1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2634 OF 2004 The Board of Trustees of the Port of Mumbai. ...Petitioner vs. 1.Tariff Authority for Major Ports & another. ...Respondents. ---- Mr.E.P.Bharucha, Sr.Advocate with B.H.Patel i/b. M/s.Little & Co., for Petitioner. Mr.Janak Dwarkadas, Sr. Advocate with Yash Kapadia i/b. S.V.Srivastava & Co., for Respondents. AND WRIT PETITION NO.2414 OF 1999 Ispat Industries Ltd. ...Petitioner vs. The Board of Trustees of the Port of Mumbai. ...Respondent --- Mr.Janak Dwarkadas, Sr. Advocate with Yash Kapadia i/b. S.V.Srivastava & Co., for Petitioner. 2 Mr.E.P.Bharucha, Sr.Advocate with B.H.Patel i/b. M/s.Mulla & Mulla & CBC, for Respondent. AND WRIT PETITION NO.2539 OF 1999 The Board of Trustees of the Port of Mumbai. ...Petitioner vs. 1.Tariff Authority for Major Ports & others. ...Respondents. ---- Mr.E.P.Bharucha, Sr.Advocate with B.H.Patel i/b. Mulla & Mulla & C.B.C., for Petitioner. Mr.Janak Dwarkadas, Sr. Advocate with Yash Kapadia i/b. S.V.Srivastava & Co., for Respondents. CORAM: D.K.DESHMUKH & R.G.KETKAR, JJ. DATED: 10th August,2009. P.C.:- 1. Parties to all these petitions are same and therefore, they can be conveniently disposed of by common order. 3 2. Before the Authority constituted under Section 47A of the Major Port Trusts Act, a proposal was moved by the Port Trust of Bombay for levying lighterage charges. On behalf of Ispat Industries Ltd. an objection was raised to the competence of the Port Trust to levy lighterage charges. The Objection submitted by Ispat Industries Ltd. came to be registered as Case no.TAMP/5/97-BPT and the proposal submitted by the Mumbai Port Trust was registered as case no.TAMP/2/97-MBPT. Both these cases were disposed by two separate orders passed on the same date viz. 2.6.1999. The Authority by that order held that the Port Trust is not competent to levy lighterage charges, but it also held that the rate at which the Port Trust had proposed to charge lighterage charges i.e. Rs.15/- per metric ton was justified. Being aggrieved by the decision of the Authority that the Port Trust is not competent to levy lighterage charges, writ petition no.1516 of 2000 has been filed in this Court by the Port Trust. In that petition, challenge is to the rejection of the proposal by the Authority that was submitted by the Port Trust for 4 levying lighterage charges. The Port Trust has also filed Writ Petition no.2539 of 1999 challenging the order of the Authority upholding the objection submitted by Ispat Industries Ltd. Ispat Industries Ltd. has filed Writ petition no.2414 of 1999 challenging the observations in the order of the Authority that the rate of Rs.15/- per metric ton was justified and also seeking return of money paid by them to the Port Trust because now the Authority has held that the Port Trust cannot levy lighterage charges. 3. Writ Petition no.1516 of 2000 was decided by the Division Bench of this Court by order dated 8.1.2002. This Court set aside the order passed by the Tariff Authority holding that the Port Trust has no authority to levy lighterage charges and remitted the matter back to the Authority with a direction to give personal hearing to the petitioner. After remand, the Authority passed order dated 17.3.2003 reiterating its decision that the Port Trust has no authority to levy lighterage charges. Writ petition no.2634 of 2004 has 5 been filed by the Port Trust challenging the order dated 17.3.2003. 4. A short submission made by the learned Counsel appearing for the Port Trust in Writ Petition no.2634 of 2004 is that by order dated 8.1.2002 the Division Bench has directed the Tariff Authority as constituted under the Act to reconsider the petitioner proposal and give opportunity of personal hearing to the petitioner. The learned Counsel submits that however, the opportunity of personal hearing which was directed to be given, by this Court, was given only by the Chairman, and two members of the Authority who were admittedly in the Office were not present at the time of personal hearing. According to the learned Counsel, therefore, the order passed by the Chairman which is impugned in Writ Petition no. 2634 of 2004 has been made in violation of the direction issued by this Court. He also submits that under Section 48 of the Major Port Trusts Act power to fix and modify the tariff is vested in the Authority. The Authority under Act consists of Chairman and two 6 members. According to the learned Counsel, therefore, before rejecting the proposal or before upholding any objection to the proposal, the Authority under the Act is obliged to give an opportunity of hearing to the parties, and if an opportunity of hearing is given only by the Chairman who was one of the members, it will be in violation of principles of natural justice. 5. We have heard the learned counsel appearing for Ispat Industries Ltd. He do not dispute that the Authority consists of Chairman and two members. He, however, relied on the Regulation 19 of the Regulations framed by the Authority which permits the Authority to delegate its powers to the Chairman and/or a member or to the two members for processing of a case. 6. We have perused the record. So far as the order impugned in Writ Petition no.2634 of 2004 is concerned, that order dated 17.3.2003 is clearly in breach of the direction issued by this Court by order dated 8.1.2002. The operative part of the direction 7 reads as under:- We direct the Tariff Authority as constituted under the Act to reconsider the petitioners proposal and pass appropriate order in accordance with law, after giving opportunity of personal hearing to the Petitioners. Thus, this Court had directed the Tariff Authority as constituted under the Act to reconsider the proposal and to give an opportunity of personal hearing to the petitioner. Admittedly, the opportunity of personal hearing to the petitioner was not given by the Authority but only by its Chairman. In our opinion, therefore, as the order has been made clearly in violation of the direction issued by this Court which is binding on all the parties to the petition, the order dated 17.3.2003 has to be set aside. In our opinion, in terms of that order, the Authority as constituted under the Act viz. the Authority consisting of Chairman and two members was obliged to give personal hearing to the petitioner before making the order. The order impugned is, therefore, liable to 8 be set aside. 7. So far as the reliance placed by the learned Counsel appearing for Ispat Industries Ltd. on the regulations framed by the Port Trust is concerned, even if it is assumed that the Authority has power to delegate some of its functions to the Chairman, the provision will not authorise the Chairman to give personal hearing alone when the matter is to be decided by the entire Authority. 8. Now so far as the order which is challenged in Writ Petition no.2539 of 1999, upholding the objection raised by the Ispat Industries Ltd. is concerned, in our opinion, the objection raised by the Ispat Industries Ltd. results in rejection of the proposal of the Port Trust. Therefore, as we propose to direct the Authority to consider the proposal submitted by the Port Trust afresh, in our opinion, the order upholding the objection raised by the Ispat Industries Ltd. has to be set aside, because if that order remain intact, the Authority will not be in a 9 position to consider the proposal submitted by the Port Trust with open mind. Writ petition no.2539 of 1999 also therefore, succeeds and is allowed. Order dated 2.6.1999 in case no.TAMP/5/97-BPT is set aside, and that case is also remitted back to the Authority to be decided afresh alongwith the case no.TAMP/2/97- MBPT. 9. So far as the Writ Petition no.2414 of 1999 is concerned, it is filed by the Ispat Industries Ltd. As by our order passed in Writ Petition no.2539 of 1999 and the order passed in Writ Petition no.2634 of 2004, we have set aside the orders passed in both the cases, no further order is required to be passed in this writ petition. Writ petition no.2414 of 1999 is therefore, disposed of. 10. The Authority is directed to consider both, the proposal submitted by the Port Trust and the objection raised by the Ispat Industries Ltd, in accordance with law, including the order passed by this Court and shall make fresh order thereon in 10 accordance with law, as expeditiously as possible, in any case within a period of three months from the date on which writ of this order is served on the Authority. During the pendency of the proceedings before the Authority, the interim order that is presently operating in these petitions shall continue to operate. The Authority may permit both the sides to submit additional material that they wish to produce. (D.K.DESHMUKH, J.) (R.G.KETKAR, J.)