Dismissed

M/S B.M.M. Ispat Ltd., Duly Authorized Officer Mr. K. G. Vijapur v. the Board of Trustees of the Mormugao Port Trust through Its Chairman/Secretary and Anr.

Bombay HC4 Oct 2012WP/696/2012

Case brief

AI extract

What is this about?

This High Court dismissed a writ petition seeking to quash an order halting coal and coke handling at specific berths. The court distinguished the present case from a similar prior appeal where a fait accompli existed with only two days notice. Here, the petitioner received notice before shipping and failed to make alternate arrangements, leading to dismissal.

What did the court decide?

Writ petition for certiorari to quash the order and injunction permitting berthing was dismissed.

M/S B.M.M. Ispat Ltd., Duly Authorized… — Pension and Retirement Benefits | Bombay HC (2012)

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IN THE HIGH COURT OF BOMBAY AT GOA

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WRIT PETITION NO. 696 OF 2012.

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M/S. B.M.M. ISPAT LTD. ...... PETITIONER.

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V/s. THE BOARD OF TRUSTEES OF THE MORMUGAO PORT TRUST AND ANOTHER. …... RESPONDENTS.

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Mr. Nitin Sardessai, Advocate for the petitioner.

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Mr. Y.V. Nadkarni, Advocate for respondent No.1

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Mr. D. Lawande, Advocate for respondent No.2.

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CORAM :- S.J. VAZIFDAR & U.V. BAKRE, JJ. Date : - 4^th October, 2012.

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P.C. :-

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The petitioner seeks a writ of certiorari to quash an

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order dated 24^th September, 2012 issued by respondent No.2 – the Goa State Pollution Control Board and a circular dated 26^th September, 2012, issued by respondent No.1 and a mandatory injunction directing

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the respondents to permit it to berth its vessel at berth Nos. 10 and 11

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of respondent No.1 and discharge its cargo thereat.

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2(A) Respondent No.2 – the Goa State Pollution Control Board (GSPCB), in exercise of powers under Section 31(A) of the Air (Prevention and Control of Pollution) Act, 1981 and under Section 33(A) of the Water (Prevention and Control of Pollution) Act, 1974, revoked the consent to operate order dated 23^rd May, 2012 issued by it to respondent No.1 with respect to the handling of coal and coke only at berth Nos. 10 and 11. Respondent No.1 was also directed to ensure that all the handling of coal and coke at berth Nos. 10 and 11 is stopped until further orders.

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(B) By the said circular dated 26^th September, 2012, respondent No.1 informed all coal/coke importers of the second respondent's order dated 25^th September, 2012, and stated that no coal/coke vessels would be allowed at berth Nos. 10 and 11.

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This writ petition was mentioned yesterday for having it circulated today. We directed the papers in Suo Motu Writ Petition No.8/2001 to be produced and also requested Ms. Norma Alvares who appeared as amicus curiae in that writ petition to appear before us

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today.

4(A) On 1^st June, 2012, the petitioner entered into a contract for purchase of 50,000 MTs of coal for a consideration of US$ 44,63,378.89 from a party in South Africa. It entered in to a charter party agreement dated 18.8.2012 for transporting the coal to India and opened a letter of credit for that amount on 12.9.2012. The ship sailed for India on 27^th September, 2012. The expected date of arrival is 10^th /11^th October, 2012.

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(B) The petitioner entered into another agreement dated 31^st July, 2012 for purchase of 48,744 MTs of coal from a party in Indonesia for a consideration of US$ 26,00,000 and opened a letter of credit for that amount on 17.9.2012. The Seller had arranged for the vessel which was to transport the coal to India. The ship sailed for India on 25.9.2012. The expected date of arrival is 5^th /6^th October, 2012.

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(C) Respondent No.2 passed an order dated 24^th September, 2012 by which respondent No.1 was directed to ensure that all the handling of coal and coke at berth Nos.10 and 11 was stopped until further orders. Respondent No.1 was also directed to submit a detailed

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action plan within 15 days on the basis of which it proposed improving efficiency of the air pollution control measures in order to ensure that the air pollution at Vasco town was reduced. This order was served upon respondent No.1 on the next day i.e. 25^th September, 2012.

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It is important to note that on 26^th September, 2012, the petitioner informed respondent No.1 that the ships were expected to arrive on 5/6^th October, and 10^th /11^th October, 2012. On that day, before berthing a meeting was admittedly held between respondent No.1 and several importers of coal. The meeting was admittedly attended by a petitioner's representative. Respondent No.1 alleges that the persons who had attended the meeting were informed about the impugned order issued by respondent No.2 and that it handed over copies of the impugned circular issued by it to all those who had attended the meeting.

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Mr. Sardessai, learned Counsel appearing on behalf of the petitioner, on taking instructions, admitted that the petitioner's officer had attended the meeting, but denied having been informed about the

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order passed by respondent No.1 and the said circular having been furnished to him at the said meeting. He relied upon the fact that a berthing programme was prepared at the meeting which referred to the expected time of arrival of ships in future. The same, according to him, indicated that the participants at the meeting were in fact given to understand that the loading and unloading operations would continue at the port. This, in turn, according to him, would militate against respondent No.1 having informed the petitioner about the impugned order and the circular.

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Prima facie, we are of the view that the balance of probabilities indicates that the petitioner was informed about the impugned order and the circular on 26^th September, 2012. The berthing programme may well have been prepared by respondent No.1 in the hope that it would be able to comply with the directions in the second respondent's order dated 24^th September, 2012 and even the period stipulated therein. Considering the nature of the impugned order passed by respondent No.1, it is highly unlikely that respondent No.2 would not have been brought it to the attention of the participants at the said meeting. Indeed, respondent No.1 had even issued the

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circular dated 26^th September, 2012 to all the importers, including the agent of the said vessel.

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In any event, the petitioner admits having been informed about the impugned order and the circular by 27^th September, 2012. Indeed, by that date, the vessel carrying coal from Indonesia had already sailed on 25^th September, 2012 and the vessel carrying coal from South Africa sailed the same date. That, however, gave the petitioner adequate time to make alternate arrangement.

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Mr. Sardessai submitted that the nature of the defects referred to in the impugned notice indicated “petty problems/ petty defects”. Even assuming he is right, these “petty problems/petty defects” have resulted in very serious consequences on the environment. Further, assuming these are “petty problems and petty defects” capable of an early solution/remedial measures, respondent No.1 would be expected to implement the same within the time stipulated in the impugned notice i.e. by about 9^th /10^th of this month (October). The petitioner's vessels are expected to reach only on 6^th and 10^th October, 2012 respectively.

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Mr. Sardessai relied upon an ad-interim order dated 27^th September, 2012, passed by us in the case of Shraddha Ispat Private Limited and others. vs. The Board of Trustees of Mormugao Port Trust and another (WP No.680/2012). We must in fairness to the petitioner deal with this order where some relief was granted.

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11(A). In Shraddha Ispat Private Limited and others, we

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emphasized more than once that it was in view of the exceptional circumstances of that case that we entertained the prayer for ad interim reliefs. We in fact recorded the statement on behalf of the Board of Trustees of Mormugao Port Trust - respondent No.1 in that case also that the vessels of the petitioner in the present matter were expected to arrive on 4^th and 10^th October, 2012 and made it clear that the order was only due to the exceptional facts in that case and because the petitioners therein had been presented almost with a fait accompli at the last moment.

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The facts of the present case are entirely different from the facts of that case which were there.

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The petitioners had entered into an agreement for

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purchase of 8000 MTs of coal on 10^th September, 2012. On 17^th September, 2012, the petitioners nominated a vessel and intimated respondent No.1 of the same stating the expected date of arrival to be 24^th September, 2012. The petitioners completed all the formalities, including filing the bill of entry and customs formalities. On 24^th September, 2012, respondent No.1 gave the petitioners permissions for berthing the vessel. The vessel was to commence the unloading of coal at 6 a.m. on 26^th September, 2012. The vessel entered the first respondent's port at 18:25 hours on 25^th September, 2012. It was on the same day that the impugned order dated 24^th September, 2012 was served by respondent No.2 on respondent No.1.

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It is, clear, therefore, that there were several distinguishing factors of material importance. Firstly, the quantity of coal in that case was only 8000 MTs, as against the aggregate quantity of 1,00,000 MTs in the present case. Secondly, in that case, the vessel had entered the port on 25^th September, 2012. The impugned order was served by respondent No.2 upon respondent No.1 on the same day i.e. 25^th September, 2012, albeit a few hours earlier. The petitioners therein were, therefore, faced with a fait accompli. It was not even possible

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for the petitioners to make alternate arrangements. In the present case, the petitioner knew about the impugned order on 26^th September, 2012 i.e. before the second ship sailed. In any event, the petitioner, admittedly, came to know about the impugned order on 27^th September, 2012. It could have mitigated its loss, if any. It took a chance by waiting till the last moment and approached this court only about two days before the first vessel was to arrive.

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Added to this, Mr. Nadkarni, learned Counsel appearing on behalf of respondent No.1 stated that in any event, there is no place to stack the coal in view of the orders passed prohibiting the removal/transport of the coal presently lying in its stockyard.

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Thus, in any event, it will not be possible for the petitioner to unload the coal at berth Nos. 10 and 11 of respondent No.1.

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In the circumstances, the writ petition is dismissed.

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S.J. VAZIFDAR, J.

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U.V. BAKRE, J.

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ssm.

M/S B.M.M. Ispat Ltd., Duly Authorized Officer Mr. K. G. Vijapur v. the Board of Trustees of the Mormugao Port Trust through Its Chairman/Secretary and Anr.

Case brief

What is this about?

What did the court decide?

M/S B.M.M. Ispat Ltd., Duly Authorized Officer Mr. K. G. Vijapur v. the Board of Trustees of the Mormugao Port Trust through Its Chairman/Secretary and Anr.

Case brief

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What did the court decide?

What the court decided

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