Apollo Paper Mills Ltd. Vs Union of India and Ors.

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION

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 REVIEW PETITION NO.161 OF 2005
 IN
 WRIT PETITION NO.5788 OF 1997
 Apollo Paper Mills Ltd.,
 a company incorporated under
 the Companies Act, 1956 having
 its Registered Office at 113,
 Mittal Chambers, Nariman Point,
 Mumbai - 400 021. .. Petitioner.

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 V/s.
 1. Union of India & Others,
 (through the Joint
 Secretary,Ministry of Law,
 Justice & Company Affairs,
 Aayakar Bhavan, M.K.Road,
 Churchgate, Mumbai-400 020.
 2. Commissioner of Customs,
 Jawahar Customs House
 JNPT, Nhava Sheva,
 Dist. Raigad, Tal. Uran.
 3. Asstt. Commissioner of Customs
 (Docks), Mumbai having his
 office at Customs House,
 Ballard Estate,
 Mumbai - 400 038.
 4. The Asstt. Commissioner of
 Customs, Project Registration
 Estate, Mumbai - 400 038.
 5. Central Warehousing Corporation,
 a wholly owned Corporation of
 Government of India, having
 its office at Warehousing
 at warehousing Bhavan,
 4/1, Siri Institutional Area,
 Hauz Khas, New Delhi 110 016
 and represented through
 the Manager (CFS),
 Dronagiri, Mumbai Node JNPT
 Area, C.W.C., New Bombay.
 6. The Manager (CFS), Dronagiri,
 Node JNPT Area,
 Central Warehousing
 Corporation,New Bombay. .. Respondents.

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 Mr.K.R. Dhanuka with Mr.Bhupendra Singh and Mr.S.P.
 Dhanuka for the petitioner.
 Mr.A.J.Rana, senior counsel with Mrs.S.V.Bharucha for

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 the respondent Nos.1 to 4.
 Mrs.S.I.Shah for respondent Nos.5 & 6.

¶8

 CORAM : V.C. DAGA &
 J.P. DEVADHAR, JJ.

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 DATED : 20TH DECEMBER, 2005.

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ORAL JUDGMENT :(PER J.P. DEVADHAR, J.)

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 1. Heard counsel on both sides.

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 2. Rule. Rule made returnable forthwith. By
 consent of the parties, the review petition is taken
 up for final hearing.

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 3. By this petition, the petitioner seeks
 review of the judgment and order dated 28th October,
 2005 passed in Writ Petition No.5788 of 1997 mainly
 on two grounds. Firstly, it is contended that there
 are factual errors in the said judgment which needs
 to be rectified. Secondly, it is contended that the
 decision of the Apex Court in the case of Assam
 Sillimanite Limited V/s. Union of India reported in
 1990 (3) Supreme Court Cases 182 which was cited
 during the course of argument by the counsel for the
 petitioner has not been considered in the impugned
 judgment and order dated 28th October, 2005. It is
 the contention of the petitioner that due to the
 delay in assessment of duty and the consequences
 thereof, the entire project of the petitioner has
 been shelved. It is submitted that having found that

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 the action of the Central Warehousing Corporation in
 rejecting the waiver application was in breach of the
 principles of natural justice, this Court, instead of
 remanding the matter in the light of the decision of
 the Apex Court in the case of Assam Sillimanite
 (supra) ought to have referred the matter to
 arbitration by appointing an arbitrator to determine
 the quantum of loss / profit / damages / compensation
 to the petitioner for the lapses on the part of the
 respondents.

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 4. As regards the first contention is
 concerned, although the errors pointed out are
 inconsequential, we deem it proper to rectify the
 typographical errors in the judgment. Accordingly,
 we order that the impugned order dated 28th October,
 2005 be modified as follows:

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 a) In para 5 of the judgment, the value of the
 consignment shown at "Rs.1.07 crores" be
 substituted as "Rs.1.67 crores excluding
 freight and duty".

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 b) In para 29(a) of the judgment, date of

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 filing of the bill of entry mentioned as
 "May 25, 1996" be substituted as "March 25,
 1996".

¶20

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 c) In para 29(a) of the judgment, the date of
 assessment of goods mentioned as "June 9,
 1997" be substituted as ‘June 18, 1997’.

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 5. As regards the second contention is
 concerned, the decision of the Apex Court in the case
 of Assam Sillimanite Limited (Supra) relied upon by
 the counsel for the petitioner has not been referred
 to in the impugned judgment because the said judgment
 of the Apex Court is not applicable to the facts of
 the case in hand. In the case of Assam Sillimanite
 (supra), the issue raised was, whether the Government
 was justified in terminating the mining lease granted
 to the petitioner therein and granting fresh leases
 over the same area in favour of a Government Company.
 It was the contention of the petitioner therein that
 the termination of the lease without notice was in
 breach of principles of natural justice. The above
 contention was upheld by the Court. However, the
 petitioner therein prayed that in view of the lapse
 of time, in stead of putting back in possession of
 the leased premises, the petitioner be awarded
 compensation for the wrongful premature termination
 of the leases by referring the matter to the court
 appointed arbitrator to determine the compensation.
 In that context, the Apex Court referred the matter

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 to the arbitration by appointing an arbitrator for
 determining the damages. In the present case, we
 have held that the petitioner who is guilty of
 contravening the provisions of the Customs Act and
 the petitioner who has approached this Court
 belatedly, has not made out a case for shifting the
 warehousing charges upon the Central Government. As
 regards the order passed by the Central Warehousing
 Corporation, we have accepted the contention of the
 petitioner that the rejection of the waiver
 application of the petitioner without assigning any
 reason was in breach of principles of natural justice
 and accordingly we have remanded the matter for
 denovo consideration. Neither in the pleadings there
 is any prayer for referring the matter to arbitration
 for quantification of loss/damages nor this Court has
 power to grant such relief under Article 226 of the
 Constitution of India. Hence, the oral request made
 by the learned counsel for the petitioner could not
 be entertained. Accordingly, we hold that the second
 argument advanced by the Counsel for the petitioner
 is without any merit and the same is rejected.

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 6. The review petition is disposed of
 accordingly with no order as to costs.

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 (V.C. DAGA, J.)

¶28

 (J.P. DEVADHAR, J.)

Apollo Paper Mills Ltd. v. Union of India and Ors.

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Apollo Paper Mills Ltd. v. Union of India and Ors.

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