Disposed

Thomas.N.J v. State of Kerala

Kerala HC12 Jun 2019WP(C)/810/2019

Case brief

AI extract

What is this about?

Petitioner, managing a coastal shipping company, challenged a demand for port dues, claiming a promised 75% rebate was not honored for the 'Great Sea Vembanad' ship. The court directed the petitioner to pay 50% of the demanded amount immediately, allowing a fresh representation to seek the full rebate thereafter.

What did the court decide?

Petitioner directed to pay 50% of the demanded amount within three weeks; liberty to represent for full rebate review within one month after hearing.

Thomas.N.J Vs State of Kerala — Public Procurement and Tenders | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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WEDNESDAY, THE 12TH DAY OF JUNE 2019 / 22ND JYAISHTA, 1941

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WP(C).No. 810 of 2019

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PETITIONER/S:

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THOMAS N.J., AGED 68 YEARS, S/O. JOSEPH THOMAS, MANAGING DIRECTOR, M/S. GREAT SEA SHIPPING COMPANY PVT. LTD., ORICOMPIL HOUSE, PARUTHICHUVADU, NETTOOR.P.O., KOCHI-40.

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BY ADV. SRI.MANU ROY

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RESPONDENT/S:

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1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, FISHERIES AND PORTS DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-695001.

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2 THE DIRECTOR OF PORTS, THE PORT DIRECTORATE, VALLATHURA, VALLAKADAVU.P.O., THIRUVANANTHAPURAM-695533.

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3 THE PORT OFFICER, KOLLAM PORT, PALLITHOTTAM, KOLLAM-691006.

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4 THE DISTRICT COLLECTOR, ERNAKULAM-682030.

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5 DEPUTY TAHSILDAR, KANAYANNUR TALUK, ERNAKULAM-682031.

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BY SMT. B. VINITHA, GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.810 of 2019

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JUDGMENT

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This writ petition is filed by the petitioner

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seeking direction to respondents 1 to 3 to provide 75% rebate to the ship of the petitioner 'Great Sea Vembanad' against the total port dues and charges as per the decision taken in the minutes of the meeting held on 04.03.2014 in the Chamber of the Minister for Ports, and for other related reliefs. Brief material facts for the disposal of the writ petition are as follows:

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Petitioner is the Managing Director of M/s. Great Sea Shipping Company Private Ltd., a company incorporated under the Indian Companies Act, 1956. Petitioner opted to buy a ship in order to facilitate transport through the coastal waters of India, since various offers were made by the State Government in the meeting conducted by the State Government viz., “Emerging Kerala” in the year 2012, and thereupon,

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petitioner availed a loan for purchasing River Sea Vessel. Accordingly, a River Sea Vessel (Type-IV)

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bearing official No.4069 was purchased. Even though the project was an excellent one, after the ship was purchased, due to various restrictions and technical hurdles in the Government Policy, the same could not be

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W.P.(C) No.810 of 2019

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utilized properly and sufficient support was not

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obtained from the Port Department of the State. It is also pointed out that, as per Ext.P1, various promises

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were made, which were not implemented by the State Government. Even though the ship is used for sail

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connecting various Ports, still it could not be run on a profit basis.

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While so, a new port was started at Kollam, and for making the inauguration of the Kollam Port, a grand festival was organized by the Ports Department, and as per the directions of the Department, the petitioner company had docked its ship at Kollam Port. In spite of the co-operation extended by the petitioner, the rebate offered by the State Government was not extended and 75% rebate on Port charges was never given. Therefore, according to the petitioner, due to the delay in the Government procedures, the ship could not ply and had to be docked at Kochi, causing huge monetary loss to the petitioner. Thereupon, petitioner has submitted Ext.P2 representation, which is pending consideration. However, Ext.P3 letter dated 26.02.2016 was issued by the 3^rd respondent, asking the petitioner to remit Rs.11,54,972/- towards Port dues and charges.

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W.P.(C) No.810 of 2019

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Case projected by the petitioner is that,

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details with respect to the quantification made towards Port charges were not provided to the petitioner, and it would appear that rebate as promised at the rate of 75% in total Port charges is not provided. Thereupon,

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a meeting was called for at the office of the 2^nd respondent, and it was decided to make a fresh proposal to the Government, evident from Ext.P5 minutes dated

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09.10.2018. Petitioner has also submitted a

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representation to the respondents, however, no action was initiated to redress the grievance of the petitioner. It is thus seeking appropriate directions and also to quash Exts.P3 and P7, the writ petition is filed.

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statement, refuting the allegations and contentions raised by the petitioner. It is admitted that, Coastal

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shipping project was a policy of the Government of

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Kerala and the Government officials have taken

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appropriate steps to implement the project on time. It is also stated that, apart from the petitioner, other companies are doing coastal shipping services in Kerala

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with their own ships. It is further stated that,

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“Great Sea Vembanad” owned by the company of the

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W.P.(C) No.810 of 2019

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petitioner arrived at Kollam Port on 22.02.2014 and

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started operation on the same day itself. That apart, predominantly it is submitted that, the discussion for giving rebate on port charges came only later, i.e., on 04.03.2014, however, no Government Order was issued

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regarding the rebate till date. In spite of nonissuance of orders, petitioner received the benefits of incentive for their operation till date, and the respondents are not responsible for any monetary loss sustained to the petitioner. The demand was raised to pay the amount of Rs.11,54,972/- towards Port dues and other charges, since the petitioner failed to remit the same on time.

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It is also stated that the 3^rd respondent has

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not given any assurance in writing to the petitioner for waiving the Port dues as part of rebate to the port charges. In spite of earnest efforts of the

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respondents, petitioner failed to pay the Port charges and petitioner was also served with Annexure-R3(a)

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itemized bills, however, in spite of all these, petitioner did not make the payment. That apart, a meeting was convened on 14.04.2015 at the Government

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Guest House, Ernakulam with the 2^nd respondent,

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petitioner and others, and the petitioner has agreed to

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W.P.(C) No.810 of 2019

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remit the dues in five instalments, evident from

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Annexure-R3(b) minutes of the meeting. Therefore, the action taken now against the petitioner to recover the

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amounts is in accordance with law.

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A reply affidavit is filed by the petitioner,

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reiterating the stand adopted in the writ petition.

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petitioner and the learned Government Pleader, and perused the pleadings and the documents on record.

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Learned counsel for the petitioner heavily relied upon Ext.P1 minutes of the meeting held in the

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presence of the Minister for Ports, wherein, certain decisions were taken with respect to rebates up to 75% of the total Port dues and charges to all vessels as an

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incentive for coastal shipping for five years of the project. The items of Port Dues coming under the incentive schemes were decided to be the following: (a) Pilotage; (b)Channel/inner anchorage fee; (c) Port Dues; (d) Berth Hire Charges; (e) Tug Hire Charges; (f)Crane Hire Charges; (g) Fork Lift/stacker charges; (h) Import and export dues; and (i) Labour. It was also decided that the rebate for the first year will be

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75% of all the port dues and charges in all the non major ports of Kerala, and it will be reviewed every

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W.P.(C) No.810 of 2019

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year depending on the volume handled and the cargo

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diverted from the other modes of transport to coastal shipping. There are certain other incentives also agreed to be provided. It is based on these decisions taken in the meeting, petitioner claims that the

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recovery sought for against the petitioner cannot be sustained.

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Anyhow, Annexure-R3(b) shows that a meeting was convened on 14.04.2015 in the presence of the Director of Ports, Kerala, in which, petitioner participated and has agreed to pay the outstanding dues in five instalments. It is also clear that, detailed break-up of figures were given to the petitioner and in spite of the promise made by the petitioner, amounts were not paid. However, petitioner has a case that, even going by the break-ups given, it is not clear as to whether the incentives were given to the petitioner.

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In that view of the matter, I think it is only appropriate that petitioner is provided with an opportunity to participate in a proceeding and explain his grievances to the statutory authority, however, it can only be on reasonable terms.

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In that view of the matter, petitioner is

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directed to pay 50% of the amount demanded as specified

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W.P.(C) No.810 of 2019

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above, within three weeks from the date of receipt of a

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copy of this judgment, and on payment, petitioner is at

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liberty to file a representation before the 2^nd respondent, who shall consider the same and take appropriate decision in accordance with law, and taking into account the benefits, if any, offered to the

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petitioner and other similarly placed persons, at the

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earliest, and at any rate, within a month from the date of receipt of representation from the petitioner, after

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providing an opportunity of hearing to the petitioner and any other interested persons. However, I make it

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clear that, if the petitioner is not complying with the directions contained above, then the respondents will

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be at liberty to proceed to recover the amounts in accordance with law.

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The writ petition is disposed of accordingly.

Sd/-

SHAJI P.CHALY

JUDGE

St/14.06.2019

W.P.(C) No.810 of 2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	COPY OF MINUTES OF THE MEETING DATED 04.3.2014.
EXHIBIT P2	COPY OF REPRESENTATION DATED 26.12.2017.
EXHIBIT P3	COPY OF LETTER DATED 26.2.2016.
EXHIBIT P4	COPY OF REPLY DATED 3.3.2016.
EXHIBIT P5	COPY OF MINUTES OF THE MEETING DATED 09.10.2018.
EXHIBIT P6	COPY OF REPRESENTATION DATED 4.7.2018.
EXHIBIT P7	COPY OF RR NOTICE DATED 7.12.2018.
RESPONDENTS' ANNEXURES:
ANNEXURE-R3(A)	TRUE COPIES OF THE BILLS FROM 14.08.2014 TO 12.12.2015.
ANNEXURE-R3(B)	TRUE COPY OF THE MINUTES OF THE MEETING DATED 14.04.2015.

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//TRUE COPY//

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P.S. TO JUDGE

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St/-

Thomas.N.J v. State of Kerala

Case brief

What is this about?

What did the court decide?

Thomas.N.J v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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