9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (1) TMI 566 - HC - Indian LawsPipeline laying activity in the Dahej SEZ area for transportation of Natural Gas - Suppression of facts - SEZ Act - PNGRB Act - infrastructure facility within the meaning of Section 2(p) of the SEZ Act read with the definition of infrastructure under Rule 2(1)(s) of the Special Economic Zones Rules 2006 - Held that - it is not disputed that the respondent No.2 M/s.OPAL needed an additional supply of gas, which the petitioner had refused to book for transmission through its pipeline laid in the respondent No.3 SEZ, and therefore, the respondent No.1 had agreed to supply the additional quantity of gas to the respondent No.2 by laying 8 dia pipeline by Tap off from the existing M/s.GAIL DUPL. Such necessity of facilities or services of the respondent No.1 M/s.OPAL, which is one of the units set up in the DAL could not be said to be an infrastructure facility necessary or needed for the development of the respondent No.3 DSL, as contemplated in Section 2(p) read with Rule 2(1)(s) of the said Rules - the respondent No.1 and respondent No.2 were not required to take any approval from the Board of Approval under Section 9(d) of the said Act. Much was argued on whether there is any inconsistency between the SEZ Act and PNGRB Act, and whether the SEZ Act has an overriding effect over the PNGRB Act or not. It can not be gainsaid that in view of Section 51 of the SEZ Act, the provisions of the said Act would have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. The expression for the time being in force would not only include the existing legislations but would also include future legislations. The facilities or services sought to be provided by the respondent No.1 to the respondent No.2 being not the infrastructure facilities, the Court does not find any inconsistency between the provisions of the said two Acts. The issue whether Clause- 1(g) of Schedule J of the PNGRB Authorisation Regulations, 2008, as amended in 2016, is applicable to the respondent No.1 GAIL or not, also pales into insignificance, in view of the fact that requisite approvals have already been obtained by the respondent Nos.1 and 2 under the SEZ Act for the purpose of laying 8 dia pipeline in question. There is no provision contained in the SEZ Act, which grants exclusivity to any person, which otherwise would encourage monopolistic and restrictive trade practices, or which would run counter to and frustrate the very purpose and object of promoting competitive markets in the matter of petroleum, petroleum products and natural gas, as contained in the PNGRB Act. The petition being devoid of any merits and having been filed suppressing material facts and documents, deserves to be dismissed and is dismissed.
Issues Involved:
1. Maintainability of the Petition due to Alternative Remedy 2. Suppression of Material Facts by the Petitioner 3. Jurisdiction of Approval Committee under SEZ Act 4. Exclusivity Rights of the Petitioner under the Co-Developer Agreement 5. Consistency between SEZ Act and PNGRB Act Detailed Analysis: 1. Maintainability of the Petition due to Alternative Remedy: The respondents argued that the petitioner had alternative remedies available under Section 23 and Section 42 of the SEZ Act, and Section 24 of the PNGRB Act. The court noted that the designated courts under Section 23 of the SEZ Act were not yet established and the applicability of arbitration under Section 42 of the SEZ Act and Section 24 of the PNGRB Act was debatable. The court held that the existence of an alternative remedy does not bar a writ petition under Article 226 of the Constitution, especially when statutory powers and jurisdiction are challenged. 2. Suppression of Material Facts by the Petitioner: The court found that the petitioner had suppressed material facts, including the Gas Transmission Agreement (GTA) with the respondent No.2 and various correspondences regarding additional gas supply. It was noted that the petitioner did not disclose these facts in the petition but only in rejoinders after the respondents raised objections. The court emphasized that full and fair disclosure of all material facts is imperative in writ jurisdiction. The suppression of material facts led the court to dismiss the petition on this ground alone, referencing the principles laid out in cases such as *Prestige Lights Ltd. v. State Bank of India* and *Bhaskar Laxman Jadhav v. Karamver Kakasaheb Wagh Education Society*. 3. Jurisdiction of Approval Committee under SEZ Act: The petitioner contended that the approval for laying the pipeline should have been obtained from the Board of Approval under Section 9(d) of the SEZ Act, as it constituted an "infrastructure facility." The court interpreted the definitions under Section 2(p) of the SEZ Act and Rule 2(1)(s) of the SEZ Rules, concluding that the facilities needed for the development of SEZ do not include facilities for individual units within SEZ. The court held that the approval granted by the Approval Committee was valid and within its jurisdiction under Section 14(1)(c) of the SEZ Act. 4. Exclusivity Rights of the Petitioner under the Co-Developer Agreement: The petitioner claimed exclusivity in providing gas infrastructure within SEZ based on the Co-Developer Agreement with the respondent No.3. The court noted that the exclusivity claimed by the petitioner was not supported by the SEZ Act or the sub-lease agreement between the respondent No.3 and respondent No.2, which allowed the respondent No.2 to obtain services from other agencies if not provided by the Co-Developer. The court found that the petitioner’s claim of exclusivity was unfounded. 5. Consistency between SEZ Act and PNGRB Act: The court examined whether there was any inconsistency between the SEZ Act and the PNGRB Act, which would invoke the overriding effect of the SEZ Act under Section 51. The court found no inconsistency between the two Acts. It was noted that the PNGRB Act applies to both the petitioner and respondent No.1, and the provisions of the SEZ Act do not grant exclusivity that would contravene the competitive market principles of the PNGRB Act. The court concluded that the SEZ Act does not override the PNGRB Act in this context. Conclusion: The petition was dismissed due to the suppression of material facts by the petitioner and the court found no merit in the claims regarding the jurisdiction of the Approval Committee, exclusivity rights under the Co-Developer Agreement, and inconsistency between the SEZ Act and the PNGRB Act. The ad-interim relief granted earlier was vacated, and notices were discharged.
|
