Feedback   New User   Login      
Tax Management India. Com TMI - Tax Management India. Com
Acts / Rules Notifications Circulars Tariff/ ITC HSN Forms Case Laws Manuals Short Notes Articles SMS News Highlights
        Home        
Extracts
Home List
← Previous Next →

Gujarat State Petronet Limited Versus M/s. Gail India Limited And 3

2018 (1) TMI 566 - GUJARAT HIGH COURT

Pipeline laying activity in the Dahej SEZ area for transportation of Natural Gas - Suppression of facts - SEZ Act - PNGRB Act - “infrastructure facility” within the meaning of Section 2(p) of the SEZ Act read with the definition of “infrastructure” under Rule 2(1)(s) of the Special Economic Zones Rules 2006 - Held that: - it is not disputed that the respondent No.2 M/s.OPAL needed an additional supply of gas, which the petitioner had refused to book for transmission through its pipeline laid in .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the said Rules - the respondent No.1 and respondent No.2 were not required to take any approval from the Board of Approval under Section 9(d) of the said Act. - Much was argued on whether there is any inconsistency between the SEZ Act and PNGRB Act, and whether the SEZ Act has an overriding effect over the PNGRB Act or not. It can not be gainsaid that in view of Section 51 of the SEZ Act, the provisions of the said Act would have effect notwithstanding anything inconsistent therewith contai .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

, 2008, as amended in 2016, is applicable to the respondent No.1 GAIL or not, also pales into insignificance, in view of the fact that requisite approvals have already been obtained by the respondent Nos.1 and 2 under the SEZ Act for the purpose of laying 8” dia pipeline in question. There is no provision contained in the SEZ Act, which grants exclusivity to any person, which otherwise would encourage monopolistic and restrictive trade practices, or which would run counter to and frustrate the v .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

: Mr Kamal Trivedi, SR. ADVOCATE WITH , Mr Mihir Joshi, Sr. Advocate with Mr Vishwas K Shah, Caveator And Mr S.I. Nanavati, Sr. Advocate with Mrs Suman Khare, Advocate And Mr Rituraj M Meena, Advocate And Mr Devang Vyas, Advocate ORDER CAV JUDGMENT 1. The petitioner Gujarat State Petronet Limited (hereinafter referred to as GSPL ) has filed the present petition, seeking following reliefs as contained in paragraph 19 thereof:- 19. a. To quash and set aside the permission accorded by the responde .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

.4 i.e. the Approval Committee in its 76th meeting held on 11.10.2007 at Item No.76.4.1; d. Pending the hearing and final disposal of this petition restrain the respondent Nos.1 and 2 from carrying out any pipeline laying activity in the Dahej SEZ area for transportation of Natural Gas; e. To grant such other and further reliefs as this Hon ble Court deems fit and proper in the facts and circumstances of the case; f. To award costs of this petition. 2. It may be noted that the petition filed on .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

relief restraining the respondent No.1 M/s.GAIL from laying and connecting the 8 Natural Gas Pipeline by tap off from its existing Dahej-Uran Pipeline (DUPL) for supplying gas to the respondent No.2 ONGC Petrol Additions Limited (hereinafter referred to as M/s.OPAL ) situated in Special Economic Zone, Dahej (hereinafter referred to as SEZ, Dahej ) till the next date. The said order is continued till this date. The respondent No.2 M/s.OPAL on filing the Civil Application No.15785 of 2017, seeking .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

r developing gas grid in the State of Gujarat for transportation of natural gas. On the Special Economic Zones Act, 2005 (hereinafter referred to as the SEZ Act ) having come into force, the petitioner Company had entered into a Co-Developer Agreement dated 27.7.2009 (Annexure- A) with the respondent No.3 M/s.DSL, the Developer under the said Act. According to the petitioner, the necessary permission being No.F2/9/2003/EPZ dated 12.11.2009 (Annexure-B) was accorded by the Government of India, Mi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

cture facility, which includes gas pipeline made for transmission of natural gas to the units set up in the Dahej SEZ area and accordingly the petitioner is also transmitting gas to the respondent No.2 M/s.OPAL. However, the respondent No.1 M/s.GAIL in violation and in contravention of the provisions contained in the SEZ Act sought permission from the respondent No.4 Approval Committee to lay 8 dia pipeline from its existing Dahej Ural Pipeline to the plant of the respondent No.2 M/s.OPAL for pr .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d Act. The petitioner being a Co-Developer had exclusivity to develop infrastructure for transportation of gas and distribution of gas within SEZ area in view of the agreement dated 27.7.2009 entered into with the respondent No.3, DSL. The petitioner, therefore, wrote a letter on 8.11.2017 (Annexure-E) to the respondent No.3 i.e. the CEO, M/s.DSL, requesting him to reconsider the decision of granting approval to the respondent No.1. The CEO of the respondent No.3, therefore, wrote a letter dated .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

DSL and the Co-Developer GSPL. A similar letter was also written to the respondent no.2 on 29.11.2017 (Annexure-H). The petitioner apprehending that the respondent No.1 M/s.GAIL would make the Tap off and lay the pipeline for transportation of gas to the respondent No.2, filed the present petition on 30.11.2017 seeking afore-stated reliefs. 4. The respondent No.1 GAIL and the respondent No.2 OPAL filed elaborate affidavits-in-reply raising various contentions, including the preliminary objection .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ter on 8.11.2017, the petition was filed on 30.11.2017 with oblique motive. 5. It has been contended by the respondent No.1 inter alia that M/s.DSL is a company floated by GIDC and ONGC duly notified by the Ministry of Commerce and Industry, Government of India, as a Developer of Multi Product SEZ at Dahej. On 26.5.2004, GIDC had approved the proposal of the respondent No.1 for laying 30 dia pipeline Dahej-Hazira Gas Pipeline through GIDC corridor. The Dahej SEZ was notified by the Ministry of C .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tural Gas Regulatory Board (Authorizing Entities to lay, build, operate or expand Natural Gas pipelines) Regulations, 2008 (hereinafter referred to as the PNGRB Regulations 2008 ) (Annexure-R/1). On 27.12.2011 a lease deed was executed between the respondent No.2 M/s.OPAL and respondent No.3 M/s.DSL, and clause 4.6 thereof permitted the M/s.OPAL to obtain any service, amenities or facilities, which are not provided by the M/s.DSL and the Co-Developer the petitioner (Annexure- R/2). On 12.10.2016 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

OPAL across GIDC/SEZ area in existing Right of Use (ROU) of the respondent (Annexure-R/6). Accordingly, on 29.9.2017 the respondent No.3 had granted, in principle, approval to the respondent No.1 (Annexure-R/7). Thereafter, on 11.10.2017 the respondent No.4 - Approval Committee in its meeting decided to approve the said request of the respondent No.1 vide Item No.76.4.1. On 27.10.2017, the Development Commissioner of M/s.DSL wrote a letter to the respondent No.1 and the respondent No.2, stating .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ng it to refrain from undertaking any gas pipeline activity without seeking permission from the petitioner and the respondent No.3, though the respondent No.3 had already granted permission as per the letter dated 29.9.2017. It is also contended that the respondent No.1 already had its natural gas pipeline laid near the respondent No.2 M/s.OPAL s location. Since the respondent No.2 M/s.OPAL required such quantity of natural gas, which the petitioner was not in a position to fulfill, the responde .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

(9 km) existing for the supply of natural gas to one of the units i.e. M/s.Torrent Power Limited, apart from the natural gas pipeline infrastructure of the petitioner and the said unit is not functioning on the basis of natural gas supply and transportation received from the petitioner GSPL. It is also contended that the respondent No.1 is supplying natural gas in liquid form through a pipeline laid and operated by ONGC to ONGC s C-2, C-3 Dahej Plant located in the Dahej SEZ since 2003 and the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

f the natural gas pipeline and that the premises of M/s.OPAL is located approximately 25 kms from the existing pipeline of the respondent No.1. The respondent No.1, therefore, had accepted the request of the respondent No.2 M/s.OPAL for transportation of natural gas, for which the commercial arrangements were also entered into. According to this respondent, supply of gas by creating Tap off would not fall within the definition of infrastructure facilities contained in Section 2(p) of the SEZ Act .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ed detailed affidavit-in-reply raising number of issues and placing on record voluminous correspondences that had ensued between the parties through E-mails and letters, to show as to how the petitioner had suppressed material facts from the Court. Mainly it has been contended that the respondent No.2 is a joint venture company promoted by M/s.Oil and Natural Gas Corporation and co-Promoted by M/s.GAIL i.e. the respondent No.1, and Gujarat State Petroleum Corporation Ltd. (GSPC). The respondent .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

on 27.12.2011 (Annexure-R/1). As per Clause 4.5 of the said lease deed the supply of piped gas was to be made by the petitioner GSPL. As per Clause 4.6 of the said lease deed the respondent No.2 M/s.OPAL was free to obtain any service, amenities or facilities, which were not provided by the M/s.DSL or Co-Developer/Service Provider, directly from the concerned third party agencies. Pursuant to the Clause 4.5 of the lease agreement, a Gas Transmission Agreement (hereinafter referred to as GTA ) da .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

GTA. According to the respondent No.2 M/s.OPAL, it had initially demanded CT of 0.5 MMSCMD during the construction and commissioning phase of the plant, however, on the completion of the commissioning of the plant, it had anticipated increase of gas requirement for 100% production of its plant. M/s.OPAL, therefore, in terms of Clause 5.2 of GTA had made a request for the additional booking of transmission capacity to the petitioner through various E-mails, requesting an additional CT of 0.80 MMS .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

booked, as per the E-mail dated 13.10.2016. According to the respondent No.2, it had made several requests time and again for additional capacity, however, the petitioner had refused to provide the same. Lastly, it was refused by the petitioner as per the E-mail dated 24.4.2017. All the communications through E-mails have been produced on record by the respondent No.2 as Annexure-R/II (colly). 8. Thus, according to the respondent No.2 M/s.OPAL, the petitioner GSPL had failed to provide the trans .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ransmission capacity from the said existing DUPL pipeline by laying 8 dia pipeline for 0.25 meters to its plant. According to the respondent No.2, the respondent No.1 M/s.GAIL for laying 8 dia pipeline had sought permission from the Development Commissioner of M/s.DSL, vide the letter dated 31.8.2017 and the respondent No.2 M/s.OPAL had also sought consent from the respondent No.3 DSL, vide its letter dated 15.9.2017 for laying of 8 dia pipeline. The respondent No.3 DSL vide letter dated 29.9.20 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

etter dated 8.11.2017 to the respondent No.3 DSL to reconsider its decision granting approval for laying 8 dia pipeline without marking any copy thereof to M/s.OPAL. According to the respondent No.2, respondent No.3 DSL all of a sudden issued a letter dated 24.11.2017 to the M/s.OPAL informing that for laying 8 dia pipeline, it was required to get NOC from GSPC. According to the respondent No.2 though the said letter was dated 24.11.2017 it was posted on 27.11.2017 and was received by M/s.OPAL o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

29.11.2017 was received on 1.12.2017 after the interim relief was granted by the Court in the present petition. The said letter was replied by M/s.OPAL vide its letter dated 1.12.2017 (Annexure-R/VI). 10.The respondent No.2 has further contended that by the GTA Amendment Agreement dated 22.11.2017 (Annexure-R/VII) executed between the GSPL and M/s.OPAL, the GSPL had committed the capacity of only 0.75 MMSCMD CT to M/s.OPAL for the period from 1.1.2018 to 31.12.2019. Thus, according to the respo .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Approval Committee having validly approved the request of M/s.OPAL and M/s.GAIL, there was no need to obtain any approval from the Board of Approval, the laying of pipeline being not to create infrastructure facility in the SEZ as contemplated in Section 2(p) of the SEZ Act. There was also an arbitration Clause contained in the GTA/Co-Developer Agreement executed between the parties, and therefore, alternative remedy being available to the petitioner, the petition deserved to be dismissed. 11. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

pondent Nos.1 and 2, and further contending inter alia that the petitioner and the respondent No.2 M/s.OPAL had entered into the GTA on 12.8.2014, valid for a period of five years, under which the petitioner had undertaken to transport the gas through its pipeline. After the execution of the GTA, the parties thereof have to enter into Capacity Tranche (CT) by way of Amendment Agreements from time to time, whereby the specific period, specific quantity, specific entry point and the tariff applica .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ed on the request and requirement of M/s.OPAL. The petitioner had always transported the booked capacity under the said CTs to the M/s.OPAL. It is further contended that the M/s.OPAL was in the process of commissioning its plant till January 2017 and the volume of its requirements were fluctuating, and therefore, M/s.OPAL opted for entering into various short-term CTs for specific volume for additional requirements above the 0.5 MMSEMD booked under CT-1. 12. As regards E-mail dated 12.10.2016 of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

PLL, Dahej terminal and M/s.OPAL unit has been annexed as Annexure-D to the said affidavit-inrejoinder, and the same is made part of this order to understand the issue in better manner. 13. According to the petitioner, to overcome the issue of lower pressure at the delivery point, the petitioner GSPL had requested Petronet LNG Ltd (PLL) to provide separate header to GSPL at the PLL, Dahej terminal and accordingly separate header has been provided in September 2017, and therefore, the supply pres .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

.43 MMSCMD was transported to M/s.OPAL. To meet with the balance requirement, M/s.OPAL used to invite tenders for short term gas supply on delivered basis, and used to enter into Delivered Contracts with the supplier of Gas. Relying upon Clause 4.5 of the land lease agreement dated 27.12.2011 entered into between M/s.OPAL and M/s.DSL, it has been stated that the said clause recognized that M/s.OPAL Unit was required to transport gas through pipeline network of GSPL, the Co-Developer of SEZ. Sinc .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nts only on 29.11.2017, whereas it was received by the petitioner on 27.11.2017, the Court had directed the Company Secretary of the petitioner and the CEO of the respondent No.3 to file their respective affidavits as per the order dated 12.12.2017. Accordingly, the said affidavits were filed and the CEO of the respondent No.3 had also remained personally present on 13.12.2017. Pertinently, the CEO of the respondent No.3 was not in a position to answer the query of the Court put to him, as to wh .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

submissions may be stated as under:- 15. Submissions of learned Sr. Advocate Mr.Mihir Thakore for the petitioner GSPL: 15.1 As regards the preliminary objection raised by the respondents in respect of alternative remedy being available, it has been submitted that the Courts have not been designated so far, as contemplated under Section 23 of the SEZ Act. Section 42 of the said Act for deciding disputes by Arbitrator does not apply to the parties as the dispute could not be said to be between tw .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rring writ petition under Article 226 of the Constitution of India, as held by the Supreme Court in case of Calcutta Discount Co. Ltd. Vs. Income Tax Officer, Companies District and Anr., reported in AIR 1961 SC 372 and in case of Whirlpool Corporation Vs. Registrar o Trade Marks, Mumbai, reported in (1998) 8 SCC 1. 15.2 As regards suppression of material facts it has been submitted that all the relevant facts for challenging the decision of the approval committee were disclosed in the petition. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

germane or relevant for deciding the issue whether the approval committee s decision was without jurisdiction or ultra vires the provisions of SEZ Act. In this regard, reliance is placed upon the decision of the Supreme Court in case of S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar and Ors., reported in (2004) 7 SCC 166. 15.3 As regards the challenge to the impugned decision of the Approval Committee, it has been submitted that laying of pipeline for transportation of natural gas by t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

grant such approval. As per Section 3(11), the person intending to provide infrastructure facility has to submit the proposal to the Board of approval after entering into the agreement with the developer and as per Section 3(12), the person having approval of Board of approval and the Central Government for providing infrastructure facilities would be a Co-Developer. 15.4 There is no restriction under the SEZ Act in respect of granting exclusivity, and therefore, the exclusive right was granted .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

lude future legislations, as interpreted by the Supreme Court in case of Yakub Abdul Razak Memon Vs. State of Maharashtra, reported in (2013) 13 SCC 1 (p. 653). 15.5 The respondent No.1 being Central Government authorized entity under Regulation No.17 of the PNGRB Regulations 2008 (hereinafter referred to as the Regulations 2008), the schedule-J thereof does not apply to the respondent No.1. 15.6 Under the GTA, the petitioner has executed various capacity tranches from time to time, according to .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

from that source by the respondent No.2. 15.7 Denying the allegations of monopolistic and restrictive trade practice, it has been submitted that the petitioner is booking capacity in its pipeline on non-discriminatory basis as per the provision of PNGRB Regulations. However, there were pressure issues due to which the petitioner could not book additional capacity for the respondent No.2. The entities, who had already booked capacities in the petitioner s pipeline were in a position to transport .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Use in Dahej SEZ area, and the respondent No.1 was required to obtain permission from the Development Commissioner/Board of Approval. As the Development Commissioner was not authorized to grant permission, it was only the Board of Approval, which was the competent authority for granting permission for laying of pipeline by the respondent No.1. Against the said approval Committee s decision the petitioner had written letter dated8.11.2017 to the respondent No.3, and realizing their mistake, the r .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

arned Sr. Advocate Mr.Kamal Trivedi and learned Sr. Advocate Mr.Mihir Joshi with learned Advocate Mr.Vishwas Shah for the respondent No.1 M/s.GAIL:- 16.1 Raising the preliminary objection against the maintainability of the petition, it has been submitted that the petitioner has efficacious alternative remedy since the disputes between the petitioner, M/s.OPAL and M/s.GAIL could be resolved in a civil suit to be filed in the Designated Court, or through arbitration under Section 42 of the SEZ Act .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

g hearing on urgent basis at the eleventh hour on 13.11.2017. f approached the Court with clean hands and had suppressed gas transmission agreement between itself and M/s.OPAL, NOC dated 12.10.2016, the in-principle approval granted by the respondent No.3 on 29.9.2017 and other correspondences. The conduct of the petitioner in trying to promote its holding company GSPC for supply of gas and seeking monopoly for transmission and supply of gas itself dis-entitles the petitioner from claiming any r .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

using GSPC pipeline infrastructure, M/s.GAIL had supplied natural gas to M/s.OPAL. There is an independent and separate natural gas pipeline infrastructure (9 km) existing for supply of natural gas to the Torrent Power Limited, apart from the natural gas pipeline infrastructure of the Co-Developer i.e. the petitioner. The respondent GAIL since 2013 is supplying natural gas in liquid form through the pipeline laid and operated by ONGC to ONGC s C-2 C-3 Dahej plant located in the DSL. The respond .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

2012 of Appellate Tribunal for Electricity in case of Torrent Energy Ltd. Vs. Dakshin Gujarat Vj Co. Ltd. and Ors., reported in (2014) 8 SCC 444. 16.5 Pressing into service the PNGRB Regulations 2008 and Clause 1(g) of Schedule-J to the said Regulation, it has been submitted that the respondent No.1 M/s.GAIL has to provide connectivity to the consumers within a tariff zone in a natural gas pipeline and grant of any restrain order against the M/s.GAIL would compel it to violate and contravene the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Dahej SEZ, under Section 2(p) of the said Act or under Rule 2(1)(s) of the said Rules. The said supply of gas is nothing but sale of goods. 16.6 The definition of infrastructure facilities given in Section 2(p) read with Rule 2(1)(s) is exhaustive in nature, inasmuch as Rule 2(1)(s) uses the words means followed by includes with the enumeration of specific/named facilities. Transmission of Gas pipeline is not mentioned therein. Letter dated 12.11.2009 (Annexure-B) granting approval to the agree .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

could not be said to be without jurisdiction. 16.8 Alternatively, it has been submitted that the requirement of obtaining NOC from petitioner was beyond the purview of the said Act and once DSL having given the permission, the CEO, DSL had no power to issue letter dated 24.11.2017. Invoking the principles of interim relief, it has been submitted that the respondent M/s.GAIL has spent huge amount of ₹ 20 crore for various works for laying down 25 mtr long pipeline for the purpose of supplyi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

following submissions:- 17.1 The petition was filed by the petitioner concealing material facts and misinterpreting the provisions of the Act and creating imaginary urgency, when almost entire work of laying pipeline was completed by M/s.GAIL which had started in October-November, 2017. The material facts not stated in the petition have been highlighted during the course of the submissions and relying upon the various decisions of the Supreme Court the prayer has been made to dismiss the petiti .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

on behalf of the respondent No.1, it has been submitted that M/s.OPAL is a joint venture company promoted by ONGC with 49.36% share and co-promoted by M/s.GAIL with 49.21% share and GSPC with 1.43% share, which is parent company of the petitioner GSPL. In response to the request made by M/s.OPAL for transportation of additional supply of gas on firm basis by various E-mails and for a period from 1.2.2017 to 31.1.2022, the petitioner GSPL had refused to supply additional quantity of gas by E-mail .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

re also made to show as to how the petitioner had tried to use monopolistic structure against M/s.OPAL by not confirming the transmission through its network on firm basis. 17.3 Relying upon the decision of the Supreme Court in case of Hardeep Singh Vs. State of Punjab and Ors., reported in (2014) 3 SCC 92, it was sought to be submitted that the words means and includes used in definition clause gives hard and fast definition and no other meaning can be assigned. Hence, the definition of infrast .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the Approval Committee under Section 14(a) and (c) of the SEZ Act. Hence, approval granted by the Approval Committee in its meeting held on 11.10.2017 was within its powers and agenda. 17.5 All manufacturing units arrange a redundant back up system for their raw material supply so that in case of any eventuality, the running plants are not stopped, because any stoppage of gas supply for even five minutes will result into approximately ₹ 15 crore loss to M/s.OPAL. The balance of convenienc .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

at such approval was likely to result into breach of contract dated 1.7.2009 entered into by the respondent No.3 with the petitioner, the CEO of the respondent No.3 had written the letter dated 24.11.2017 to the respondent GAIL and OPAL for obtaining NOC from the petitioner company before the execution of the work at the site. According to him, the petitioner company was given office copy of the said letter dated 24.11.2017 on 27.11.2017, and the letter was dispatched to the respondent Nos.1 and .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

under subsection (1) of section 13; (c) & (d) xxx (e) Board means the Board of Approval constituted under subsection (1) of section 8; (f) CoDeveloper means a person who, or a State Government which, has been granted by the Central Government a letter of approval under subsection (12) of section 3; (g) Developer means a person who, or a State Government which, has been granted by the Central Government a letter of approval under subsection (10) of section 3 and includes an Authority and a Co .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

referred to in subsection (2) to (4), or undertake any authorised operation may, after entering into an agreement with the Developer referred to in subsection (10), make a proposal for the same to the Board for its approval and the provisions of subsection (5) and subsections (7) to (10) shall, as far as may be, apply to the said proposal made by such person or State Government. (12) Every person or a State Government referred to in subsection (11), whose proposal has been approved by the Board .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

omic Zones. (2) Without prejudice to the generality of the provisions contained in subsection (1), the powers and functions of the Board shall include - (a) to (c) xxx (d) granting of approval or rejecting of proposal for providing infrastructure facilities in a Special Economic Zone or modifying such proposals; (e) to (i) xxx The functions of Development Commissioner are enumerated in Section 12. Section 13 pertains to constitution of Approval Committee and Section 14 pertains to powers and fun .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

standing anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The Central Government has framed the Rules namely the Special Economic Zones Rules, 2006 in exercise of the powers conferred by Section 55 of the SEZ Act. The relevant definition Infrastructure as contained in Rule 2(1)(s) reads as under: 2(s) infrastructure means facilities needed for development, operation and maintenance .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nication, data transmission network, information technology network, hospitals, hotels, educational institutions, leisure, recreational and entertainment facilities, residential and business complex, water supply, including desalination plant, sanitation facility; 20. It is beyond any cavil that the provisions of the statute must receive strict interpretation and that scrupulous compliance thereof is imperative. However, before appreciating the submissions made by the learned Advocates for the p .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he respondents is that the petition was filed with oblique motive and ulterior purpose suppressing material facts from the Court. According to them, the petitioner had not disclosed all the correct, material and relevant facts in the petition and the same were sought to be brought on record by way of affidavits-in-rejoinder, in reply to the affidavits-in-reply filed by the respondent Nos.1 and 2. In this regard, it may be stated that as held by the Division Bench of this Court in case of Hiralax .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s. In matters of the nature of high prerogative writs it is not only desirable, but necessary that the petitioner should be precise in putting forward his case, which the opposite party is called upon to meet. It is also but proper that the petitioner should state grounds with sufficient particularity and disclose in the petition all the material and the grounds on which they move the Court for the relief asked. It would otherwise lead to most undesirable and unsatisfactory results if petitioner .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

vocate Mr.Mihir Thakore appearing with learned Advocate Mr.Aspi Kapadia for the petitioner and learned Sr. Advocate Mr.Kamal Trivedi and learned Sr. Advocate Mr.Mihir Joshi with learned Advocate Mr.Vishwas Shah appearing on caveat for the respondent GAIL, had granted an ad-interim relief, restraining the respondent No.1 GAIL from laying and connecting the 8 natural gas pipeline by tap off from its existing Dahej-Uran pipeline for supplying gas to the respondent M/s.OPAL situated in SEZ, Dahej. T .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the correspondences that had ensued between the parties, more particularly with the respondent No.2 M/s.OPAL with regard to the subject matter of the petition. 22. It is pertinent to note that though the petitioner had entered into Gas transmission agreement with the respondent No.2 M/s.OPAL on 12.8.2014 agreeing to make necessary arrangements for transportation of gas for the respondent No.2 M/s.OPAL from time to time, subject to the terms and conditions mentioned therein, and had also entered .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Court also found that GTA and other documents should have been produced on record, the same were produced. The main contention raised by the respondent No.2 in its affidavit-in-reply is that because the petitioner refused additional booking capacity for transmission of gas through its pipeline, and suggested to look for an alternative arrangement, the respondent No.2 had sought for the alternative arrangement from the respondent No.1 and accordingly the respondent Nos.1 and 2 had sought the per .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

vati it is for the Court and not for the litigant to decide as to which fact is or is not material. It is the obligation of the litigant to state candidly all material facts. It is also well settled legal position that if there is any suppression of material facts on the part of the petitioner or twisted facts have been placed on record by the petitioner, the petition should be dismissed without entering into the merits of the matter. In this regard a very pertinent observations made by the Supr .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

f utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the Writ Court may refuse to entertain the petition and dismiss it without entering into merits of the matter. 34. The object underlying the above principle has been succinctly stated by Scrutton, L.J., in R v. Kensington Income Tax Commissioner .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

state fully and fairly the facts, and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the Court will set aside, any action which it has taken on the faith of the imperfect statement . 35. It is well settled that a prerogative remedy is not a matter of course. In exercising extraordinary power, therefore, a Writ Court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d, the very functioning of the writ courts would become impossible. 24. In case of Bhaskar Laxman Jadhav and Ors. Vs. Karamver Kakasaheb Wagh Education Society and Ors., reported in (2013) 11 SCC 531, it has been observed in paragraphs 44, 45, and 46 as under:- 44. It is not for a litigant to decide what fact is material for adjudicating a case and what is not material. It is the obligation of a litigant to disclose all the facts of a case and leave the decision making to the Court. True, there .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

pellant may be revoked. It was observed as follows: 9. ...It is of utmost importance that in making material statements and setting forth grounds in applications for special leave, care must be taken not to make any statements which are inaccurate, untrue or misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by makin .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

with clean hands, he is not entitled to be heard and indeed, such a person is not entitled to any relief from any judicial forum. It was said: 21. The principle that a person who does not come to the court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in others courts and judicia .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

r having suppressed material facts from the Court and having made incorrect and inaccurate statements in the petition, the same deserves to be dismissed on the said ground alone. Nonetheless, the petition having been argued at length on various other issues, the Court deems it proper to deal with those issues also. 2. As regards alternative remedy, it was sought to be submitted by the learned Sr. Advocate Mr.Trivedi for the respondent No.1 GAIL that the disputes between the parties could be reso .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

be a debatable issue, which the Court is not called upon to decide in this petition. Even if it is presumed that the same could be referred to the arbitration, whether the said remedy could be said to be effective or efficacious remedy or not, would be another issue. In any case, as held by Supreme Court in Whilepool Corporation Vs. Registrar of Trade Mark (supra), the existence of the alternative remedy itself would not operate as bar, where the writ petition is filed for the enforcement of an .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

hat, let us examine the other issues involved in the matter. 3. The bone of contention raised by the learned Sr. Advocate Mr.Mihir Thakore for the petitioner is that the action of laying of pipeline for transportation of natural gas by the respondent No.1 GAIL in Dahej SEZ area being an infrastructure facility within the meaning of Section 2(p) of SEZ Act, the necessary permission was required to be obtained by the GAIL from the Board of approval constituted under Section 8, and that the approva .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ho, or a State Government, which intends to provide any infrastructure facility in the identified area referred to in Sub-section (2) to (4) or undertake any authorized operation made, after entering into an agreement with the developer referred to in Sub-section (10) make a proposal for the same to the Board for its approval. As per Sub-section (12) thereof, the person whose proposal has been approved by the Board and who has been granted letter of approval by the Central Government would be co .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ure or other facilities necessary for the development of a Special Economic Zone. It does not state about the facilities necessary for the development of the units set up in the SEZ. In the second part, it is stated that or other facilities which may be prescribed . In the opinion of the Court the words infrastructure facilities themselves imply that such facilities would be required at the time of establishment and development of the Special Economic Zone. Further, the other infrastructure faci .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of the units set up by an entrepreneurs in the Special Economic Zone. By necessary corollary, it would mean that the facilities or amenities needed for the units could not be said to be the infrastructure facilities needed for the Special Economic Zone. 5. It is well settled principle of interpretation of statutes that no word or provision should be considered redundant or superfluous. The legislature attributes a particular meaning to each word in a statute, and that word of a statute must pri .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ose and the legislative intention is that every part of the statute should have effect. It may not be correct to say that a word or words used in a statute are either unnecessary or without any purpose to serve, unless there are compelling reasons to say so looking to the scheme of the statute and having regard to the object and purpose sought to be achieved by it. A Constitution Bench of this Court in Jaipur Zila Sahakari Bhoomi Bank Ltd. Vikas vs. Shri Ram Gopal Sharma and Ors. [JT 2002 (1) SC .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

purpose of the proviso and it becomes meaningless. It is wellsettled rule of interpretation that no part of statute shall be construed as unnecessary or superfluous. The proviso cannot be diluted or disobeyed by an employer......... The interpretation of statute must be such that it should advance the legislative intent and serve the purpose for which it is made rather than to frustrate it. 6. In case of Gurudevdatta VKSSS Maryadit and Ors. Vs. State of Maharashtra and Ors., reported in (2001) 4 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

iven their ordinary meaning. It is yet another rule of construction that when the words of the statute are clear, plain and unambiguous, then the Courts are bound to give effect to that meaning, irrespective of the consequences. It is said that the words themselves best declare the intention of the law giver. The Courts have adhered to the principle that efforts should be made to give meaning to each and every word used by the legislature and it is not a sound principle of construction to brush .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

l society. Therefore, the requirement of the completion of the period of three years from the date of its investing any part of its fund in the shares of such federal society would apply only to those societies which became member society of the federal society after 20th August, 2000. In this view of the matter, the impugned judgment of the High Court does not suffer from any infirmity. Even if there remained any doubt in the matter of interpreting the proviso, the Ordinance that has been promu .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Ordinance also has been given a retrospective effect, to be effective from 23rd August, 2000. The Ordinance having been held to be valid by us as stated above, the socalled prohibition contained in the first proviso to subsection (3) of Section 27 will not apply to all those societies which have already become members of the federal society prior to 2382000. 7. In the light of afore-stated proposition of law, the words necessary for the development of a Special Economic Zone contained in Sectio .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nity of generation and distribution of power, gas or other form of energy , it is difficult to accept the said submission. As held by Supreme Court in case of Hardeep Singh Vs. State of Punjab (supra), wherever the words means and include are used, it is an indication of the fact that the definition is a hard and fast definition , and no other meaning can be assigned to the expression that is put down in the definition. It indicates an exhaustive explanation of the meaning which for the purpose .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s or services of the respondent No.1 M/s.OPAL, which is one of the units set up in the DAL could not be said to be an infrastructure facility necessary or needed for the development of the respondent No.3 DSL, as contemplated in Section 2(p) read with Rule 2(1)(s) of the said Rules. In that view of the matter, the Court is of the opinion that under the circumstances, the respondent No.1 and respondent No.2 were not required to take any approval from the Board of Approval under Section 9(d) of th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

vide letter dated 27.10.2017 is required to be construed as the approval granted in respect of the matter contained in Section 14(1)(c) read with Section 12(2) of the Act. The respondent No.3 DSL had also granted in-principle approval to the respondent No.1 as per the letter dated 29.9.2017. The petitioner itself while raising objection against such approval in its letter dated 8.11.2017 had not contended that such facility being infrastructure facility, the respondent No.1 GAIL would be requir .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ion and maintenance of gas transmission pipeline infrastructure and distribution of gas in the SEZ. In this regard, it is pertinent to note that the said agreement was entered into between the petitioner GSPL and the respondent No.3 DSL. The same could not be made binding to the respondent No.1 or respondent No.2, who were not the parties to the said agreement. None of the provisions contained in the said Act contemplates exclusivity to the Co-Developer for providing infrastructure facilities. 1 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

- Developer/service provider for the supply of piped gas to the units of Dahej SEZ, the respondent No.2 had an option to apply to GSPL for gas supply on such terms and conditions as may be mutually agreed between the sub-lessee M/s.OPAL and the Co-Developer GSPL, as contemplated in Clause 4.5 of the said sub-lease agreement. Under the circumstances, in absence of any provision under the Act and in absence of any clause contained in the agreement between the petitioner Co-Developer and the respon .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

r dated 29.9.2017, subject to the conditions mentioned therein. One of the conditions was that the respondent No.1 M/s.GAIL had to obtain permission/approval from the development Commissioner SEZ, Government of India/Board of approval MOCI, Delhi for laying 8 dia pipeline by Tap off from existing M/s.GAIL - DUPL 30 dia natural gas pipeline to M/s.OPAL in Dahej SEZ area. The proposal being not for providing infrastructure facility for the development of SEZ, the approval of Board was not required .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

. The petitioner in the said letter had referred to the Co-Developer agreement executed with Dahej SEZ and stated that the GSPL was entrusted with the sole responsibility to develop, operate and maintain complete natural gas infrastructure facilities in Dahej SEZ, and therefore, the decision to approve the proposal of M/s.GAIL and M/s.OPAL for development of natural gas pipeline for M/s.OPAL was required to be reconsidered. From the said letter, it clearly emerges that the petitioner was aware a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

PC) being Co- Developer for supply of natural gas in Dahej SEZ area, the respondent No.2 was required to get no objection certificate from M/s.Gujarat State Petroleum Corporation (GSPC) before execution of the work at the site. It is pertinent to note that M/s. Gujarat State Petroleum Corporation is the holding company of the petitioner GSPL, and it was the petitioner GSPL who was the Co- Developer and not the GSPC. Be that as it may, it is further pertinent to note that though the said letter w .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ent No.1 M/s.GAIL (Annexure-G) and to the respondent No.2 M/s.OPAL (Annexure-H), intimating that the petitioner was not in a position to issue NOC either to the M/s.GAIL or to the M/s.OPAL for developing natural gas pipeline to connect M/s.OPAL, and requested the GAIL to cease all activities including pipeline laying activities immediately. When the letter dated 24.11.2017 issued by the CEO of the respondent No.3 was received by the respondent Nos.1 and 2 only on 29.11.2017, there was no questio .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the petition on 30.11.2017, though the petitioner was very much aware about the approval granted by the Approval Committee and the respondent Dahej SEZ as back as on 8.11.2017, the Court had directed the CEO of DSL to remain personally present with his affidavit explaining the situation. On his remaining present before the Court, a specific query was put by the Court as to what was the need for issuing the letter dated 24.11.2017 when the respondent No.3 DSL had already granted, the in- principl .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

titioner refusing to grant NOC were prepared in collusion with each other to create an artificial urgency in the matter, to file petition on 30.11.2017, though the petitioner was aware about the granting of approval by the respondent No.3 DSL and by the Approval Committee as back as on 8.11.2017, and though the work of laying 25 mtr., pipeline was already started by the respondent No.1 in October 2017 as stated by the respondent No.2 in its affidavit-in-reply, which has remained un-controverted .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

putes being highly disputed questions are not required to be gone into, and therefore, not dealt with. 15. Much was argued on whether there is any inconsistency between the SEZ Act and PNGRB Act, and whether the SEZ Act has an overriding effect over the PNGRB Act or not. It can not be gainsaid that in view of Section 51 of the SEZ Act, the provisions of the said Act would have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. The expre .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

RB Act, the Act has been enacted to provide the establishment of Petroleum and Natural Gas Regulatory Board to regulate amongst others transportation, distribution, marketing etc, of petroleum products and natural gas so as to protect the interests of consumers and entities engaged in the specified activities to ensure uninterrupted and adequate supply of petroleum, petroleum products and natural gas in all parts of the country and to promote competitive markets. It is not disputed that the prov .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

Discussion Forum
what is new what is new
 


Share:            

|| Home || About us || Feedback || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version