy will create confusion, chaos and will be uncontrolled and unregulated. The policy decision and its implementation therefore, 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 OF 2017, 1626 OF 2017 - - - Dated:- 4-8-2017 - ANOOP V. MOHTA AND SMT. ANUJA PRABHUDESSAI, JJ. Mr. Sujay Kantawala a/w Ms. Shilpi Jain Mr. Ashish Mehta i/by Ashish Mehta for the Petitioner in WPL No. 1192 of 2017 and for Respondent No.3 in WPL 1626 of 2017. Mr. Rohan Rajadhyaksha a/w Mr. Pratik Jhaveri i/by Pratik J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Respondent JNPT and tried to explain the plight of the transporters and devastating effect if such tender is allowed to Respondent No.2 and requested to withdraw the tender, but that too was not responded. On 17 April 2017, Petitioner No.1 also made a representation to Respondent No.2 vide a presentation whereby certain suggestions were made for implementation of DPD Model. The Petitioners themselves formulated four stages of implementation plan taking into account all the ground level realities. Inspite of the presentation made by the Petitioners on behalf of all the members, Respondent JNPT did not 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 150 200 containers of waste paper per month at NhavaSeva port for captive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct to the tender in question till the next date of hearing. The interim order, so granted, has been in force till this date. Judicial Review in New Policy decision: 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. State of Maharashtra Anr. 2010(6) Mh.L.J. 816; d) Aurangabad Electrical Contractors Association, Aurangabad, Ors. Vs. State of Maharashtra 2015(1) Mh.L.J. 182; e) Bijoe Emmanuel Ors. Vs. State of Kerala ors. (1986) 3 SCC 615 f) Gainda Ram Ors. Vs. Municipal Corporation of Delhi Ors. (2010) 10 SCC 715 g) B.P. Sharma Vs. Union of India Ors. (2003) 7 SCC 309 Respondents' side h) All Cargo Logistics Ors. Vs. Union of India (2017) SCC OnLine Bom. 2419; i) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be agreeable to the Court it cannot interfere. 6. The correctness of the reasons which prompted the Government in decision making, taking one course of action instead of another is not a matter of concern in judicial review and the Court is not the appropriate forum for such investigation. 7. The policy decision must be left to the Government as it alone can adopt (sic decide) which policy should be adopted after considering all the points from different angles. In matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental right is not shown Courts will 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 practical ones and may justify, if they do not require, rough acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the nature of terms and conditions of tender. The 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, locks, cuts, entrances, graving docks, graving blocks, inclined planes, slipways, gridirons, moorings, transitsheds, warehouses, tramways, railways and other works and things appertaining to any dock, and also the portion of the sea enclosed or protected by the arms or groynes of a harbour; (h) goods includes livestock and every kind of movable property; (m) major port has the same meaning as in the Indian Ports Act; (q) port means any major port to which this Act 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 G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms. (1) All conveyances and goods in a customs area shall, for the purpose of enforcing the provisions of this Act, be subject to the control of officers of customs. [(2) The imported or export goods may be received, stored, delivered, dispatched or otherwise handled in a customs area in such manner as may be prescribed and the responsibilities of persons engaged in the aforesaid activities shall be such as may be prescribed.] 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 of the twelve Major Ports of India. Commissioned in the year 1989, it is the number one container port in the country. JNPT has initiated various steps to improve all the productivity parameters to reduce the cost and time for doing busin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 changer for the EXIM trade. 21 The limited role of JNPT, Customs, IPA, DG Shipping and Private Terminal Operators has been explained in Clause (f). The respective roles have been discussed with all the stakeholders before issuing of the tender in question. It is reiterated that The idea is only to create a platform for a transport operators to work to the requirements of the DPD model and provide end to end transport solution. The role of JNPT, Customs, DG Shipping, Indian 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. Cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transporter for the transportation of container cargo on any particular route. Importers shall not be allowed to use own fleets . In these backgrounds, requirement is for an Efficient Transporters with sound business model. 23 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 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 provided to select more number of tenderer in a route. The volume of each route is estimated. The Grievance Redressal Committee is provided in clause 5.8, that will address the issues of stakeholders related to the transport solution. The Committee shall ensure the overall quality of service of the transport solution. It is also made clear about the limited role of JNPT, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, 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 examination of the goods by the Custom Authority on payment of duty within 48 hours of the arrival of the vessel. In the year, 2008, Chief Commissioner of Custom, Nhava Seva issued a Facility Notice No. 63 of 2008( FN 63/2008 ) as per which DPD was introduced for the first time in Mumbai Port and the importers with minimum volumes of 300 TEUS annually on the basis on their track record and reputation, with minimum compliance under the Customs Act, 1962 and on the basis of self assessment were allowed 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, fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 161 of 2016, as illustrated in further details below. 57. ............ Once the regulations deal with such matters, then, it is not necessary that separate provisions have to be made for each matter covered by sub section (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 imported or export goods in customs area. If sub section (2) of section 141 enables the Board to make regulations for this purpose so as to assist the officers of Customs in performing their functions and duties, then, all the more there is no substance in the contentions of Mr. Dwarkadas that the officials lack the power or jurisdiction to issue the impugned notices. The impugned notices are referable to the regulations which are made under the provisions of the Act. Therefore, issuance of public notices is implicit and inherent in the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id logistic solution. Then, various suggestions on this aspect are referred and further directions have been issued. 70. ...If there is a confusion, chaos and delay then, that may be advantageous to the petitioners, but it would be certainly detrimental to the public interest. The larger public interest has to be subserved and once that is ensured, then, the same prevails over the commercial or business interests of the petitioners. For their commercial or business motives, a decision taken in public interest cannot be interfered with. The 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 selected region wise and hence is discriminatory against the Petitioners as it would unjustly deprive the Petitioner of their b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to encourage and develop the DPD Model of clearance of 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 transporters in two weeks time. JNPT to plan 4th Container Terminal, kept in mind, the increase in traffic that would be handling by DPD and DPE. The JNPT, therefore, decided to provide and arrange for transportation of the containers from the port area based on per determined routes. 30 The preamble to the tender provides: (i) Drawback and issues arising out of the existing CFS Model, which has led to increase in the transaction cost and time due to its logistic costs and additional detention; (ii) Advantages of the DPD Model and the benefits it has in reducing the delivery time and costs, which in turn, will also decongest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the total cargo handled by Respondent No. 2, the balance 50% being the export cargo. Thus, the tender affects only 14% of the total cargo handled by Respondent No. 2 under the DPD Model. It is therefore, respectfully submitted that the tender for selection of transporters is designed to implement the DPD model, which is part of the larger policy of the Government of India. To successfully implement the DPD policy and to ensure efficient removal of the containers 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 and regulate entry and access to the port area. The functions of Respondent No. 2 are inter alia, set out in Section 42 of the MPT Act. Respondent No. 2 is authorized to decide the manner in which the containers shall be stacked a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S. 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 8 9 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 which can vary between ₹ 8,000/ to ₹ 15,000/ . iv) To address the issues that arose out of the CFS Model, the Government of India had proposed the DPD Model which envisages a significant reduction in transaction cost and time. From 2008, the shipment logistics by way of the DPD Model has come to be gradually implemented at JNPT. In the DPD Model, the intermediary process of transferring the goods to a CFS is eliminated. An importer, accredited by Customs, is permitted to take 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 import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, created parking spaces, converted holding yard into processing area, shifted customs formation from gate to processing area, removed tool booth, deployed additional security personnel to support to the police, introduced CCTV surveillance camera at important junction, created control room and simplified the time consuming procedures. 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 stake holder 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 power and jurisdiction of Respondents No breach of law. 37 The challenge is raised by the container operators, Association, importers and transporters to the entire tender but not only to the tender conditions. There is no question of breach of fundamental rights of any association, as such, the breach of individual rights, even if any, required to be considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through the 4/5 gates route wise, area wise. 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 and the transporters. They have required to arrange their affairs even of this nature, keeping in mind the policy/regulations and the scheme so adopted in the interest of all. It is a matter of contract only. The Respondents have nothing to do with such rights. Such streamline policy can be stated to be taking away any fundamental rights and/or legal rights of the transporters and/or importers. The new policy is for proper implementation of the aims and objects so announced in the preamble of the 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. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. We have to consider the facts and circumstances of the case and so also change the policy decision, keeping in mind, the requirement of time and the situation. State policy cannot be regulated by the private stake holders 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 stake holders 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 it is within the framework of law and their power and jurisdiction unless it is contrary to law and/or fundamental rights. The scope of judicial review is very limited specifically when, there is no contra factual and/or material data placed on record except assumption and presumption. This is in the background that the tender itself not yet implemented and/or acted upon because of interim order obtained by the Petitioner in the Petition. Everything is halted so also the implementation of the new scheme and/or mechanism. This is in the background that the Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sportation policy of this nature, only at the instance of transporters, importers, containers and other stake holders. 44 We are inclined to observe that the Respondents need to consider overall system and mechanism, keeping in mind the DPC policy, government initiatives and the requisite transportation smooth delivery of goods and transportation. The restriction, therefore, so imposed by selecting the route and number of importers, agents, and to carry out the business of transportation through the said main tenderer/importers, 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, therefore, not in the interest of public at large. Individual cases and grievances, if any, and/or difficulties even if any, is always matter of discussion and negotiation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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 per mature 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, keeping in mind the judgments of the Supreme Court, the classification and the tender conditions so imposed and the mechanism so announced unless contrary material brought on record, it is well within the object sought to achieve. The classification and the action is reasonable and well within the framework of declared policy and power and authority of the Respondents. All Cargo (supra) decision is connected. 48 The Petitioners' counsel tried to distinguish the case of All Cargo (supra), by saying 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, submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the interim order passed by this Court. The submissions and the contentions on assumption and presumption at the instance of transporters, manufacturers and/or importers, is therefore, unacceptable. The private parties commercial agreements with the transporters or the importers cannot be within the purview and power of the Respondents. The Respondents 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 grant to all the concerned to do the respective business. The Respondents tender, at this stage, cannot be stated to be reflecting non application of mind, arbitrary and/or unjust. Bijoe Emmanuel Ors. (supra) is distinguishable on facts and circumstances itself and specifically for the reasons so recorded above. That Judgment, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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