Allowed

The Board of Trustees of the Port of Mumbai v. the Tariff Authority for Major Port and Anr.

Bombay HC10 Aug 2009WP/2634/2004

Case brief

AI extract

What is this about?

The Division Bench quashed an order of the Tariff Authority rejecting a lighterage charge proposal because the mandatory personal hearing was conducted only by the Chairman. The Court directed the Authority to reconsider the proposal and objection before itself, within three months, alongside the related case.

What did the court decide?

Order dated 17.3.2003 set aside; order dated 2.6.1999 set aside; both cases remitted to the Authority for fresh hearing within three months.

The Board of Trustees of the Port of Mumbai Vs… — Labour and Industrial Disputes | Bombay HC (2009)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION NO.2634 OF 2004

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The Board of Trustees of the
Port of Mumbai.

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...Petitioner

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vs.

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1.Tariff Authority for Major
Ports & another.

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...Respondents.

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Mr.E.P.Bharucha, Sr.Advocate with B.H.Patel i/b.
M/s.Little & Co., for Petitioner.

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Mr.Janak Dwarkadas, Sr. Advocate with Yash Kapadia
i/b. S.V.Srivastava & Co., for Respondents.

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AND

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WRIT PETITION NO.2414 OF 1999

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Ispat Industries Ltd....Petitioner

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vs.

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The Board of Trustees of the
Port of Mumbai....Respondent

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Mr.Janak Dwarkadas, Sr. Advocate with Yash Kapadia
i/b. S.V.Srivastava & Co., for Petitioner.

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Mr.E.P.Bharucha, Sr.Advocate with B.H.Patel i/b.
M/s.Mulla & Mulla & CBC, for Respondent.

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AND

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WRIT PETITION NO.2539 OF 1999

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The Board of Trustees of the
Port of Mumbai.

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...Petitioner

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vs.

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1.Tariff Authority for Major
Ports & others.

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...Respondents.

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Mr.E.P.Bharucha, Sr.Advocate with B.H.Patel i/b. Mulla
& Mulla & C.B.C., for Petitioner.

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Mr.Janak Dwarkadas, Sr. Advocate with Yash Kapadia
i/b. S.V.Srivastava & Co., for Respondents.

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CORAM: D.K.DESHMUKH &
 R.G.KETKAR, JJ.

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DATED: 10th August,2009.

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P.C.:-

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1.Parties to all these petitions are same and
therefore, they can be conveniently disposed of by
common order.

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2.Before the Authority constituted under

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Section 47A of the Major Port Trusts Act, a proposal

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was moved by the Port Trust of Bombay for levying
lighterage charges. On behalf of Ispat Industries
Ltd. an objection was raised to the competence of the

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Port Trust to levy lighterage charges. The Objection

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submitted by Ispat Industries Ltd. came to be

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registered as Case no.TAMP/5/97-BPT and the proposal

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submitted by the Mumbai Port Trust was registered as

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case no.TAMP/2/97-MBPT. Both these cases were

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disposed by two separate orders passed on the same
date viz. 2.6.1999. The Authority by that order held

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that the Port Trust is not competent to levy
lighterage charges, but it also held that the rate at
which the Port Trust had proposed to charge lighterage

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charges i.e. Rs.15/- per metric ton was justified.
Being aggrieved by the decision of the Authority that

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the Port Trust is not competent to levy lighterage
charges, writ petition no.1516 of 2000 has been filed

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in this Court by the Port Trust. In that petition,

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challenge is to the rejection of the proposal by the
Authority that was submitted by the Port Trust for

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levying lighterage charges. The Port Trust has also
filed Writ Petition no.2539 of 1999 challenging the
order of the Authority upholding the objection
submitted by Ispat Industries Ltd. Ispat Industries

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Ltd. has filed Writ petition no.2414 of 1999

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challenging the observations in the order of the
Authority that the rate of Rs.15/- per metric ton was
justified and also seeking return of money paid by
them to the Port Trust because now the Authority has
held that the Port Trust cannot levy lighterage
charges.

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3.Writ Petition no.1516 of 2000 was decided by

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the Division Bench of this Court by order dated
8.1.2002. This Court set aside the order passed by the

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Tariff Authority holding that the Port Trust has no
authority to levy lighterage charges and remitted the
matter back to the Authority with a direction to give
personal hearing to the petitioner. After remand, the
Authority passed order dated 17.3.2003 reiterating its

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decision that the Port Trust has no authority to levy
lighterage charges. Writ petition no.2634 of 2004 has

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been filed by the Port Trust challenging the order
dated 17.3.2003.

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4.A short submission made by the learned

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Counsel appearing for the Port Trust in Writ Petition
no.2634 of 2004 is that by order dated 8.1.2002 the
Division Bench has directed the Tariff Authority as
constituted under the Act to reconsider the
petitioner� proposal and give opportunity of personal
hearing to the petitioner. The learned Counsel submits
that however, the opportunity of personal hearing
which was directed to be given, by this Court, was

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given only by the Chairman, and two members of the
Authority who were admittedly in the Office were not
present at the time of personal hearing. According to

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the learned Counsel, therefore, the order passed by

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the Chairman which is impugned in Writ Petition no.
2634 of 2004 has been made in violation of the
direction issued by this Court. He also submits that
under Section 48 of the Major Port Trusts Act power to

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fix and modify the tariff is vested in the Authority.
The Authority under Act consists of Chairman and two

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members. According to the learned Counsel, therefore,
before rejecting the proposal or before upholding any
objection to the proposal, the Authority under the Act
is obliged to give an opportunity of hearing to the
parties, and if an opportunity of hearing is given
only by the Chairman who was one of the members, it
will be in violation of principles of natural justice.

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5.We have heard the learned counsel appearing
for Ispat Industries Ltd. He do not dispute that the
Authority consists of Chairman and two members. He,
however, relied on the Regulation 19 of the
Regulations framed by the Authority which permits the
Authority to delegate its powers to the Chairman
and/or a member or to the two members for processing
of a case.

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6.We have perused the record. So far as the

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order impugned in Writ Petition no.2634 of 2004 is
concerned, that order dated 17.3.2003 is clearly in
breach of the direction issued by this Court by order
dated 8.1.2002. The operative part of the direction

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reads as under:-

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�We direct the Tariff Authority as
constituted under the Act to reconsider
the petitioners proposal and pass
appropriate order in accordance with law,
after giving opportunity of personal
hearing to the Petitioners.�

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Thus, this Court had directed the Tariff Authority as
constituted under the Act to reconsider the proposal
and to give an opportunity of personal hearing to the
petitioner. Admittedly, the opportunity of personal

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hearing to the petitioner was not given by the
Authority but only by its Chairman. In our opinion,

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therefore, as the order has been made clearly in
violation of the direction issued by this Court which
is binding on all the parties to the petition, the
order dated 17.3.2003 has to be set aside. In our

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opinion, in terms of that order, the Authority as

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constituted under the Act viz. the Authority
consisting of Chairman and two members was obliged to

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give personal hearing to the petitioner before making
the order. The order impugned is, therefore, liable to

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be set aside.

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7.So far as the reliance placed by the learned

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Counsel appearing for Ispat Industries Ltd. on the
regulations framed by the Port Trust is concerned,
even if it is assumed that the Authority has power to
delegate some of its functions to the Chairman, the
provision will not authorise the Chairman to give
personal hearing alone when the matter is to be

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decided by the entire Authority.

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8.Now so far as the order which is challenged
in Writ Petition no.2539 of 1999, upholding the
objection raised by the Ispat Industries Ltd. is
concerned, in our opinion, the objection raised by the

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Ispat Industries Ltd. results in rejection of the
proposal of the Port Trust. Therefore, as we propose
to direct the Authority to consider the proposal
submitted by the Port Trust afresh, in our opinion,
the order upholding the objection raised by the Ispat

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Industries Ltd. has to be set aside, because if that
order remain intact, the Authority will not be in a

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position to consider the proposal submitted by the
Port Trust with open mind. Writ petition no.2539 of
1999 also therefore, succeeds and is allowed. Order
dated 2.6.1999 in case no.TAMP/5/97-BPT is set aside,
and that case is also remitted back to the Authority
to be decided afresh alongwith the case no.TAMP/2/97-
MBPT.

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9.So far as the Writ Petition no.2414 of 1999

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is concerned, it is filed by the Ispat Industries Ltd.
As by our order passed in Writ Petition no.2539 of
1999 and the order passed in Writ Petition no.2634 of
2004, we have set aside the orders passed in both the
cases, no further order is required to be passed in
this writ petition. Writ petition no.2414 of 1999 is
therefore, disposed of.

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10.The Authority is directed to consider both,

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the proposal submitted by the Port Trust and the

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objection raised by the Ispat Industries Ltd, in

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accordance with law, including the order passed by
this Court and shall make fresh order thereon in

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accordance with law, as expeditiously as possible, in
any case within a period of three months from the date

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on which writ of this order is served on the

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Authority. During the pendency of the proceedings
before the Authority, the interim order that is

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presently operating in these petitions shall continue
to operate. The Authority may permit both the sides to

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submit additional material that they wish to produce.

The Board of Trustees of the Port of Mumbai v. the Tariff Authority for Major Port and Anr.

Case brief

What is this about?

What did the court decide?

The Board of Trustees of the Port of Mumbai v. the Tariff Authority for Major Port and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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