{"id":258710,"date":"2002-07-24T00:00:00","date_gmt":"2002-07-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sesa-shipping-limited-and-sesa-goa-vs-the-board-of-trustees-of-the-port-of-on-24-july-2002"},"modified":"2016-09-06T22:27:43","modified_gmt":"2016-09-06T16:57:43","slug":"sesa-shipping-limited-and-sesa-goa-vs-the-board-of-trustees-of-the-port-of-on-24-july-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sesa-shipping-limited-and-sesa-goa-vs-the-board-of-trustees-of-the-port-of-on-24-july-2002","title":{"rendered":"Sesa Shipping Limited And Sesa Goa … vs The Board Of Trustees Of The Port Of … on 24 July, 2002"},"content":{"rendered":"
Bombay High Court<\/div>\n
Sesa Shipping Limited And Sesa Goa … vs The Board Of Trustees Of The Port Of … on 24 July, 2002<\/div>\n
Author: V Daga<\/div>\n
Bench: V Daga, P Hardas<\/div>\n

JUDGMENT<\/p>\n

V.C. Daga, J<\/a>.\n<\/p>\n

1. A stillborn contract, the terms of which proposed
\nby respondent No.1, the Board of Trustees of the Port of
\nMormugao (the Board for short), is a subject matter of
\nchallenge in this petition at the instance of the
\npetitioner, who is one of the exporters engaged, inter
\nalia, in export of iron ore. The question sought to be
\nraised, in our view, is no longer res integra. However,
\nmuch debate is raised on this question which needs
\ndetermination before going to the merits of challenges
\nset up in the petition.\n<\/p>\n

FACTS IN BRIEF <\/p>\n

2. The facts giving rise to the present petition
\nin, nutshell, are as under :\n<\/p>\n

The First petitioner is a fully owned subsidiary
\ncompany of the second petitioner, incorporated under the
\nCompanies Act<\/a>, 1956. Respondent No.1 set up a Mechanical
\nOre Handling Plant, a facility in the Port of Mormugao
\nfor loading of iron ore for export at Berth No.9. The
\nsaid facility is offered to the iron ore exporters. The
\niron ore exporters are obliged to load the vessels
\nnominated by the foreign buyers at the said facility.
\nHowever, as the iron ore exports through the Port of
\nMormugao increased continuously over the years, the said
\nfacility was found to be inadequate for the needs of the
\nexporters. As a result of the low loading rate at the
\nfacility,the vessels nominated by the foreign buyers
\ncould not be loaded quickly at the said facility because
\nof certain limitations imposed over the size of loading
\nwhich resulted in causing heavy losses to the exporters
\nby way of demurrage. The iron ore exporters from Goa,
\ntherefore, could not compete in the iron ore
\ninternational market.\n<\/p>\n

3. The aforesaid circumstances compelled
\nsome of the iron ore exporters from Goa to acquire ocean
\ngoing vessels equipped with sophisticated gear for a
\nquicker loading of iron ore in mid-stream for the barges.
\nSuch vessels are known as transhippers. Loading of
\niron ore at the said facility by the transhippers is
\ncontrolled and regulated by the regulations known as
\n“Mormugao Port (Shipment of Ore and Pellets from the
\nMechanical Ore Handling Plant at Berth No.9 and related
\nmatters) Regulations, 1979” (“Berth No.9 Regulations” for
\nshort).\n<\/p>\n

4. The transhippers which are operating in the
\nPort of Mormugao and its environs, are :- “Gosalia
\nProspect”, owned by M\/s Salgaonkar Engineers Pvt. Ltd.,;
\n“Swati Rani”, owned by M\/s. V.M. Salgaocar and Brothers
\nLtd.; “Priyamvada” owned by M\/s. V.S. Dempo and Co.
\nLtd., and “Maratha Deep<\/a>” owned by M\/s. Chowgule and Co.
\nLtd., of course, with the permission of the Ministry of
\nCommerce, Government of India, New Delhi.\n<\/p>\n

5. The petitioners brought into India and
\ncommenced using in Port of Mormugao and its environs, the
\ntranshipper known as “M.V. Orissa” with the permission
\nof the Central Government under Letter dated 16.9.1991
\nissued by the Ministry of Commerce, Govt. of India, New
\nDelhi, copy of the said letter with the terms and
\nconditions incorporated therein is on record.\n<\/p>\n

6. The said transhipper, after its import,
\nstarted operating in the Port of Mormugao as per terms
\nand conditions imposed by the Central Government. By
\nletter dated 10.2.1995, the petitioners sought respondent
\nNo.1s advice on the formalities to be entered into for
\noperation of the said transhipper “M.V. Orissa”. By
\nletter dated 13.6.1995, the first respondent informed the
\nsecond petitioners that it would have to enter into an
\nagreement with first respondent for a period of five
\nyears, subject to the revision thereafter and pay the
\nstipulated rates as envisaged in the Government of
\nIndias letter dated 16.9.1991.\n<\/p>\n

7. The petitioners, by letter dated 11.12.1995,
\nrequested the first respondent to forward copy of the
\ndraft agreement. Under letter dated 13.12.1995, first
\nrespondent submitted a draft agreement to be executed by
\nthe petitioners in their favour for operating transhipper
\nM.V. Orissa. By letter dated 15.2.1996, the first
\npetitioner not being satisfied made a representation to
\nthe first respondent against the conditions sought to be
\nimposed upon the operations of the the said transhipper
\nM.V. Orissa contending, inter alia, that the said
\nconditions are ultra vires, contrary to law, illegal,
\narbitrary and discriminatory and requested the first
\nrespondent to send a revised draft agreement to first
\npetitioner in conformity with law. First respondent,
\nBoard replied to the said letter on 2.3.1996 rejecting
\nthe petitioners objections to the conditions of the
\ndraft agreement and called upon the petitioners to
\nexecute the agreement according to their draft submitted
\nby the Board. The first respondent, Board stated that
\nthe impugned conditions merely incorporated the
\nconditions of the Government of Indias letter dated
\n16.9.1991 under which the import and operation of the
\ntranshipper was allowed. Respondent No.1 refused to
\nwithdraw the said conditions from the said draft
\nagreement; which ultimately, resulted in invoking writ
\njurisdiction of this Court under Article 226<\/a> of the
\nConstitution of India to challenge the said draft
\nagreement and the terms and conditions proposed by the
\nBoard.\n<\/p>\n

8. The petitioners contend that the conditions
\nimposed in the draft agreement on the operation of
\ntranshipper M.V. Orissa are not similar to the
\nconditions imposed by the first respondent on the other
\ntranshippers in the port. The petitioners further
\ncontend that no service is being rendered by the first
\nrespondent so as to enable them to claim, levy and
\ncollect the special charges from the petitioners. The
\npetitioners, in nutshell, objected to the terms and
\nconditions proposed by respondent No.1. The petitioners
\nare seeking twin writs, a writ of certiorari to quash
\ncertain terms and conditions sought to be imposed by
\nrespondent No.1 for operating their transhipper known as
\n“M.V. Orissa” and a declaratory writ of mandamus to
\nwithdraw or cancel and not to interfere with the use of
\nthat transhipper and not to impose any special charges on
\nit.\n<\/p>\n

9. The petitioners during the pendency of the
\npetition, amended their petition on 6.3.1996 and
\nintroduced a challenge to the conditions imposed by
\nGovernment of India vide its letter dated 16.9.1991 on
\nthe operation of the transhipper M.V. Orissa and also
\nsought a declaration of invalidity thereof with a further
\nrelief of declaration that the petitioners are entitled
\nto operate transhipper, M.V Orissa as transhipper in the
\nPort of Mormugao and its environs without complying with
\nthe said conditions.\n<\/p>\n

10. On being noticed, respondents appeared and
\nobjected to the interim relief which, ultimately, came to
\nbe rejected and the petitioners were permitted to enter
\ninto the agreement without prejudice to their rights.
\nAccordingly, the petitioners executed agreement on
\n6.3.1996 in favour of respondent No.1 and the same has
\nbeen renewed from 7.3.2001 by an Agreement dated
\n8.2.2001. Incidently, the said agreements are also
\nsubject matter of challenge in the present petition.\n<\/p>\n

THE ARGUMENTS <\/p>\n

11. At the outset, Shri V.B. Nadkarni, learned
\nSenior Counsel appearing for respondent No.1, Board
\npressed into service, a Judgment of the Supreme Court
\ndelivered in the case of The Board of Trustees of Port of
\nMormugao vs. V.M. Salgaoncar and Brothers Pvt. Ltd.,
\nCivil Appeal No<\/a>.1472\/1986 decided on 11.9.1996
\n(hereinafter, referred to as “the Board of Trustees of
\nPort of Mormugao”, for short) and contended that the
\ndispute sought to be raised in the petition is no longer
\nres integra, in view of the law laid down by the Supreme
\nCourt. He also placed reliance on the common Judgment
\ndelivered by the Division Bench of this Court in V.M.
\nSalgaoncar and Brothers Pvt. Ltd., and V.S. Dempo & Co.
\nPvt. Ltd<\/a>. vs. The Board of Trustees of Marmugao in the
\nWrit Petition Nos.187\/1982 and 209\/1982 decided on 18th,
\n20th & 23rd December, 1985 (unreported) to the extent it
\nnegatived the contentions of the petitioners in those
\ncases and upheld various contentions of the Board and
\nfurther contended that the adverse findings recorded in
\nthe said Judgment of the Division Bench having been set
\naside by the Supreme Court in the case of The Board of
\nTrustees of Port of Mormugao (referred supra), the
\npresent petition needs no consideration and the petition
\ncan be disposed of without going into the merits of the
\ndispute sought to be raised in the petition.\n<\/p>\n

12. Per contra, Mr. S.K. Kakodkar, learned
\nSenior Counsel appearing for the petitioners submits that
\nthe said Judgment of the Supreme Court cannot be read as
\na precedent for want of discussion and findings based on
\nreasons. He submits that a decision which is not
\nexpressed or founded on reasons and does not proceed on
\nconsideration of issues involved, cannot be deemed to be
\na law declared under Article 141<\/a> of the Constitution so
\nas to have binding effect as is contemplated by the said
\nArticle. He further submits that the questions sought to
\nbe raised in the present petition were neither raised or
\nargued, nor discussed by the Supreme Court after
\npondering over the issues in depth, as such, the said
\nJudgment sought to be relied upon by the respondent No.1
\ncannot have a binding precedent. He further submits that
\nit is well settled that a precedent is an authority only
\nfor what it actually decides and not for what may
\nremotely or even logically follows from it, as such in
\nhis submission, ratio of the said decision cannot be put
\nin service to construe the provisions of Section 46<\/a> of
\nthe Major Port Trusts Act, 1963 (the Act for short).
\nHe placed reliance on Rajpur Ruda Meha v. State of
\nGujarat<\/a>, ; M\/s. Goodyear India
\nLtd., v. State of Haryana and another<\/a>, and State of U.P. and another v. Synthetics and
\nChemicals Ltd., and another<\/a>, in
\nsupport of his submission.\n<\/p>\n

13. In rejoinder, learned Counsel appearing for
\nrespondent No.1 submitted that where the language used is
\nunmistakable, the logic at play is irresistible, the
\nconclusion reached is inescapable, the application of the
\nlaw is expounded, then it is not open for the High Court
\nto brush aside the law laid down by the Supreme Court.
\nIn his submission, no Judge in India, except a larger
\nBench of the Supreme Court, without a departure from
\njudicial discipline, can whittle down, or be unbound by
\nthe ratio thereof. He further submits that it is
\nimpermissible for the High Court to overrule the decision
\nof Supreme Court on the ground that said Court laid down
\nthe legal position without considering any other point.
\nIt is not only a matter of judicial discipline for the
\nHigh Courts in India, but it is the mandate of the
\nConstitution as provided in Article 141.<\/a> The law
\ndeclared by the Supreme Court is binding on all courts
\nwithin the territory of India. He further submits that
\nin this Country, the High Court cannot question
\ncorrectness of the Supreme Court even though the point
\nsought before the High Court was not specifically
\nconsidered by the Supreme Court, if consideration thereof
\ncan be spelt out with some certainty. He placed reliance
\non the Judgment of the Supreme Court in cases of Fuzlunbi
\nv. K.Khader Vali and another<\/a>, ;\n<\/p>\n

Anil Kumar Neotia v. Union of India<\/a>, ; and Suganthi Suresh Kumar v. Jagdeeshan<\/a>, in support of his submission.\n<\/p>\n

14. In the above backdrop, the issue arises as
\nto whether the Judgment of the Supreme Court in the case
\nof The Board of Trustees of Port of Mormugao v.
\nV.M.Salgaonkar<\/a> (supra), can be said to be the Judgment
\nanswering the test of Article 141<\/a> of the Constitution and
\nis thus binding on this Court.\n<\/p>\n

15. Let us examine the above issue on the basis
\nof text of the above Judgment of the Supreme Court. If
\none turns to the said Judgment, it opens with the
\nfollowing words:\n<\/p>\n

“As had been indicated yesterday that these
\nmatters would end up in a settlement, we need
\nto leave an imprint behind about the powers of
\nthe Board of Trustees of Port of Mormugao (the
\nBoard) in relations to the transhipper owned
\nby the respondents”.\n<\/p>\n

The above particular opening sentence unequivocally
\ndemonstrates that the Supreme Court could have disposed
\nof the Civil Appeal on the basis of the compromise and\/or
\nsettlement between the parties. However, the Supreme
\nCourt felt a need to leave an imprint behind about the
\npowers of the Board of Trustees of the Port of Mormugao
\nin relation to the transhipper owned by the respondents.
\nTherefore, the Judgment specifically deals with the
\npowers of the Board and lays down the law with respect to
\nthe powers thereof so as to avoid any cloud on the powers
\nof the Board which was to some extent created earlier by
\none Judgment of the then Judicial Commissioner of Goa in
\nthe case of Chowgule & Co. Pvt. Ltd., v. The Board of
\nTrustees of the Port of Mormugao<\/a>, A.I.R.1974 Goa, Daman
\nand Diu 10 and by Division Bench Judgment of this Court
\nin the case of V.M. Salgaonkar and Brothers Pvt. Ltd.
\n& V.S. Dempo & Co.Pvt<\/a>. Ltd. v. The Board of Trustees
\nof the Port of Marmugao<\/a>, (referred supra) which was
\nimpugned before the Supreme Court in the very appeal. In
\nthe above backdrop, in our opinion, it is not open to the
\npetitioners to contend that the Supreme Court was not
\ndealing with any specific question or issue.\n<\/p>\n

16. As we proceed further to read the Judgment
\nof the Supreme Court, in the next sentence, we find that
\nthe Supreme Court has considered and interpreted Section
\n2(p)<\/a> which defines “pier”. The Apex Court said thus :
\n “Undeniably the Transhipper is a pier as
\ndefined in Section 2(p)<\/a> read with the
\nExplanation added thereto, in The Major Port
\nTrusts Act<\/a>, 1963 (the Act). It could be
\nallowed to be brought in the Port area and put
\nto use as a pier only on the previous
\npermission in writing of the Board and subject
\nto such conditions, if any, as the Board may
\nspecify. It is removable too at the instance
\nof the Board.”\n<\/p>\n

Reading of the above sentences unquestionably demonstrate
\nthat legal provision was taken into account and the same
\nwas considered and interpreted by the Supreme Court, so
\nas to hold that the transhipper is a pier and further
\nheld that it could be allowed to be brought in the Port
\narea and put to use with the previous permission in
\nwriting of the Board, and subject to such further
\nconditions, if any, prescribed by the Board and it could
\nbe removed. As we further proceed to read the Judgment
\nof the Supreme Court, it specifically refers to Section
\n46<\/a> of the Act, after quoting the said Section and after
\ninterpretation thereof, records a positive finding
\nobserving that the powers of the Board to permit and
\nimpose conditions and the power to cause removal thereof
\nare self-contained in the said section. As we further
\nproceed to read the Judgment of the Supreme Court, it
\ngives a clear-cut indication to a finding reading as “In
\nthe correspondence between the parties and the Central
\nGovernment, starting from the Letter of Intent ending up
\nwith the Letter of Consent, the figures of those special
\ncharges were nowhere mentioned, as seemingly the said
\nfigures were to be decided by due course by the Board”.
\nThis indicates the unequivocal finding by the Supreme
\nCourt that it was well within the province of the Board
\nto consider and determine the figure of special charges
\ntaking into account several factors and that is how the
\nabsolute authority of the Board in this behalf has been
\nrecognized by the Supreme Court. The Supreme Court
\nnoticed the findings recorded by the Division Bench of
\nthis Court in the Judgment which was impugned before it
\ni.e. the common Judgment delivered in the case of M\/s.
\nV.M.Salgaonkar & Bros. Pvt. Ltd., and criticizing those
\nfindings Supreme Court has recorded a specific finding
\nreading as under :\n<\/p>\n

“The High Court order, in our view, impinged
\non the powers of the Board vested under
\nSection 46<\/a> as well as the terms of
\nconsent\/contract. It being a matter covered
\nby the statutory provision as also the
\ncontract, should have guided the High Court to
\nnot cause any interference thereto and its
\nurge to bring forth legitimacy to the special
\ncharges, from under the other provisions of
\nthe Act, was an exercise which, in our view,
\nwas erroneous. To repeat, we say that Section
\n46<\/a> was the solitary provision which was
\nattracted in the case. When the special
\ncharges as asked by the Board, were not found
\nto be exorbitant or unconscionable, there was
\nno cause for the High Court to have issued a
\nwrit in favour of the respondents.”\n<\/p>\n

Reading of the aforesaid para would show that the Supreme
\nCourt unequivocally held and laid down that Section 46<\/a>
\nwas a solitary provision which was attracted in the case
\nand then the fault was also found with the findings
\nrecorded by the Division Bench on the merits of the two
\nconditions which were struck down by the Division Bench
\nholding it to be ultra vires in the Judgment which were
\nimpugned before Supreme Court in the case of M\/s. V.M.
\nSalgaonkar & Bros. Pvt. Ltd. (referred supra).\n<\/p>\n

17. The Supreme Court concluded its Judgment
\nsaying, “All the same, we are not required to go into
\nelaboration, as the parties at this stage have placed
\nbefore us a Deed of Settlement.” The deed of settlement
\nwas taken on record. In our opinion, in order to give
\nbinding force to its Judgment, the Supreme Court further
\nadded one line and said that on the basis of what they
\nhad said earlier, as well as on the basis of the consent
\nterms, the appeal was allowed and the impugned Judgment
\nof the High Court was set aside and ordered that the
\nterms of the settlement to govern the relationship
\nbetween the parties. Therefore, it is clear from the
\nJudgment of the Supreme Court that the Division Bench
\nJudgment of this Court in the case of M\/s. V.M.
\nSalgaonkar & Bros. Pvt. Ltd. (referred supra) to the
\nextent it was against the Board, came to be set aside,
\nsettlement reached by the parties was taken on record,
\nthe power of the Board was recognized and the Judgment of
\nthe Division Bench to the extent it was appealed against,
\ncame to be substituted with the Judgment of the Supreme
\nCourt. It can thus be inferred clearly that the terms of
\nsettlement were found to be in consonance with the view
\ntaken by the Supreme Court. It recognised the power of
\nthe Board as such the settlement was allowed to be taken
\non record. Accordingly, the appeal filed by the Board
\ncame to be allowed and the Special Leave Petition
\nchallenging the Judgment of the Division Bench to the
\nextent it was against the petitioners in that case (the
\nrespondents before the Supreme Court) came to be
\ndismissed.\n<\/p>\n

18. Having considered the above Judgment of the
\nSupreme Court from all angles and having seen the sweep
\nand dissensions thereof in the light of the provision
\npressed into service, arguments advanced and the findings
\nrecorded, in our opinion, by no stretch of imagination,
\nit can be said to be a Judgment of the Supreme Court is
\nbased on no discussion or without dealing with the
\nquestion raised. At the same time, it also cannot be
\nsaid that the question of the power of the Board was
\nneither raised nor argued or discussed by the Supreme
\nCourt. As a matter of fact, the said Judgment of the
\nSupreme Court gives a full picture of the rival
\nsubmissions advanced, the full dressed interpretation of
\nSection 46<\/a> of the Act and categorical findings
\nrecognizing the power of the Board. Taking overall view
\nof the above Judgment of the Supreme Court and having
\ntaken a fresh look to the composite findings recorded
\ntherein, it would be absolutely clear that the language
\nused in the Judgment is unmistakable, the logic at play
\nis irresistible, the conclusion reached is inescapable,
\nthe application of the law as expounded by the Supreme
\nCourt is absolutely clear. Therefore, in our opinion, so
\nfar as the Judgment of the Supreme Court is concerned, it
\nclearly lays down the law with respect to interpretation
\nof Section 46<\/a> of the Act and the power of the Board to
\nimpose terms and conditions on the operation of the
\ntranshipper. We do not think that the said question can
\nbe allowed to be re-agitated afresh before this Court.
\nIn this view of the matter, we refuse to go into the
\npower of the Board sought to be re-agitated by the
\npetitioners and respectfully following the Judgment of
\nthe Supreme Court hold that the Board is fully competent
\nto impose terms and conditions while entering into the
\nagreement with the respondent No.1 in the light of the
\nterms and conditions put by the Central Government while
\ngranting permission to the petitioners to acquire the
\ntranshipper in question.\n<\/p>\n

19. With the aforesaid findings, we propose to
\nturn to the next challenge set up by the petitioners
\nchallenging the terms and conditions suggested by the
\nBoard in the form of the draft agreement forwarded to the
\npetitioner. The challenge set up by the petitioners to
\nthe various conditions are more or less same as were set
\nup in the case of M\/s. V.M. Salgaonkar & Bros. Pvt.
\nLtd., (referred supra) and can be catalogued as under :\n<\/p>\n

(1) Levy of any special charges proposed in the
\ndraft agreement is not authorised by law;\n<\/p>\n

(2) The transhipper, in question, cannot be
\nbrought by the side of the MDHP at berth No.9 which means
\nthat the Port of Trust is unable to render any services
\nto such ships;\n<\/p>\n

(3) The new special charges sought to be levied
\nare discriminatory;\n<\/p>\n

(4) The conditions which the Port Trust can
\nimpose on the transhippers under the provisions are
\nmerely for the purpose of regulation of traffic in the
\nport area or for the purpose of prevention of any breach
\nof rules and regulations under which the traffic in the
\nport area has to be controlled and managed by the Port
\nTrust;\n<\/p>\n

(5) The conditions imposed by the draft agreement
\non the operation of transhipper M.V. Orissa are not
\nsimilar conditions.\n<\/p>\n

As already pointed out by us, the aforesaid identical
\nchallenges were also set up in the earlier petitions
\nfiled at the instance of M\/s.V.M. Salgaoncar and Bros.
\nPvt. Ltd., and M\/s. V.S. Dempo & Co. Pvt. Ltd.
\n(referred supra) before the Division Bench of this Court.
\nAll the above challenges were turned down in those
\npetitions, except with respect to the two conditions,
\nviz., (i) the condition imposing special charge of
\nRs.5.40 paise per tonne and Rs.2.70 paise per tonne for
\nprimary loading and up topping and, (ii) the condition
\nempowering the Board to call for financial information in
\nconnection with the operation and maintenance of the
\nvessel. These findings adverse to the Board were set
\naside by the Supreme Court and these conditions were held
\nto be legal and valid. The Division Bench had upheld all
\nthe contentions of the Board, barring two, referred to
\nhereinabove, which were subsequently upheld by the
\nSupreme Court. We, therefore, do not think it necessary
\nto go into these challenges in view of the Judgments of
\nthe Division Bench and the Supreme Court, referred to
\nhereinabove. In our opinion, the challenges set up in
\nthe petition to the terms of the draft agreement on the
\nabove catalogued grounds for the above reasons, must
\nfail.\n<\/p>\n

20. The petitioners pressed into service one
\nmore virgin challenge on the touchstone of Article 14<\/a> of
\nthe Constitution to the terms and conditions of the draft
\nagreement. The petitioners state that the conditions
\nimposed by the draft agreement on the operation of the
\ntranshipper M.V. Orissa are not similar to the
\nconditions imposed by the 1st respondent on other
\ntranshippers in the Port and, therefore, the Board has
\npractical discrimination. At this stage, we may point
\nout that the terms of the agreement between other
\ntranshippers and respondent No.1 are not on record. In
\nabsence of the advantage of having look the said terms,
\nwe are of the opinion that we cannot go into this
\nquestion and consequently cannot investigate this
\nchallenge. Terms of those conditions have not been
\nextracted in the petition. The petitioners could not
\neven develop their submissions in this behalf for want of
\nadequate material on record. We, at this stage, cannot
\nresist ourselves from referring to the observations of
\nthe Supreme Court in the case of Bharat Singh and others
\nv. State of Haryana and ors<\/a>., ,
\nreading as under :\n<\/p>\n

” When a point which is ostensibly a point of
\nlaw is required to be substantiated by facts,
\nthe party raising the point, if he is writ
\npetitioner, must plead and prove such facts by
\nevidence which must appear from the writ
\npetition and if he is the respondent, from the
\ncounter-affidavit. If the facts are not
\npleaded or the evidence in support of such
\nfacts is not annexed to the writ petition or
\nto the counter-affidavit, as the case may be,
\nthe court will not entertain the point. There
\nis a distinction between a pleading under the
\nCivil P.C. and a writ petition of a
\ncounter-affidavit. While in a pleading that
\nis, a plaint or a written statement, the facts
\nand not evidence are required to be pleaded,
\nin a writ petition or in the counter-affidavit
\nnot only the facts but also the evidence in
\nproof of such facts have to be pleaded and
\nannexed to it.”\n<\/p>\n

We, for the reasons stated, refuse to go into this
\nchallenge set up by the petitioners.\n<\/p>\n

21. The petitioners, in this petition,
\nchallenged each and every condition of the draft
\nagreement proposed by respondent No.1, Board. Basic
\nchallenge centres around the fact that the Board has
\neither no authority to put such conditions or the
\nproposed conditions are discriminatory, arbitrary and
\nviolative of Article 14<\/a> of the Constitution. The defence
\ncoming from the Board by way of justification to the said
\nconditions is that the said conditions are nothing, but
\nreproduction of the conditions imposed by the Central
\nGovernment in their letter dated 16.9.1991 while granting
\npermission to the petitioners, permitting them to acquire
\ntranshipper vessel M.V. Orissa to operate at Mormugao
\nHarbour. The Board is claiming source of power to impose
\nthis condition based on Section 46<\/a>, and justifying
\nreasonableness thereof on the basis of terms and
\nconditions imposed by the Central Government vide their
\nletter dated 16.9.1991; wherein the Central Government
\nitself has recognized the power of the Board and provided
\nguidelines as to how and in what mode and manner the said
\nconditions should be imposed on the petitioners.\n<\/p>\n

22. Learned Counsel appearing for respondent
\nNo.1 also tried to borrow support from the Judgment of
\nthe Division Bench of this Court in the case of M\/s.
\nV.M. Salgaonkar & Bros. Pvt. Ltd., (referred supra)
\nwherein the similar conditions put by the Board were
\njustified in those writ petitions on the basis of the
\nconditions imposed by the Central Government while
\ngranting permission to acquire the transhipper and the
\nsame were found to be legal and valid in absence of any
\nchallenge to the conditions imposed by the Central
\nGovernment at the instance of the petitioners in those
\npetitions.\n<\/p>\n

23. In order to get over the defence set up by
\nthe Board in their counter-reply, the petitioners amended
\ntheir petition and raised several challenges to the terms
\nand conditions imposed by the Central Government vide
\nletter dated 16.9.1991 and sought a declaratory mandamus
\nto declare the said condition as ultra vires, illegal,
\nand arbitrary.\n<\/p>\n

24. At this juncture, it will not be out place
\nto mention that the Central Government granted permission
\nto the petitioners vide their letter dated 16.9.1991 for
\nacquisition of transhipper Vessel to operate at Mormugao
\nHarbour. The petitioners acted upon the said terms and
\nconditions by acquiring the transhipper and put it in
\noperation without there being any protest or objection to
\nthe terms and conditions imposed by the Central
\nGovernment at any point of time till the date of
\namendment i.e. 6.3.1996. Thus, right from September,
\n1991 till June 1996, at no point of time these conditions
\nwere challenged by the petitioners. No approach or
\ndemand was ever made to the Central Government either to
\nwithdraw, cancel and\/or modify the said terms and
\nconditions. In absence of any demand for justice, no
\nMandamus can be asked for, is settled principle of law.
\nAs a general rule, Order will not be granted unless the
\nparty complained of has known what it was, he was
\nrequired to do, so that he had the means of considering
\nwhether or not he should comply with and it must be shown
\nby evidence that there was distinct demand of what which
\nthe party is seeking the Mandamus desires to enforce, and
\nthe demand was met by a refusal. In State of Haryana &
\nanother v. Chanan Mal<\/a> etc., , it
\nwas held that he who applies for a Writ of Mandamus,
\nshould in compliance with the well known rule of
\npractice, ordinarily, call upon the authority concerned
\nto discharge its legal obligations and to show that it
\nhas refused or neglected to carry it out with a
\nreasonable time before applying to a Court for such an
\norder. In this case, the second prayer is a prayer for a
\nWrit of Mandamus. No explanation has been offered for
\nthis delayed challenge to the said terms and conditions
\nimposed by the Central Government. Under these
\ncircumstances and in the absence of any prior demand for
\neither withdrawal, cancellation or modification of the
\nsaid terms and conditions, put by the Central Government
\nvide their letter dated 16.9.1991, we do not propose to
\nentertain this challenge to the terms and conditions put
\nby the Central Government. We, therefore, turn down any
\nsuch challenge to the said conditions and reject the
\nprayer made to this effect.\n<\/p>\n

25. In M\/s. Tilokchand Motichand and ors. v.
\nH.B. Munshi<\/a>, it was observed by
\nthe Supreme Court that the party claiming fundamental
\nrights must move the Court before third party rights come
\ninto existence. The action of courts cannot harm
\ninnocent parties, if their rights emerge by reason of
\ndelay on the part of the person moving the Court. In the
\ncase of State of M.P. and others etc.etc. v. Nandlal
\nJaiswal and others , the Supreme
\nCourt refused to entertain the petition as there was
\nconsiderable delay in filing the writ petition and in the
\nintervening period, respondents had acquired land,
\nconstructed distillery buildings, purchased plant and
\nmachinery and spent considerable time, money and energy
\ntowards setting up the distillery unit, the delay was
\nheld to be fatal. Similarly, in State of Orissa v. Sri
\nPyarimohan Samantaray and others<\/a> , it was held that the petition was liable to be
\ndismissed on the ground of inordinate, unexplained delay.
\nConsidering all these catena of decisions and that the
\nright which is created in favour of the Board to demand
\nspecial charges from the petitioners and in absence of
\nany challenge to the terms and conditions imposed by the
\nCentral Government while granting permission in favour of
\nthe petitioners to acquire transhipper well within time
\nand in the absence of any explanation whatsoever
\nexplaining the delay in challenging the terms and
\nconditions imposed by the Central Government, we refuse
\nto entertain any challenge to the said terms and
\nconditions imposed by the Central Government.\n<\/p>\n

26. Having turned town the challenges to the
\nterms and conditions incorporated in the letter of the
\nCentral Government dated 16.9.1991, we feel that the
\nrespondents were perfectly justified in exercising their
\npower to put the conditions in the draft agreement on the
\nbasis of Section 46<\/a> of the Act, in the light of the terms
\nand conditions imposed by the Central Government, which
\nwere and are binding upon the petitioners. A party who
\nacquiesces to the terms and conditions and takes part or
\nact upon it without any protest cannot afterwards be
\nallowed to attack it; if the same are put against him.
\nIf that be so, the challenge to each and every terms and
\nconditions incorporated in the draft agreement must fail.
\nThe petition is, thus, liable to be dismissed being
\ndevoid of any substance and accordingly, we dismiss the
\nsame.\n<\/p>\n

27. In the result, the petition is dismissed.
\nRule is discharged with no order as to costs.\n<\/p>\n

V.C. Daga, J.\n<\/p>\n

P.V. Hardas, J.<\/p>\n","protected":false},"excerpt":{"rendered":"

Bombay High Court Sesa Shipping Limited And Sesa Goa … vs The Board Of Trustees Of The Port Of … on 24 July, 2002 Author: V Daga Bench: V Daga, P Hardas JUDGMENT V.C. Daga, J. 1. A stillborn contract, the terms of which proposed by respondent No.1, the Board of Trustees of the Port […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-258710","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nSesa Shipping Limited And Sesa Goa ... vs The Board Of Trustees Of The Port Of ... on 24 July, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sesa-shipping-limited-and-sesa-goa-vs-the-board-of-trustees-of-the-port-of-on-24-july-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sesa Shipping Limited And Sesa Goa ... vs The Board Of Trustees Of The Port Of ... on 24 July, 2002 - 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