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SCA/5246/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5246 of
2010
=========================================================
RELIANCE
INDUSTRIES LTD(RIL) & 1 - Petitioner(s)
Versus
UNION
OF INDIA & 2 - Respondent(s)
=========================================================
Appearance
:
MR
KS NANAVATI, SR COUNSEL FOR NANAVATI ASSOCIATES
for
Petitioner(s) : 1 - 2.
MR PS CHAMPANERI for Respondent(s) :
1,
RULE SERVED BY DS for Respondent(s) : 2 - 3.
MR RAKESH GUPTA
WITH MR ABHISHEK MEHTA FOR M/S TRIVEDI & GUPTA for Respondent(s)
: 2 - 3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 24/11/2010
ORAL
ORDER
The
petition was admitted by order dated 29.4.2010. Ad interim relief in
terms of 18(D) was also granted till the returnable date of the
interim relief. Such interim relief has continued from time to time.
Today the issue of confirmation/vacation of interim relief was
argued before me by the learned advocates for both the sides.
Petitioner
no.1 M/s. Reliance Industries Ltd(“RIL” for short)
receives natural gas from respondent no.2 GAIL (India) Ltd. Petition
pertains to transportation charges levied by GAIL from RIL for
supplying such natural gas. It is the case of the petitioners that
such levy is unauthorised, against the Government of India Gas
pricing specifications, is opposed to Article 14 of the
Constitution. It is also the case of the petitioners that previously
another consumer IPCL had approached this Court challenging such
levy. Learned Single Judge in case of Indian Petrochemicals
Corpn. Ltd and other v. Union of India in Special Civil
Application No. 4887/2006 vide order dated 19.9.2006 allowed the
petition, quashed the levy, directed refund of the transportation
charges already collected. It is also the case of the petitioners
that decision of the Learned Single Judge was challenged in appeal
before the Division Bench. Letters Patent Appeal No.1622/2006
however came to be dismissed by judgement dated 17.6.2008. On such
basis, petition has been filed.
Para.18(D)
of the petition in terms of which interim relief has been granted
reads as follows:
“(D)
Pending the hearing and final disposal of the present petition, your
Lordship may be pleased to direct the Respondent No.2 and No.3 its
officers, servants and agents to continue to supply gas without
recovering transmission charges.”
By
virtue of said directions therefore, petitioners would receive gas
from GAIL without paying transportation charges for such
consumption. It is this interim relief which the petitioners request
to be confirmed. Opponents stoutly oppose such a prayer.
Heavy
reliance is placed on the decision of the Learned Single Judge as
well as Division Bench in case of IPCL contending that such levy has
been declared illegal by the High Court. It is also contended that
Government of India Pricing Policy does not permit any additional
charges such as transportation charges to be recovered by GAIL.
Though the petitioner had in previous agreements with GAIL agreed to
pay such charges, it is contended that the petitioners were coerced
into signing such an agreement and in absence of any other supplier
of gas, the petitioners had no choice but to agree to such terms. In
any case, there is no estoppal against law nor can there be waiver
of fundamental rights. It was contended that interim relief which is
granted as far back as in April 2010 be continued till the final
disposal of the petition. It is further contended that the RIL has
laid down its own pipeline for carrying the gas from the delivery
point till its factory therefore, no transportation charges can be
recovered.
On
the other hand, on behalf of GAIL, it is contended that facts in
the present case are vitally different from those involved in case
of IPCL. Apex Court has issued notice and granted stay against
refund in the said case. It was pointed out that the gas is carried
from GGS III station to GPC Gandhar by pipelines laid down and
maintained by the GAIL. First 10.6 km pipeline has 18″
diameter, remaining 4.5 km is divided into two pipelines of 24″
and 14″ diameter. It is from GPC Gandhar that RIL lifts gas
through its own pipelines. Transportation charges are only for
transporting gas from GGS III to GPC Gandhar and not beyond the said
point. It was also contended that in agreements between the parties,
RIL had agreed to pay such charges. He submitted that there are
other suppliers of the gas also.
At
this stage tackling only question of interim relief, I prima facie
find that :
1) In
two separate agreements entered into between the parties in the year
2000 and 2008, RIL had agreed to pay the above transportation
charges. In particular, agreement of the year 2008 was entered into
when the proceedings in case of IPCL were already concluded by the
High Court. Judgement of IPCL case was available. Despite which
without any protest, petitioners agreed to pay such charges.
2) From
the year 2000 till 2010, when the present petition was filed, no
objection was raised on behalf of RIL to such charges being levied
by GAIL. Petitioners have for nearly 10 years paid transportation
charges under agreement between the parties without any protest.
3) Though
it is contended on behalf of the petitioners that gas is transported
at its own cost through pipeline installed and maintained by the
petitioners, respondents suggest that such carriage by RIL is only
from GPC Gandhar station and from GGS III to GPC Gandhar, gas is
being carried by GAIL through its pipeline installed and maintained
by GAIL. Prima facie, therefore, on facts, case of IPCL may stand on
a different footing, wherein conclusion of the Learned Single Judge
as upheld by the Division Bench was that consumer was transporting
the gas through its own pipelines. It was in this background that
the Learned Single Judge held that for such transportation no
charges can be levied by the gas company. Whether for transporting
the gas from GGS II to GPC Gandhar, GAIL can recover charges from
the petitioner is question which requires a closure look and
detailed scrutiny. However, when the petitioners had been paying
such charges for nearly 10 years before filing of the petition and
had agreed in two separate agreements between the petitioner and
GAIL to pay such charges, question is whether such levy should be
suspended by way of interim relief which would amount to, at this
stage, substantially allowing this prayer of the petitioner finally.
This can also not be stated to be a situation that if no interim
relief is granted, irreparable loss to the petitioner which cannot
be compensated in terms of money would be caused.
Considering
the above aspects of the matter, interim relief granted earlier is
vacated. However, with clarification and direction that for
consumption of the gas during the period when interim relief was
operating in favour of the petitioners, no transportation charges
shall be demanded from the petitioners till final disposal of the
petition.
(Akil
Kureshi,J.)
(raghu)
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