M/S ARL INFRATECH LET AND ANR. v. UNION OF INDIA AND ORS.

1. This hearing has been done through hybrid mode.

2. The present petition was, initially, filed in the High Court of Gujarat at Ahmedabad as Special Civil Application No. 9046/2020 titled ‘M/s ARL Infratech Limited & Promod Jain vs Union of India & Ors.’ The case of the Petitioner is that the ground rent, demurrage and other detention charges ought not to be charged as the same would be contrary to the various Government advisories issued during the Covid-19 pandemic. The prayers sought in the petition are as under: “(A) YOUR LORDSHIPS may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction holding the action of the concerned Respondents in charging the ground rent, demurrage and container detention charges, as illegal and contrary to Government advisories. (B) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the Respondents Nos.[5] to 8 to return / restitute to the Petitioner Company amounts charged and recovered towards ground rent, demurrage and container detention charges being Rs.53,77,971/along with interest @ 12% as the same have been charged contrary to the directions and advisories of the Central Government. (C)Pending hearing and final disposal of this petition.

YOUR LORDSHIPS may be pleased to direct the Respondents Nos.[5] to 8 to forthwith payback / return to the Petitioner Company amounts charged and recovered by them as ground rent, demurrage and container detention charges, etc. on such conditions as this Hon'ble Court deems fit.

(D) Any other / further relief/s as may deem fit in the facts of the case may kindly be granted.” A transfer petition was preferred by the Respondent no.4 before the Supreme Court. In the said petition, viz., Transfer Petition (Civil) No. 1173 of 2020, titled ‘Container Freight Station Association of India Vs. M/s. ARL Infratech Limited & Ors’, the Supreme Court held as under: “1.This transfer petition has been filed by the petitioner under Section 25 of the Code of Civil Procedure, 1908 seeking transfer of Special Civil Application No 9046 of 2020 titled "M/s ARL Infratech Limited vs Union of India & Others" from the High Court of Gujarat at Ahmedabad to the High Court of Delhi at New Delhi.

2. We have heard learned counsel for the parties.

3. Counsel appearing on behalf of the respondents state that the respondents have no objection to the transfer of these proceedings.

4. Having regard to the interests of justice, we are of the view that an order for the transfer of the proceedings is warranted. We direct that Special Civil Application No 9046 of 2020 titled "M/s ARL Infratech Limited vs Union of India & Others" be transferred from the High Court of Gujarat at Ahmedabad to the High Court of Delhi at New Delhi.

5. The Transfer Petition is accordingly disposed of.

6. The transferor court shall forthwith transmit the record of the aforesaid case to the transferee court.

7. Pending application(s), if any, shall stand disposed of.”

3. Pursuant to the said order, the writ petition has been listed before this Court.

4. None appears for the Petitioners. Ld. Counsel for the Respondent Nos. 4 to 8- Mr. Udit Jain submits that the issues raised in this petition relate to various charges which were collected by the container freight stations (‘CFSs’) during the pandemic period. As per the Petitioners, the said issue is now squarely covered by a judgment rendered by the Division Bench of this Court in W.P.(C) 3029/2020 titled ‘Polytech Trade Foundation v. Union of India & Ors.’ [10th August 2021].

5. In the said case along with other connected cases, the ld. Division Bench of this Court has dealt with identical issues and has arrived at its conclusions qua each of the aspects. The prayer for not charging ground rent, demurrage and detention charges has already been rejected. Thus, no recovery thereof would be liable to be directed.

6. The operative portions of the said judgement are extracted below- “5.The issue in a “nutshell”: The petitioners, in these petitions, seek a writ of mandamus from this Court, under Article 226 of the Constitution of India, in a situation involving, as we would note hereafter, contractual rights between private individuals and the regulation, thereof, by statutory/Governmental authorities in public interest. The permissible extent, if at all, of such regulation, falls for consideration. The petitioners seek across-the-board amnesty from paying penal charges to CFSs, ICDs and Shipping lines, during the entire period of lockdown enforced by the Government consequent on the COVID-19 pandemic. Inability to move or transport their export/import goods, during the said period, is pleaded as the justification. It is a matter of record that some importers did, in fact, clear their consignments even during this period. Assessment of the extent to which any particular importer or exporter was impacted would, by its very nature, involve, inherently disputed questions of fact. The petitioners’ stand is that, irrespective of the individual facts of each case, orders and circulars issued by the MOS,DGS and CBIC entitle all importers and exporters to amnesty as sought, across the board. Whether they do, or not, is required to be determined by us in these petitions.... …44.There is another, more empirical, reason, why we are disinclined to grant of benefit to the petitioners. The ICDs and CFSs have come on record to state that many importers did actually have the goods released, even during the period of lockdown, at times availing the discounts provided by the ICDs and CFSs. This indicates to our mind, that there was no inherent impossibility, even during the lockdown period, in securing the release of the imported goods. The fact that some importers did manage to secure such release indicates that, if other importers were unable to do so, the reason for such inability would have to be assessed on a case- to- case basis. Apart from the fact that the ICDs and CFSs themselves had, in place, a mechanism for such aggrieved importers and exporters to approach them, this exercise cannot be conducted by a writ court, exercising jurisdiction under Article 226 of the Constitution of India. Each case would depend on its own facts, and disputed issues of fact are bound to arise.Even for this reason, it is not possible for this court to accede to the petitioners’ request to, across the board, direct waiver or remission of the penal charges, levied by ICDs and CFSs for continuing to store imported or exported goods beyond the permissible “free period”… …45.Yet another submission, advanced by learned Senior Counsel for the CFSs and ICDs, which finds favour with us, is the fact that, were CFSs, ICDs and shipping lines to be directed not to charge any penal charges from the importers and the exporters, for the period during which the goods continued to remain stored in their premises during lockdown, it would be completely disincentivise the importers and exporters from seeking release of the consignments. Any such direction would also be intrinsically opposed to public interest, as it would result in clogging of the ICDs and CFSs by importers and exporters who, without having to pay any penal charges, would continue to enjoy the facility of storing their goods. This, in turn, would be contrary to the very objective of establishing CFSs, which was to unclog the ports.

46. These are all issues involving disputed questions of fact, not amenable to adjudication under Article 226 of the Constitution of India. It is not open to the Courtjust as it was not open to the executive authorities-to approach the matter solely from the point of view of the importers or exporters, unmindful of the difficulties which were faced by the ICDs and CFSs during the lockdown, and the constraints under which they operated. Equity inherently inheres in the exercise of jurisdiction under Article 226, and we are not persuaded to hold that the equities of the present case are entirely in favour of the petitioner importers/exporters, and to the prejudice of the respondent ICDs/CFSs/shipping lines, as would warrant our inference under Article 226 of the Constitution of India. Conclusion: