TMI Blog2020 (5) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... THAT:- On careful examination of all the facts and submissions made by the Ld. Counsels for the parties, this Court is of the opinion that petitioner has failed to make out a prima facie case for grant of injunction. The circulars/guidelines and advisories issued by respondent no.1 and 2 are not binding upon respondent no. 3 to 6. Some of the advisories only contemplate that authorities concerned should adopt sympathetic and humanitarian approach and has advised them not to charge ground rent or penal charges. In these circumstances, there is no material on record which prima facie suggests that any right of the petitioner has been violated by the respondents. This Court is further of the opinion that since respondent no.3 to 6 are not bound by various guidelines/ letters/ advisories issued by respondent no.1 2, the balance of convenience also does not lie in favour of the petitioner. There are no grounds for grant of injunction/restrain order in favour of the petitioner and against the respondents are made out at this stage - The application filed by petitioner under Section 151 CPC for injunction is, therefore, dismissed. - C.M. No. 10546/2020 in W.P.(C) 3029/2020 - - - D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Since several questions of facts as well as law have been raised which require detailed affidavits and submissions and that may take considerable time, the learned counsel for the petitioner/Foundation has prayed for disposal of its application under Section 151 CPC seeking injunction/ restraint order 5. The prayer for ad interim relief is strongly opposed by respondents No.1, 2 and 3 to 6. 6. Learned Central Government Standing Counsel (CGSC) appearing for the first respondent/ Union of India (UOI) submitted that since the subject containers/materials are lying on ports, therefore, this Court has no territorial jurisdiction to entertain this petition. Learned CGSC for respondent No.1/UOI further submitted that consequent upon issuance of Notification of 24th March, 2020 and 15th April, 2020 by Ministry of Home Affairs, lockdown was imposed from 22nd March, 2020 till 3rd May, 2020 due to Covid 19 and Ministry of Shipping/ respondent No.2, vide order PD-14033/4/2020-PD VII dated 21st April, 2020 had directed that no penal charges, dwell time charges, detention charges etc. shall be levied on import and export shipments for the delay in evacuation of cargo during the lockd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... national trade involving export and import of goods and materials and also help small exporters, whose consignments are less than container loads (LCL) and that respondent No.2 does not have any control or supervision over activities or practices or cost structures of the CFSs or ICDs service providers. 12. Learned ASG appearing for respondent No.2 also stated that the tariff of various services provided by CFSs/ICDs is a private arrangement between the CFSs/ICDs and their customers unless the CFS/ICD is actually located on land that may have been leased or granted on concession basis by a major port onto a CFS/ICD operator. It was submitted that only CFS operators at Kandla Port and Jawahar Lal Nehru Port are under control of respondent No.2 with regard to fixation of tariff etc. 13. Learned ASG further submitted that assertion of petitioner / Foundation that the communication dated 21st April, 2020 of respondent No.2/ Ministry of Shipping shall apply upon all CFSs or ICDs is entirely misconceived, as the said communication of respondent No.2 is applicable only to Major Ports in the country by virtue of powers under Section 111 of the Major Port Trusts Act, 1963, administere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that situs of office of an authority framing statutory rule or issuing an executive order, would not by itself constitute any cause of action. 17. Learned Senior Counsel for respondents No.3 6 had further submitted that CFS is a common user facility with public authority status equipped with fixed installations and offering services for handling and temporary storage of import/export laden and empty containers carried under customs control and other agencies. It was submitted that respondents No. 3 to 6 being facilitator to render services, have contractual arrangement with independent third party contractors for rendering these services. 18. It was submitted by the learned senior counsel that the various guidelines and advisories, relied upon by petitioner /Foundation, and issued by first and second respondent or the Ministry of Home Affairs under Section 10(2)(l) of the Disaster Management Act, 2005 are applicable to the secretaries of ministries and the departments of Government of India and direction cannot be issued to a private establishment to give up their rights in a contractual arrangement with the customers, so as to reduce the financial impact of the dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd vice versa; labour charges for stuffing, de-stuffing, loading, unloading, lease rent for the facility along with cost of the availability of space for storing empty containers/ additional cargo in case of congestion, power and fuel charges for handling of cargo/ containers through equipment, staff costs for handling their operations, survey activities, up-keeping security and safety of cargo/containers, terminal ground rent for use of port infrastructure, container repairs and other administrative costs for running the facilities. It was submitted that petitioner/Foundation s prayer seeking to lift / de-stuff the containers/ material without payment of ground rent, demurrage, detention charges, anchorage charges from the traders, importers, exporters, CFS etc. after payment of usual valid charges, is highly arbitrary in view of the fact that there is a clear liability of GST on the members of the respondent No.3/association, which if exempted, will be a cost on respondent No.3/association. 23. Learned senior counsel further contended that the claim of petitioner/Foundation to be manufacturers of PPE kits or other COVID19 related essential goods, is blatantly false as the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Others Vs. Modiluft Ltd. (2003) 6 SCC 65 to submit that the courts shall not grant interim relief which is actually the final relief, without deciding the issues involved in the writ petition. Reliance is also placed upon decision in Federal Bank Ltd. Vs. Sagar Thomas and Others (2003) 10 SCC 733 to submit that the Supreme Court has clearly stated as to in what circumstances a writ will lie. Reliance is also placed by learned senior counsel upon Supreme Court s decision in K.K. Saxena Vs. International Commission on Irrigation And Drainage and Others (2015) 4 SCC 670 and Energy Watchdog Vs. CERC Ors. (2017) 14 SCC 80. 29. In rebuttal, learned counsel for the petitioner has relied upon decision of this Court in Sterling Agro Industries Ltd. Vs. Union of India ILR (Del) 2011 (6) and decision dated 19th February, 2018 in W.P.(C) No.2916/2017 , titled as Devender Kumar Vs. Union of India Ors., to submit that this Court is well within its jurisdiction to entertain this petition. Attention of this Court is drawn to the Affidavit filed along with reply by respondent, which is signed by Commissioner (Customs), ICD, Patparganj, Delhi. Learned counsel for the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he documents appearing on record and carefully considered the rival submissions. The petitioner has sought interim relief on the basis of circulars/ directions/ guidelines issued by Respondent nos. 1 2. It is submitted that respondent nos. 3 to 6 cannot charge ground rent i.e. penal charges demurrage etc. because of the clear directions of Ministry of Shipping i.e. Respondent no.2 and UOI, Respondent no.1. Thus, the whole case of the petitioner is based upon various guidelines/ directions as well as advisories issued by Respondent nos.1 2. 34. However, perusal of record and submissions of Ld. ASG for respondent no.2 and Ld. CGSC for respondent no.1 reveals that they have not supported the petitioner s version that by virtue of Circulars issued by them, petitioner is not liable to pay penal charges. Ld. ASG on behalf of respondent no.2 has categorically submitted that tariff for the various services provided by CFS is in fact a private arrangement agreed between the CFS and its customers. Respondent no.2 i.e. Ministry of Shipping is not privy to the terms of the private contract executed by CFS and is also not the regulator of the tariff rates that are charged by CFS. The Ld ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Through the above, the Central Government has made it clear that the smooth functioning of the Ports remain vital for the country as Ports are the main source for import and exports of goods. 3. However, given the nation-wide lockdown, there is an inevitable impact in the form of delays in evacuation of cargo and inability to fulfill obligations by various parties /stakeholders due to the affect on the downstream services. 4. ln view of the situation arising because of the lockdown and after considering the representations received from various stakeholders, Major Ports are directed that (i) ln the light of the MHA order No. 40-3/2020-DM-1 (A) dated 25.03.2020 and by invoking power under Section 53 of Major Port Trust Act 1963; each Major Port shall ensure that no penalties, demurrage, charges, fee, rentals are levied by the Major ports on any port user (traders. Shipping lines, concessionaires, licensees etc.) for any delay in berthing. loading/unloading operations or evacuation/arrival of cargo caused by the reasons attributable to lockdown measures from 22nd March to 14th April, 2020. (ii) Therefore, each Major Port shall exempt or remit demurrage ground re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (vi) All Director/DS in Ministry of Shipping 36. Similarly vide another letter dt. 21.04.2020 guidelines were issued by respondent no.2 regarding non charges of penal charges, demurrages, detention Charges etc and it runs as follows: No. PD-14033/4/2020-PD VII Government of India Ministry of Shipping Transport Bhawan, 1, Parliament Street, New Delhi-11 0001 Dated 21st April, 2020 To Chairperson CMD Sub: Issues at Major Ports relating to; 1) Exemptions/Remission of charges 2) Force Majeure Due to COVID 19 pandemic and lockdown measures in several countries, the logistic chain has been severely disrupted and associated production consumption centres have been affected. The logistic chains are going through an unusual and massive shock from the disruptions on supply side as well as the demand side. The logistic chain related businesses including traders, importers, exporters, port operators, shipping lines, transporters are facing huge challenge in maintaining their businesses due to lower trade volume as well as cash flow issues. Therefore, it is required that some relief measures are t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to such PPP concessionaires; (i) Revenue share, royalty and equipment hire related charges: Ports shall allow deferment of April, May and June months' revenue, royalty and equipment hire charges without any interest, if requested by concessionaire. The said deferred amount shall be paid by concessionaire after interest free period of three months(reckoned month to month i.e. the charges due in April 2020 shall be paid in month of August 2020)0r alternatively, through six monthly equated installments at interest rate equal to RBI's 91-days Treasury Bill (Primary) yield rate (as on the due date of initially deferred amount) after expiry of interest free period. (ii) Lease rentals, licence fees related charges: Ports shall allow waiver of lease rentals, licence fees and similar charges for three months (April, May and June '2020) to the extent the volume of cargo dropped compared to monthly average cargo volume of last calendar year i.e. 1st Jan 2019 to 31st Dec 2019. For example, the 'average monthly volume' is I 0,000 TEUs based on the cargo handled by concessionaire from 1st Jan 2019 to 31st Dec 2019. If the cargo volume for the month of April'2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch as obligations under various contracts (involving the Major Ports) are concerned. The aforesaid orders do not impact or dilute the fact that each Major Port needs to remain operational during the COV1D-l9 pandemic and continue cargo operations in all respects. In view of the situation arising because of the COVID-19 pandemic and after considering the representations received from various stakeholders, Major Ports are directed that - (i) The period for completion of any Project under implementation in PPP mode or otherwise, shall be extended by the Ports. (ii) For PPP projects under implementation, the Major Ports can permit waiver of all penal consequences on a case-to-case basis along with deferment of performance obligations as per relevant provisions of Concession Agreement. (iii) The period of Force Majeure starts from the date of order of Ministry of Finance referred above and will end when the competent authority so orders. 7. The aforementioned point 3(i) and (ii) shall not be applicable to Mumbai Port Trust and Mormugao Port Trust. 8. All Major Port Trusts shall issue relevant applicable orders for both remission and Force Majeure in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07 of 2020 Sub.: Advisory on non-charging of container detention charges on import shipments 1. Whereas, the Ministry of Home Affairs, Government of India has issued order No 40-3/2020-DM-1 (A) dated 24.03.2020 to impose a complete lockdown in India for a period of 21 days in view of the threat posed by the spread of COVID-19 epidemic. 2. Whereas, the Ministry of Home Affairs has vide its order No 403/2020-DM-1 (A) dated 25.03.2020 issued an addendum to the Guidelines annexed to the said order, exempting seaports and its operational organisations from this lockdown to ensure regular supply of goods in the country. 3. Whereas, the Government is working towards smooth functioning of the Ports and its operational organizations, some delays in evacuation of goods from the ports have become inevitable due to the disturbance of the downstream services. 4. Whereas, as a result of these developments some cargo owners have either suspended their operations or are finding it difficult to transport goods/cargo and complete the paper work, resulting in detention of containers without their fault. 5. Whereas, some shipping lines have on their own volition dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reas, the Ministry of Home Affairs has vide its order No 403/2020-DMJ (A) dated 25.03.2020 issued an addendum to the Guidelines annexed to the said order, exempting seaports and its operational organisations from this lockdown to ensure regular supply of goods in the country. 3. Whereas, the Government is working towards smooth functioning of the Ports and its operational organisations, given the nation-wide lockdown some delays in evacuation of goods from the ports have become inevitable due to the affect on the downstream services. 4. Whereas, as a result of these developments some cargo owners have either suspended their operations or are finding it difficult to transport good/cargo and complete the paper work, resulting in imposition of demurrage, ground rent beyond the allowed free period penal anchorage/berth hire charges and other performance related penalties due to reasons beyond their control. 5. Whereas, the Ministry of Shipping, Government of India has directed all the major ports vide F. No. PD -14300/4/2020 PD VII dated 31.03.2020 to consider exemption or remission of demurrage, ground rent beyond allowed free period, penal anchorage/berth hire charges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ociation of Multimodal Transport Operators Association of India, Mumbai. Copy to: Secretary to the Government of India, Ministry of Shipping, Transport Bhawan, I, Parliament Street, New Delhi-11000 1 (Attn. : Shri P. Chhabra, Deputy Chief Controller of Chartering). 39. Ld. ASG has submitted that the above circulars or communications issued by Director General of shipping applies to shipping lines only and not to CFS. It was further submitted that the aforementioned circular/order and notifications are specifically targeting a relevant category or group/entities/persons that excludes CFS. These circulars also, therefore do not help the petitioner in release of goods without payment of ground rent. Ld. ASG has also categorically submitted that respondent no.2 does not have administrative control over the respondent no. 3 to 6. In view of the above facts and submissions of Ld. ASG, it is clear that respondent no. 2 cannot issue any directions to the effect that certain benefits/waiver of penal charges should be granted by CFSs who do not fall within their domain. It is, therefore, clear from the circulars as well as submissions of Ld. ASG that respondent no. 2, cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f consignments in many parts of the country for reasons that are beyond their control. In the circumstance, numerous importers and trade associations have requested for the waiver of penal charges, which are collected by the custodians on the imported goods lying at various ports, ICDs, CFSs beyond the normal free period. 2. In this context, it is seen that the Director General of Shipping, M/o Shipping vide Order no. 7/2020 dated 29.03.2020 and vide Order no. 8/2020 dated 31.03.2020 has advised the Indian seaport, carriers, shipping lines not to impose any container detention charges on import and export shipments for the lock down period on cargo owners/consignees of non-contianerized cargo (i.e. both brake bulk and liquid cargo) whether LCL or not for the lock down period due to delay in evacuation of cargo caused by reasons attributed to lockdown measures. Ministry of Shipping has again in its order vide no. PD14033/4/2020-PD VII dated 21st April, 2020 (copy enclosed), directed inter alia that no penal charges demurrage, detention charges, dwell time charges etc. shall be levied and ports shall cause strict implementation by port users including ICDs, CFSs, Shipping Lines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has put the trade, particularly importers, under a very difficult situation, as considering the prohibitory orders, transport of goods along with movement of Importers/Customs Brokers and their staff, is not feasible to secure the release of imported goods. Moreover, due to ongoing lockdowns and prohibitory orders loading and transportation of goods to the importers premises is also very difficult. 4. Apprehending that, delays in securing release of goods from the ICD/CFS may result into containers detention charges levied by shipping lines along with container ground charges levied by CFS/ICDs, Importers and Custom broker associations have requested the undersigned to look in to the matter. 5. In view of above, Ministry of Shipping vide Order No. PD14300/4/2020-PD VII dated 31.03.2020 at para-4 has made specific directions related to not levying penalties, demurrage, charges, fee, rentals for any delay inter-alia in evacuations of cargo caused due to the reasons attributable to the lock down measures from 22nd March 2020 to 14th April 2020. It also directs exemptions and remissions in certain regards as discussed in para 9 thereof by the Ministry of Shipping Order under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04.2020 runs as follows: OFFICE OF THE COMMISSIONER OF CUSTOMS, INLAND CONTAINER DEPOT, PATPARGANJ OTHER ICDs, NEAR GAJIPUR, DELHI-110096 C.No.VIII/6/HQ/ICD/PPG/Reg.Comp/Instructions/15/2020 Date: 24.04.2020 ADVISORY NO. 2/2020 To, The Custodians of ICD-PPG and Haryana ICD under Commissioner of Customs ICD-PPG other ICDs (As per Annexure A) Sub.: Advisory for COVID-19 Pandemic- Waiver of Demurrage Charges levied by ICDs/CFSs/Ports/Terminal Operators during lockdown - Ministry of Shipping. Order vide No. PD-14033/4/2020-PD VII dated 21.04. 2020-reg. Attention of the importers, Customs Brokers and all other stakeholders is invited to CBIC letter F. No. 394/46/2020-Cus(AS) dated 23.04.2020 issued by Director(AS) on the above subject (copy enclosed). 2. The Ministry of Home Affairs, Govt. of India vide order No. 403/2020-DM-1(A) dated 24.03.2020 and subsequent order dated 15.04.2020 along with its amendments directed to impose lockdown till 3rd May, 2020 to contain COVID-19 pandemic in the country. 3. On account of lockdown measures the logistics chain of businesses have been most adversely impacte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advised to adopt a sympathetic and humanitarian approach while levying the container detention charges/ground rent charges on import cargo for the lockdown period. Thus, it is very clear from the above circulars that these are in the form of advisories and are not directory in nature and do not mandate respondent no.3 to 6 not to charge ground rent, penal charges/ demurrage etc. 45. The question which now arises for consideration is whether the above guidelines/letters which are only advisory in nature and contain no directions under any statute can bind CFS and direct them not to charge ground rent etc. Ld. Sr. Counsel for the respondent no. 3 to 6 has vehemently argued that they have their containers located on a land which is outside the land/territory of the port and they are not deriving any kind of concession from port authorities in any kind or in any manner and, therefore, the advisories/ guidelines which do not have statutory force cannot bind them. It is further submitted that since respondent no. 1 and 2 are not privy to the contract between them i.e. respondent no. 3 to 6 and their customers, they cannot, therefore, in any manner govern or modify the terms of agreeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tom Houses, Nhava Sheva Police, District Collector Raigad, Gram Panchayat and several other Governmental agencies, that import deliveries commenced significantly by first week of April and got normalized to a large extent by 15th April 2020. Our members played a significant role in this process. Whereas the Association has been invited by Government of India through different Ministries/ agencies/ authorities and based on the interactions and discussions held, the Association has shared Government advisories and sensitized all members from time to time. Most of member CFSs recognizing the difficulties faced by the trade have been considerate and on their own accord, when approached by the importers/shipping 1ines/CHAs have been extending substantial waivers either in form of additional number of days or in percentage reduction at mutually agreed terms with Importers/shipping lines/CHAs. At the same time the members are also concerned about their rising and additional costs including payment to employees, loaders and other workers and service providers, besides rent, taxes, bank liabilities etc. and the livelihood of about 25,000 workers and their families depend directly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prima facie do not bind respondent no. 3 to 6 who are not availing any concession from port authorities and who have their containers located outside the Port Land. Moreover, the letters/guidelines/advisories also cannot intervene or interfere in a private contract which respondent no. 3 to 6 have with their customers i.e. petitioner. Respondent no. 3 to 6 on their own have given considerable relaxation/waiver of ground rent and are sympathetically considering the request of cargo owners in view of the Covid-19. On careful examination of all the facts and submissions made by the Ld. Counsels for the parties, this Court is of the opinion that petitioner has failed to make out a prima facie case for grant of injunction. As discussed earlier, the circulars/guidelines and advisories issued by respondent no.1 and 2 are not binding upon respondent no. 3 to 6. Some of the advisories only contemplate that authorities concerned should adopt sympathetic and humanitarian approach and has advised them not to charge ground rent or penal charges. In these circumstances, there is no material on record which prima facie suggests that any right of the petitioner has been violated by the respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X
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