V.C. Daga, J.
1. A stillborn contract, the terms of which proposed
by respondent No.1, the Board of Trustees of the Port of
Mormugao (the Board for short), is a subject matter of
challenge in this petition at the instance of the
petitioner, who is one of the exporters engaged, inter
alia, in export of iron ore. The question sought to be
raised, in our view, is no longer res integra. However,
much debate is raised on this question which needs
determination before going to the merits of challenges
set up in the petition.
FACTS IN BRIEF
2. The facts giving rise to the present petition
in, nutshell, are as under :
The First petitioner is a fully owned subsidiary
company of the second petitioner, incorporated under the
Companies Act, 1956. Respondent No.1 set up a Mechanical
Ore Handling Plant, a facility in the Port of Mormugao
for loading of iron ore for export at Berth No.9. The
said facility is offered to the iron ore exporters. The
iron ore exporters are obliged to load the vessels
nominated by the foreign buyers at the said facility.
However, as the iron ore exports through the Port of
Mormugao increased continuously over the years, the said
facility was found to be inadequate for the needs of the
exporters. As a result of the low loading rate at the
facility,the vessels nominated by the foreign buyers
could not be loaded quickly at the said facility because
of certain limitations imposed over the size of loading
which resulted in causing heavy losses to the exporters
by way of demurrage. The iron ore exporters from Goa,
therefore, could not compete in the iron ore
international market.
3. The aforesaid circumstances compelled
some of the iron ore exporters from Goa to acquire ocean
going vessels equipped with sophisticated gear for a
quicker loading of iron ore in mid-stream for the barges.
Such vessels are known as transhippers. Loading of
iron ore at the said facility by the transhippers is
controlled and regulated by the regulations known as
“Mormugao Port (Shipment of Ore and Pellets from the
Mechanical Ore Handling Plant at Berth No.9 and related
matters) Regulations, 1979” (“Berth No.9 Regulations” for
short).
4. The transhippers which are operating in the
Port of Mormugao and its environs, are :- “Gosalia
Prospect”, owned by M/s Salgaonkar Engineers Pvt. Ltd.,;
“Swati Rani”, owned by M/s. V.M. Salgaocar and Brothers
Ltd.; “Priyamvada” owned by M/s. V.S. Dempo and Co.
Ltd., and “Maratha Deep” owned by M/s. Chowgule and Co.
Ltd., of course, with the permission of the Ministry of
Commerce, Government of India, New Delhi.
5. The petitioners brought into India and
commenced using in Port of Mormugao and its environs, the
transhipper known as “M.V. Orissa” with the permission
of the Central Government under Letter dated 16.9.1991
issued by the Ministry of Commerce, Govt. of India, New
Delhi, copy of the said letter with the terms and
conditions incorporated therein is on record.
6. The said transhipper, after its import,
started operating in the Port of Mormugao as per terms
and conditions imposed by the Central Government. By
letter dated 10.2.1995, the petitioners sought respondent
No.1s advice on the formalities to be entered into for
operation of the said transhipper “M.V. Orissa”. By
letter dated 13.6.1995, the first respondent informed the
second petitioners that it would have to enter into an
agreement with first respondent for a period of five
years, subject to the revision thereafter and pay the
stipulated rates as envisaged in the Government of
Indias letter dated 16.9.1991.
7. The petitioners, by letter dated 11.12.1995,
requested the first respondent to forward copy of the
draft agreement. Under letter dated 13.12.1995, first
respondent submitted a draft agreement to be executed by
the petitioners in their favour for operating transhipper
M.V. Orissa. By letter dated 15.2.1996, the first
petitioner not being satisfied made a representation to
the first respondent against the conditions sought to be
imposed upon the operations of the the said transhipper
M.V. Orissa contending, inter alia, that the said
conditions are ultra vires, contrary to law, illegal,
arbitrary and discriminatory and requested the first
respondent to send a revised draft agreement to first
petitioner in conformity with law. First respondent,
Board replied to the said letter on 2.3.1996 rejecting
the petitioners objections to the conditions of the
draft agreement and called upon the petitioners to
execute the agreement according to their draft submitted
by the Board. The first respondent, Board stated that
the impugned conditions merely incorporated the
conditions of the Government of Indias letter dated
16.9.1991 under which the import and operation of the
transhipper was allowed. Respondent No.1 refused to
withdraw the said conditions from the said draft
agreement; which ultimately, resulted in invoking writ
jurisdiction of this Court under Article 226 of the
Constitution of India to challenge the said draft
agreement and the terms and conditions proposed by the
Board.
8. The petitioners contend that the conditions
imposed in the draft agreement on the operation of
transhipper M.V. Orissa are not similar to the
conditions imposed by the first respondent on the other
transhippers in the port. The petitioners further
contend that no service is being rendered by the first
respondent so as to enable them to claim, levy and
collect the special charges from the petitioners. The
petitioners, in nutshell, objected to the terms and
conditions proposed by respondent No.1. The petitioners
are seeking twin writs, a writ of certiorari to quash
certain terms and conditions sought to be imposed by
respondent No.1 for operating their transhipper known as
“M.V. Orissa” and a declaratory writ of mandamus to
withdraw or cancel and not to interfere with the use of
that transhipper and not to impose any special charges on
it.
9. The petitioners during the pendency of the
petition, amended their petition on 6.3.1996 and
introduced a challenge to the conditions imposed by
Government of India vide its letter dated 16.9.1991 on
the operation of the transhipper M.V. Orissa and also
sought a declaration of invalidity thereof with a further
relief of declaration that the petitioners are entitled
to operate transhipper, M.V Orissa as transhipper in the
Port of Mormugao and its environs without complying with
the said conditions.
10. On being noticed, respondents appeared and
objected to the interim relief which, ultimately, came to
be rejected and the petitioners were permitted to enter
into the agreement without prejudice to their rights.
Accordingly, the petitioners executed agreement on
6.3.1996 in favour of respondent No.1 and the same has
been renewed from 7.3.2001 by an Agreement dated
8.2.2001. Incidently, the said agreements are also
subject matter of challenge in the present petition.
THE ARGUMENTS
11. At the outset, Shri V.B. Nadkarni, learned
Senior Counsel appearing for respondent No.1, Board
pressed into service, a Judgment of the Supreme Court
delivered in the case of The Board of Trustees of Port of
Mormugao vs. V.M. Salgaoncar and Brothers Pvt. Ltd.,
Civil Appeal No.1472/1986 decided on 11.9.1996
(hereinafter, referred to as “the Board of Trustees of
Port of Mormugao”, for short) and contended that the
dispute sought to be raised in the petition is no longer
res integra, in view of the law laid down by the Supreme
Court. He also placed reliance on the common Judgment
delivered by the Division Bench of this Court in V.M.
Salgaoncar and Brothers Pvt. Ltd., and V.S. Dempo & Co.
Pvt. Ltd. vs. The Board of Trustees of Marmugao in the
Writ Petition Nos.187/1982 and 209/1982 decided on 18th,
20th & 23rd December, 1985 (unreported) to the extent it
negatived the contentions of the petitioners in those
cases and upheld various contentions of the Board and
further contended that the adverse findings recorded in
the said Judgment of the Division Bench having been set
aside by the Supreme Court in the case of The Board of
Trustees of Port of Mormugao (referred supra), the
present petition needs no consideration and the petition
can be disposed of without going into the merits of the
dispute sought to be raised in the petition.
12. Per contra, Mr. S.K. Kakodkar, learned
Senior Counsel appearing for the petitioners submits that
the said Judgment of the Supreme Court cannot be read as
a precedent for want of discussion and findings based on
reasons. He submits that a decision which is not
expressed or founded on reasons and does not proceed on
consideration of issues involved, cannot be deemed to be
a law declared under Article 141 of the Constitution so
as to have binding effect as is contemplated by the said
Article. He further submits that the questions sought to
be raised in the present petition were neither raised or
argued, nor discussed by the Supreme Court after
pondering over the issues in depth, as such, the said
Judgment sought to be relied upon by the respondent No.1
cannot have a binding precedent. He further submits that
it is well settled that a precedent is an authority only
for what it actually decides and not for what may
remotely or even logically follows from it, as such in
his submission, ratio of the said decision cannot be put
in service to construe the provisions of Section 46 of
the Major Port Trusts Act, 1963 (the Act for short).
He placed reliance on Rajpur Ruda Meha v. State of
Gujarat, ; M/s. Goodyear India
Ltd., v. State of Haryana and another, and State of U.P. and another v. Synthetics and
Chemicals Ltd., and another, in
support of his submission.
13. In rejoinder, learned Counsel appearing for
respondent No.1 submitted that where the language used is
unmistakable, the logic at play is irresistible, the
conclusion reached is inescapable, the application of the
law is expounded, then it is not open for the High Court
to brush aside the law laid down by the Supreme Court.
In his submission, no Judge in India, except a larger
Bench of the Supreme Court, without a departure from
judicial discipline, can whittle down, or be unbound by
the ratio thereof. He further submits that it is
impermissible for the High Court to overrule the decision
of Supreme Court on the ground that said Court laid down
the legal position without considering any other point.
It is not only a matter of judicial discipline for the
High Courts in India, but it is the mandate of the
Constitution as provided in Article 141. The law
declared by the Supreme Court is binding on all courts
within the territory of India. He further submits that
in this Country, the High Court cannot question
correctness of the Supreme Court even though the point
sought before the High Court was not specifically
considered by the Supreme Court, if consideration thereof
can be spelt out with some certainty. He placed reliance
on the Judgment of the Supreme Court in cases of Fuzlunbi
v. K.Khader Vali and another, ;
Anil Kumar Neotia v. Union of India, ; and Suganthi Suresh Kumar v. Jagdeeshan, in support of his submission.
14. In the above backdrop, the issue arises as
to whether the Judgment of the Supreme Court in the case
of The Board of Trustees of Port of Mormugao v.
V.M.Salgaonkar (supra), can be said to be the Judgment
answering the test of Article 141 of the Constitution and
is thus binding on this Court.
15. Let us examine the above issue on the basis
of text of the above Judgment of the Supreme Court. If
one turns to the said Judgment, it opens with the
following words:
“As had been indicated yesterday that these
matters would end up in a settlement, we need
to leave an imprint behind about the powers of
the Board of Trustees of Port of Mormugao (the
Board) in relations to the transhipper owned
by the respondents”.
The above particular opening sentence unequivocally
demonstrates that the Supreme Court could have disposed
of the Civil Appeal on the basis of the compromise and/or
settlement between the parties. However, the Supreme
Court felt a need to leave an imprint behind about the
powers of the Board of Trustees of the Port of Mormugao
in relation to the transhipper owned by the respondents.
Therefore, the Judgment specifically deals with the
powers of the Board and lays down the law with respect to
the powers thereof so as to avoid any cloud on the powers
of the Board which was to some extent created earlier by
one Judgment of the then Judicial Commissioner of Goa in
the case of Chowgule & Co. Pvt. Ltd., v. The Board of
Trustees of the Port of Mormugao, A.I.R.1974 Goa, Daman
and Diu 10 and by Division Bench Judgment of this Court
in the case of V.M. Salgaonkar and Brothers Pvt. Ltd.
& V.S. Dempo & Co.Pvt. Ltd. v. The Board of Trustees
of the Port of Marmugao, (referred supra) which was
impugned before the Supreme Court in the very appeal. In
the above backdrop, in our opinion, it is not open to the
petitioners to contend that the Supreme Court was not
dealing with any specific question or issue.
16. As we proceed further to read the Judgment
of the Supreme Court, in the next sentence, we find that
the Supreme Court has considered and interpreted Section
2(p) which defines “pier”. The Apex Court said thus :
“Undeniably the Transhipper is a pier as
defined in Section 2(p) read with the
Explanation added thereto, in The Major Port
Trusts Act, 1963 (the Act). It could be
allowed to be brought in the Port area and put
to use as a pier only on the previous
permission in writing of the Board and subject
to such conditions, if any, as the Board may
specify. It is removable too at the instance
of the Board.”
Reading of the above sentences unquestionably demonstrate
that legal provision was taken into account and the same
was considered and interpreted by the Supreme Court, so
as to hold that the transhipper is a pier and further
held that it could be allowed to be brought in the Port
area and put to use with the previous permission in
writing of the Board, and subject to such further
conditions, if any, prescribed by the Board and it could
be removed. As we further proceed to read the Judgment
of the Supreme Court, it specifically refers to Section
46 of the Act, after quoting the said Section and after
interpretation thereof, records a positive finding
observing that the powers of the Board to permit and
impose conditions and the power to cause removal thereof
are self-contained in the said section. As we further
proceed to read the Judgment of the Supreme Court, it
gives a clear-cut indication to a finding reading as “In
the correspondence between the parties and the Central
Government, starting from the Letter of Intent ending up
with the Letter of Consent, the figures of those special
charges were nowhere mentioned, as seemingly the said
figures were to be decided by due course by the Board”.
This indicates the unequivocal finding by the Supreme
Court that it was well within the province of the Board
to consider and determine the figure of special charges
taking into account several factors and that is how the
absolute authority of the Board in this behalf has been
recognized by the Supreme Court. The Supreme Court
noticed the findings recorded by the Division Bench of
this Court in the Judgment which was impugned before it
i.e. the common Judgment delivered in the case of M/s.
V.M.Salgaonkar & Bros. Pvt. Ltd., and criticizing those
findings Supreme Court has recorded a specific finding
reading as under :
“The High Court order, in our view, impinged
on the powers of the Board vested under
Section 46 as well as the terms of
consent/contract. It being a matter covered
by the statutory provision as also the
contract, should have guided the High Court to
not cause any interference thereto and its
urge to bring forth legitimacy to the special
charges, from under the other provisions of
the Act, was an exercise which, in our view,
was erroneous. To repeat, we say that Section
46 was the solitary provision which was
attracted in the case. When the special
charges as asked by the Board, were not found
to be exorbitant or unconscionable, there was
no cause for the High Court to have issued a
writ in favour of the respondents.”
Reading of the aforesaid para would show that the Supreme
Court unequivocally held and laid down that Section 46
was a solitary provision which was attracted in the case
and then the fault was also found with the findings
recorded by the Division Bench on the merits of the two
conditions which were struck down by the Division Bench
holding it to be ultra vires in the Judgment which were
impugned before Supreme Court in the case of M/s. V.M.
Salgaonkar & Bros. Pvt. Ltd. (referred supra).
17. The Supreme Court concluded its Judgment
saying, “All the same, we are not required to go into
elaboration, as the parties at this stage have placed
before us a Deed of Settlement.” The deed of settlement
was taken on record. In our opinion, in order to give
binding force to its Judgment, the Supreme Court further
added one line and said that on the basis of what they
had said earlier, as well as on the basis of the consent
terms, the appeal was allowed and the impugned Judgment
of the High Court was set aside and ordered that the
terms of the settlement to govern the relationship
between the parties. Therefore, it is clear from the
Judgment of the Supreme Court that the Division Bench
Judgment of this Court in the case of M/s. V.M.
Salgaonkar & Bros. Pvt. Ltd. (referred supra) to the
extent it was against the Board, came to be set aside,
settlement reached by the parties was taken on record,
the power of the Board was recognized and the Judgment of
the Division Bench to the extent it was appealed against,
came to be substituted with the Judgment of the Supreme
Court. It can thus be inferred clearly that the terms of
settlement were found to be in consonance with the view
taken by the Supreme Court. It recognised the power of
the Board as such the settlement was allowed to be taken
on record. Accordingly, the appeal filed by the Board
came to be allowed and the Special Leave Petition
challenging the Judgment of the Division Bench to the
extent it was against the petitioners in that case (the
respondents before the Supreme Court) came to be
dismissed.
18. Having considered the above Judgment of the
Supreme Court from all angles and having seen the sweep
and dissensions thereof in the light of the provision
pressed into service, arguments advanced and the findings
recorded, in our opinion, by no stretch of imagination,
it can be said to be a Judgment of the Supreme Court is
based on no discussion or without dealing with the
question raised. At the same time, it also cannot be
said that the question of the power of the Board was
neither raised nor argued or discussed by the Supreme
Court. As a matter of fact, the said Judgment of the
Supreme Court gives a full picture of the rival
submissions advanced, the full dressed interpretation of
Section 46 of the Act and categorical findings
recognizing the power of the Board. Taking overall view
of the above Judgment of the Supreme Court and having
taken a fresh look to the composite findings recorded
therein, it would be absolutely clear that the language
used in the Judgment is unmistakable, the logic at play
is irresistible, the conclusion reached is inescapable,
the application of the law as expounded by the Supreme
Court is absolutely clear. Therefore, in our opinion, so
far as the Judgment of the Supreme Court is concerned, it
clearly lays down the law with respect to interpretation
of Section 46 of the Act and the power of the Board to
impose terms and conditions on the operation of the
transhipper. We do not think that the said question can
be allowed to be re-agitated afresh before this Court.
In this view of the matter, we refuse to go into the
power of the Board sought to be re-agitated by the
petitioners and respectfully following the Judgment of
the Supreme Court hold that the Board is fully competent
to impose terms and conditions while entering into the
agreement with the respondent No.1 in the light of the
terms and conditions put by the Central Government while
granting permission to the petitioners to acquire the
transhipper in question.
19. With the aforesaid findings, we propose to
turn to the next challenge set up by the petitioners
challenging the terms and conditions suggested by the
Board in the form of the draft agreement forwarded to the
petitioner. The challenge set up by the petitioners to
the various conditions are more or less same as were set
up in the case of M/s. V.M. Salgaonkar & Bros. Pvt.
Ltd., (referred supra) and can be catalogued as under :
(1) Levy of any special charges proposed in the
draft agreement is not authorised by law;
(2) The transhipper, in question, cannot be
brought by the side of the MDHP at berth No.9 which means
that the Port of Trust is unable to render any services
to such ships;
(3) The new special charges sought to be levied
are discriminatory;
(4) The conditions which the Port Trust can
impose on the transhippers under the provisions are
merely for the purpose of regulation of traffic in the
port area or for the purpose of prevention of any breach
of rules and regulations under which the traffic in the
port area has to be controlled and managed by the Port
Trust;
(5) The conditions imposed by the draft agreement
on the operation of transhipper M.V. Orissa are not
similar conditions.
As already pointed out by us, the aforesaid identical
challenges were also set up in the earlier petitions
filed at the instance of M/s.V.M. Salgaoncar and Bros.
Pvt. Ltd., and M/s. V.S. Dempo & Co. Pvt. Ltd.
(referred supra) before the Division Bench of this Court.
All the above challenges were turned down in those
petitions, except with respect to the two conditions,
viz., (i) the condition imposing special charge of
Rs.5.40 paise per tonne and Rs.2.70 paise per tonne for
primary loading and up topping and, (ii) the condition
empowering the Board to call for financial information in
connection with the operation and maintenance of the
vessel. These findings adverse to the Board were set
aside by the Supreme Court and these conditions were held
to be legal and valid. The Division Bench had upheld all
the contentions of the Board, barring two, referred to
hereinabove, which were subsequently upheld by the
Supreme Court. We, therefore, do not think it necessary
to go into these challenges in view of the Judgments of
the Division Bench and the Supreme Court, referred to
hereinabove. In our opinion, the challenges set up in
the petition to the terms of the draft agreement on the
above catalogued grounds for the above reasons, must
fail.
20. The petitioners pressed into service one
more virgin challenge on the touchstone of Article 14 of
the Constitution to the terms and conditions of the draft
agreement. The petitioners state that the conditions
imposed by the draft agreement on the operation of the
transhipper M.V. Orissa are not similar to the
conditions imposed by the 1st respondent on other
transhippers in the Port and, therefore, the Board has
practical discrimination. At this stage, we may point
out that the terms of the agreement between other
transhippers and respondent No.1 are not on record. In
absence of the advantage of having look the said terms,
we are of the opinion that we cannot go into this
question and consequently cannot investigate this
challenge. Terms of those conditions have not been
extracted in the petition. The petitioners could not
even develop their submissions in this behalf for want of
adequate material on record. We, at this stage, cannot
resist ourselves from referring to the observations of
the Supreme Court in the case of Bharat Singh and others
v. State of Haryana and ors., ,
reading as under :
” When a point which is ostensibly a point of
law is required to be substantiated by facts,
the party raising the point, if he is writ
petitioner, must plead and prove such facts by
evidence which must appear from the writ
petition and if he is the respondent, from the
counter-affidavit. If the facts are not
pleaded or the evidence in support of such
facts is not annexed to the writ petition or
to the counter-affidavit, as the case may be,
the court will not entertain the point. There
is a distinction between a pleading under the
Civil P.C. and a writ petition of a
counter-affidavit. While in a pleading that
is, a plaint or a written statement, the facts
and not evidence are required to be pleaded,
in a writ petition or in the counter-affidavit
not only the facts but also the evidence in
proof of such facts have to be pleaded and
annexed to it.”
We, for the reasons stated, refuse to go into this
challenge set up by the petitioners.
21. The petitioners, in this petition,
challenged each and every condition of the draft
agreement proposed by respondent No.1, Board. Basic
challenge centres around the fact that the Board has
either no authority to put such conditions or the
proposed conditions are discriminatory, arbitrary and
violative of Article 14 of the Constitution. The defence
coming from the Board by way of justification to the said
conditions is that the said conditions are nothing, but
reproduction of the conditions imposed by the Central
Government in their letter dated 16.9.1991 while granting
permission to the petitioners, permitting them to acquire
transhipper vessel M.V. Orissa to operate at Mormugao
Harbour. The Board is claiming source of power to impose
this condition based on Section 46, and justifying
reasonableness thereof on the basis of terms and
conditions imposed by the Central Government vide their
letter dated 16.9.1991; wherein the Central Government
itself has recognized the power of the Board and provided
guidelines as to how and in what mode and manner the said
conditions should be imposed on the petitioners.
22. Learned Counsel appearing for respondent
No.1 also tried to borrow support from the Judgment of
the Division Bench of this Court in the case of M/s.
V.M. Salgaonkar & Bros. Pvt. Ltd., (referred supra)
wherein the similar conditions put by the Board were
justified in those writ petitions on the basis of the
conditions imposed by the Central Government while
granting permission to acquire the transhipper and the
same were found to be legal and valid in absence of any
challenge to the conditions imposed by the Central
Government at the instance of the petitioners in those
petitions.
23. In order to get over the defence set up by
the Board in their counter-reply, the petitioners amended
their petition and raised several challenges to the terms
and conditions imposed by the Central Government vide
letter dated 16.9.1991 and sought a declaratory mandamus
to declare the said condition as ultra vires, illegal,
and arbitrary.
24. At this juncture, it will not be out place
to mention that the Central Government granted permission
to the petitioners vide their letter dated 16.9.1991 for
acquisition of transhipper Vessel to operate at Mormugao
Harbour. The petitioners acted upon the said terms and
conditions by acquiring the transhipper and put it in
operation without there being any protest or objection to
the terms and conditions imposed by the Central
Government at any point of time till the date of
amendment i.e. 6.3.1996. Thus, right from September,
1991 till June 1996, at no point of time these conditions
were challenged by the petitioners. No approach or
demand was ever made to the Central Government either to
withdraw, cancel and/or modify the said terms and
conditions. In absence of any demand for justice, no
Mandamus can be asked for, is settled principle of law.
As a general rule, Order will not be granted unless the
party complained of has known what it was, he was
required to do, so that he had the means of considering
whether or not he should comply with and it must be shown
by evidence that there was distinct demand of what which
the party is seeking the Mandamus desires to enforce, and
the demand was met by a refusal. In State of Haryana &
another v. Chanan Mal etc., , it
was held that he who applies for a Writ of Mandamus,
should in compliance with the well known rule of
practice, ordinarily, call upon the authority concerned
to discharge its legal obligations and to show that it
has refused or neglected to carry it out with a
reasonable time before applying to a Court for such an
order. In this case, the second prayer is a prayer for a
Writ of Mandamus. No explanation has been offered for
this delayed challenge to the said terms and conditions
imposed by the Central Government. Under these
circumstances and in the absence of any prior demand for
either withdrawal, cancellation or modification of the
said terms and conditions, put by the Central Government
vide their letter dated 16.9.1991, we do not propose to
entertain this challenge to the terms and conditions put
by the Central Government. We, therefore, turn down any
such challenge to the said conditions and reject the
prayer made to this effect.
25. In M/s. Tilokchand Motichand and ors. v.
H.B. Munshi, it was observed by
the Supreme Court that the party claiming fundamental
rights must move the Court before third party rights come
into existence. The action of courts cannot harm
innocent parties, if their rights emerge by reason of
delay on the part of the person moving the Court. In the
case of State of M.P. and others etc.etc. v. Nandlal
Jaiswal and others , the Supreme
Court refused to entertain the petition as there was
considerable delay in filing the writ petition and in the
intervening period, respondents had acquired land,
constructed distillery buildings, purchased plant and
machinery and spent considerable time, money and energy
towards setting up the distillery unit, the delay was
held to be fatal. Similarly, in State of Orissa v. Sri
Pyarimohan Samantaray and others , it was held that the petition was liable to be
dismissed on the ground of inordinate, unexplained delay.
Considering all these catena of decisions and that the
right which is created in favour of the Board to demand
special charges from the petitioners and in absence of
any challenge to the terms and conditions imposed by the
Central Government while granting permission in favour of
the petitioners to acquire transhipper well within time
and in the absence of any explanation whatsoever
explaining the delay in challenging the terms and
conditions imposed by the Central Government, we refuse
to entertain any challenge to the said terms and
conditions imposed by the Central Government.
26. Having turned town the challenges to the
terms and conditions incorporated in the letter of the
Central Government dated 16.9.1991, we feel that the
respondents were perfectly justified in exercising their
power to put the conditions in the draft agreement on the
basis of Section 46 of the Act, in the light of the terms
and conditions imposed by the Central Government, which
were and are binding upon the petitioners. A party who
acquiesces to the terms and conditions and takes part or
act upon it without any protest cannot afterwards be
allowed to attack it; if the same are put against him.
If that be so, the challenge to each and every terms and
conditions incorporated in the draft agreement must fail.
The petition is, thus, liable to be dismissed being
devoid of any substance and accordingly, we dismiss the
same.
27. In the result, the petition is dismissed.
Rule is discharged with no order as to costs.
V.C. Daga, J.
P.V. Hardas, J.
