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C/SCA/21738/2017 CAV JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CIVIL APPLICATION NO. 21738 of 2017

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS.JUSTICE BELA M. TRIVEDI Sd/-

==========================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES

2 To be referred to the Reporter or not ?YES

3 Whether their Lordships wish to see the fair copy of the judgment ? YES

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

YES

==========================================================

GUJARAT STATE PETRONET LIMITED....Petitioner(s)

Versus

M/s.GAIL INDIA LIMITED & 3....Respondent(s)==========================================================

Appearance:

MR MIHIR THAKORE, SR. ADVOCATE WITH MR ASPI M KAPADIA,

ADVOCATE for the Petitioner(s) No. 1

MR KAMAL TRIVEDI, SR. ADVOCATE WITH ,MR MIHIR JOSHI, SR.

ADVOCATE WITH MR VISHWAS K SHAH, CAVEATOR for the Respondent(s)

No. 1

MR S.I. NANAVATI, SR. ADVOCATE WITH MRS SUMAN KHARE,

ADVOCATE for the Respondent(s) No. 2

MR RITURAJ M MEENA, ADVOCATE for the Respondent(s) No. 3

MR DEVANG VYAS, ADVOCATE for the Respondent(s) No. 4==========================================================

CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI

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Page 1 of HC-NIC Created On Tue Dec 26 19:30:23 IST 201780

Bar & Bench (www.barandbench.com)


Date : 26/12/2017

CAV JUDGMENT

1. The petitioner Gujarat State Petronet Limited

(hereinafter referred to as "GSPL”) has filed the

present petition, seeking following reliefs as

contained in paragraph 19 thereof:-

“19. a. To quash and set aside the

permission accorded by the respondent No.4

i.e. the Approval Committee in its 76th

meeting held on 11.10.2007 at Item No.76.4.1

as well as any subsequent communication to

respondent No.1 and/or respondent No.2 in

respect thereto;

b. To restrain the respondent Nos.1 and 2

from carrying out any pipeline laying

activity in the Dahej SEZ area for

transportation of Natural Gas;

c. Pending the hearing and final disposal

of this petition, to stay the operation,

execution and implementation of the

permission accorded by the respondent No.4

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i.e. the Approval Committee in its 76th

meeting held on 11.10.2007 at Item

No.76.4.1;

d. Pending the hearing and final disposal

of this petition restrain the respondent

Nos.1 and 2 from carrying out any pipeline

laying activity in the Dahej SEZ area for

transportation of Natural Gas;

e. To grant such other and further reliefs

as this Hon’ble Court deems fit and proper

in the facts and circumstances of the case;

f. To award costs of this petition.”

2. It may be noted that the petition filed on

30.11.2017 was sought to be circulated on the

same day at 2.30 p.m., and the said permission

was granted by the Court, considering the urgency

in the matter. The Court after hearing the

learned Sr. Advocate Mr.Mihir Thakore for the

petitioner and the learned Sr. Advocate Mr.Kamal

Trivedi appearing on caveat for the respondent

No.1 M/s.GAIL India Limited (hereinafter referred

to as "M/s.GAIL”), had issued the notices to the

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respondents making them returnable on 1.12.2017

and granted an ad-interim relief restraining the

respondent No.1 M/s.GAIL from laying and

connecting the 8” Natural Gas Pipeline by tap off

from its existing Dahej-Uran Pipeline (DUPL) for

supplying gas to the respondent No.2 ONGC Petrol

Additions Limited (hereinafter referred to as

"M/s.OPAL”) situated in Special Economic Zone,

Dahej (hereinafter referred to as "SEZ, Dahej”)

till the next date. The said order is continued

till this date. The respondent No.2 M/s.OPAL on

filing the Civil Application No.15785 of 2017,

seeking vacation of the said ad-interim relief,

and the parties having completed the pleadings,

the Court heard the Special Civil Application for

admission at length along with the said Civil

Application.

FACTUAL MATRIX:

3. The case of the petitioner as stated in the

petition is that the petitioner GSPL is a listed

public limited company, and is subsidiary of

Gujarat State Petroleum Corporation Limited

(hereinafter referred to as "GSPC”). The main

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activity of the petitioner is laying of gas

pipelines for developing gas grid in the State of

Gujarat for transportation of natural gas. On

the Special Economic Zones Act, 2005 (hereinafter

referred to as "the SEZ Act”) having come into

force, the petitioner Company had entered into a

Co-Developer Agreement dated 27.7.2009 (Annexure-

A) with the respondent No.3 M/s.DSL, the

Developer under the said Act. According to the

petitioner, the necessary permission being

No.F2/9/2003/EPZ dated 12.11.2009 (Annexure-B)

was accorded by the Government of India, Ministry

of Commerce and Industry, Department of Commerce

(SEZ Section), which was a permission by Board of

Approval under Section 3(12) of the SEZ Act.

Initially, the said approval was given for a

period of three years, which was subsequently

extended as per the letter dated 14.5.2012

(Annexure-C), and the validity of the said

permission and the Co-Developer Agreement was

made coterminous with that of the Developer. It

is further case of the petitioner that the

petitioner has set up gas infrastructure

facility, which includes gas pipeline made for

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transmission of natural gas to the units set up

in the Dahej SEZ area and accordingly the

petitioner is also transmitting gas to the

respondent No.2 M/s.OPAL. However, the

respondent No.1 M/s.GAIL in violation and in

contravention of the provisions contained in the

SEZ Act sought permission from the respondent

No.4 Approval Committee to lay 8” dia pipeline

from its existing Dahej Ural Pipeline to the

plant of the respondent No.2 M/s.OPAL for

providing facility for transportation of natural

gas. The respondent No.4 Approval Committee,

Dahej SEZ Limited (hereinafter referred to as

"the Approval Committee”), in its meeting held on

11.10.2017 at Item No.76.4.1, decided to approve

the said request of the respondent No.1

(Annexure-D). According to the petitioner, such

permission could have been granted by the Board

of Approval constituted under Section 8 of the

SEZ Act and not by the Approval Committee

constituted under Section 13 of the said Act.

The petitioner being a Co-Developer had

exclusivity to develop infrastructure for

transportation of gas and distribution of gas

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within SEZ area in view of the agreement dated

27.7.2009 entered into with the respondent No.3,

DSL. The petitioner, therefore, wrote a letter

on 8.11.2017 (Annexure-E) to the respondent No.3

i.e. the CEO, M/s.DSL, requesting him to

reconsider the decision of granting approval to

the respondent No.1. The CEO of the respondent

No.3, therefore, wrote a letter dated 24.11.2017

(Annexure-F) to the respondent No.2 M/s.OPAL with

a copy marked to the respondent No.1 GAIL stating

that the Gujarat State Petroleum Corporation

Limited (GSPC), being a Co-Developer, it should

obtain No Objection Certificate (hereinafter

referred to as "NOC”) from the GSPC. Thereafter,

the petitioner wrote a letter dated 29.11.2017 to

the respondent No.1 (Annexure-G), requesting it

not to undertake any gas pipeline laying activity

without seeking due permission from the Developer

M/s.DSL and the Co-Developer GSPL. A similar

letter was also written to the respondent no.2 on

29.11.2017 (Annexure-H). The petitioner

apprehending that the respondent No.1 M/s.GAIL

would make the Tap off and lay the pipeline for

transportation of gas to the respondent No.2,

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filed the present petition on 30.11.2017 seeking

afore-stated reliefs.

4. The respondent No.1 GAIL and the respondent No.2

OPAL filed elaborate affidavits-in-reply raising

various contentions, including the preliminary

objections as regards the maintainability of the

petition and alleging that the petition was filed

on 30.11.2017 with oblique motive and ulterior

purpose suppressing material facts to stall the

work of the respondent No.1, which was going on

in full swing at the site. The alternative

remedy of filing suit under Section 23 and of

filing arbitration proceedings under Section 42

of the SEZ Act was available to the petitioner.

The petition also suffered from the vice of delay

and laches, as after issuing letter on 8.11.2017,

the petition was filed on 30.11.2017 with oblique

motive.

5. It has been contended by the respondent No.1

inter alia that M/s.DSL is a company floated by

GIDC and ONGC duly notified by the Ministry of

Commerce and Industry, Government of India, as a

Developer of Multi Product SEZ at Dahej. On

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26.5.2004, GIDC had approved the proposal of the

respondent No.1 for laying 30” dia pipeline

Dahej-Hazira Gas Pipeline through GIDC corridor.

The Dahej SEZ was notified by the Ministry of

Commerce and Industry, Government of India, as a

Multi Product SEZ. On 27.7.2009 an agreement was

executed between the DSL and the petitioner, by

virtue of which the petitioner became Co-

Developer, and was conferred exclusive right with

respect to development, operation and maintenance

of Gas transmission pipeline and distribution of

Gas in SEZ. The respondent No.1 was granted

permission on 10.5.2010 by the Petroleum and

Natural Gas Regulatory Board under Regulation

17(1) of the Petroleum and Natural Gas Regulatory

Board (Authorizing Entities to lay, build,

operate or expand Natural Gas pipelines)

Regulations, 2008 (hereinafter referred to as

"the PNGRB Regulations 2008”) (Annexure-R/1). On

27.12.2011 a lease deed was executed between the

respondent No.2 M/s.OPAL and respondent No.3

M/s.DSL, and clause 4.6 thereof permitted the

M/s.OPAL to obtain any service, amenities or

facilities, which are not provided by the M/s.DSL

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and the Co-Developer the petitioner (Annexure-

R/2). On 12.10.2016 the petitioner by E-mail

refused to book additional supply of gas and

communicated to M/s.OPAL to look for an alternate

arrangement for additional capacity (Annexure-

R/3), by which the petitioner had waived its

right under the agreement with DSL.

6. The respondent No.1 has further contended that on

31.8.2017, the respondent M/s.GAIL had sought

permission from the respondent No.3 M/s.DSL for

laying 8” dia pipeline by Tap off from the

existing respondent’s DUPL 30” dia natural gas

pipeline to M/s.OPAL across GIDC/SEZ area in

existing Right of Use (ROU) of the respondent

(Annexure-R/6). Accordingly, on 29.9.2017 the

respondent No.3 had granted, in principle,

approval to the respondent No.1 (Annexure-R/7).

Thereafter, on 11.10.2017 the respondent No.4 -

Approval Committee in its meeting decided to

approve the said request of the respondent No.1

vide Item No.76.4.1. On 27.10.2017, the

Development Commissioner of M/s.DSL wrote a

letter to the respondent No.1 and the respondent

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No.2, stating that the Approval Committee in its

meeting held on 11.10.2017 had decided to approve

the said request. Despite the said permission

and approval granted by the respondent Nos.3 and

4, the respondent No.3 M/s.DSL wrote a letter

dated 24.11.2017 asking the respondent No.1 to

seek NOC from the GSPC, who had no locus in the

entire matter. The said letter was dispatched on

27.11.2017 and delivered at 1.30 p.m., on

29.11.2017. The petitioner, on 29.11.2017 wrote

a letter to the respondent No.1 requesting it to

refrain from undertaking any gas pipeline

activity without seeking permission from the

petitioner and the respondent No.3, though the

respondent No.3 had already granted permission as

per the letter dated 29.9.2017. It is also

contended that the respondent No.1 already had

its natural gas pipeline laid near the respondent

No.2 M/s.OPAL’s location. Since the respondent

No.2 M/s.OPAL required such quantity of natural

gas, which the petitioner was not in a position

to fulfill, the respondent No.1 GAIL, who was

inclined to provide sufficient quantity of gas to

OPAL, came into picture. There was no provision

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under the SEZ Act giving exclusivity or monopoly

to the petitioner to provide natural gas to the

units set up in SEZ. The petitioner and the

respondent No.3 had also waived their rights

conferred under the agreement in view of the

various correspondences and the E-mails that had

ensued between the parties. There was a separate

and independent natural gas pipeline

infrastructure (9 km) existing for the supply of

natural gas to one of the units i.e. M/s.Torrent

Power Limited, apart from the natural gas

pipeline infrastructure of the petitioner and the

said unit is not functioning on the basis of

natural gas supply and transportation received

from the petitioner GSPL. It is also contended

that the respondent No.1 is supplying natural gas

in liquid form through a pipeline laid and

operated by ONGC to ONGC’s C-2, C-3 Dahej Plant

located in the Dahej SEZ since 2003 and the said

pipeline was not installed by the petitioner.

There are other various independent pipelines

existing, whereby various units are receiving

natural gas from different and distinct

alternatives other than the petitioner, and

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therefore, the petitioner could not claim

exclusivity as claimed in the petition. Further,

as per the PNGRB Regulation 2008 an obligation is

cast on the respondent No.1 to provide

connectivity to the consumers within the tariff

zone corridor up to 50 kms from either side of

the natural gas pipeline and that the premises of

M/s.OPAL is located approximately 25 kms from the

existing pipeline of the respondent No.1. The

respondent No.1, therefore, had accepted the

request of the respondent No.2 M/s.OPAL for

transportation of natural gas, for which the

commercial arrangements were also entered into.

According to this respondent, supply of gas by

creating Tap off would not fall within the

definition of “infrastructure facilities”

contained in Section 2(p) of the SEZ Act. The

facility sought to be provided by the respondent

No.1 is relatable to Section 14(1) of the said

Act as the respondent No.1 would be supplying gas

only to the respondent No.2 M/s.OPAL and not to

the entire SEZ, and therefore, there was no

necessity to obtain approval from the Board.

Lastly, it is contended that the action of the

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petitioner tantamounted to monopolistic and

restrictive trade practice, defeating the purpose

of SEZ Act and PNGRB Act.

7. The respondent No.2 M/s.OPAL has also filed

detailed affidavit-in-reply raising number of

issues and placing on record voluminous

correspondences that had ensued between the

parties through E-mails and letters, to show as

to how the petitioner had suppressed material

facts from the Court. Mainly it has been

contended that the respondent No.2 is a joint

venture company promoted by M/s.Oil and Natural

Gas Corporation and co-Promoted by M/s.GAIL i.e.

the respondent No.1, and Gujarat State Petroleum

Corporation Ltd. (GSPC). The respondent No.2

OPAL has set up their grass root mega

petrochemical project of national importance for

manufacturing petrochemical products and other

allied products at Dahej SEZ, Gujarat in

PCPIR/SEZ with an investment of USD 4.5 billion

and in a way, M/s.OPAL Plant is Asia’s largest

single point Petrochemical complex, and has

impacted entire polymer industries of the country

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by providing world class polymer product. The

respondent No.2 M/s.OPAL had entered into a lease

agreement with the respondent No.3 on

27.12.2011 (Annexure-R/1). As per Clause 4.5 of

the said lease deed the supply of piped gas was

to be made by the petitioner GSPL. As per Clause

4.6 of the said lease deed the respondent No.2

M/s.OPAL was free to obtain any service,

amenities or facilities, which were not provided

by the M/s.DSL or Co-Developer/Service Provider,

directly from the concerned third party agencies.

Pursuant to the Clause 4.5 of the lease

agreement, a Gas Transmission Agreement

(hereinafter referred to as "GTA”) dated

12.8.2014 came to be executed between the

respondent No.2 M/s.OPAL and the petitioner GSPL.

According to the said agreement, GSPL was a

transporter of Gas through its pipeline network

to be supplied in the units of SEZ. Thus, the

respondent No.2 M/s.OPAL had an option to secure

its supply from any third party and could

transport to its plant through Pipeline Net Work

of GSPL laid in the SEZ. M/s.OPAL could also

increase or decrease the quantity of demand for

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the gas as per Clause 5.2 of the GTA. According

to the respondent No.2 M/s.OPAL, it had initially

demanded CT of 0.5 MMSCMD during the construction

and commissioning phase of the plant, however, on

the completion of the commissioning of the plant,

it had anticipated increase of gas requirement

for 100% production of its plant. M/s.OPAL,

therefore, in terms of Clause 5.2 of GTA had made

a request for the additional booking of

transmission capacity to the petitioner through

various E-mails, requesting an additional CT of

0.80 MMSCMD for the period from 10.10.2016 to

16.10.2016 and additional CT of 0.5 MMSCMD for

the period from 17.10.2016 to 23.10.2016 at PLL-

GSPL connectivity. In response to the said

request, the petitioner GSPL refused to confirm

additional capacity in their pipeline and advised

M/s.OPAL to make alternate arrangement by E-mail

dated 12.10.2016. M/s.OPAL had again made a

request for additional capacity through

subsequent E-mails, however, GSPL had refused to

provide the same citing reasons of being over-

booked, as per the E-mail dated 13.10.2016.

According to the respondent No.2, it had made

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several requests time and again for additional

capacity, however, the petitioner had refused to

provide the same. Lastly, it was refused by the

petitioner as per the E-mail dated 24.4.2017.

All the communications through E-mails have been

produced on record by the respondent No.2 as

Annexure-R/II (colly).

8. Thus, according to the respondent No.2 M/s.OPAL,

the petitioner GSPL had failed to provide the

transmission capacity as demanded by M/s.OPAL in

terms of Clause 5.2 of GTA and thereby had

created a situation for the M/s.OPAL either to

close down the unit or to explore other source

for booking capacity as advised by GSPL to meet

with its energy requirement of gas supply.

M/s.OPAL, therefore, had identified already

existing 30” dia DUPL natural gas pipeline of the

respondent No.1 M/s.GAIL, passing from the

M/s.OPAL Plant and had decided to procure its

additional requirement of gas by booking gas

transmission capacity from the said existing DUPL

pipeline by laying 8” dia pipeline for 0.25

meters to its plant. According to the respondent

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No.2, the respondent No.1 M/s.GAIL for laying 8”

dia pipeline had sought permission from the

Development Commissioner of M/s.DSL, vide the

letter dated 31.8.2017 and the respondent No.2

M/s.OPAL had also sought consent from the

respondent No.3 DSL, vide its letter dated

15.9.2017 for laying of 8” dia pipeline. The

respondent No.3 DSL vide letter dated 29.9.2017

also granted, in principle, approval to M/s.GAIL

for laying 8” dia pipeline, subject to the

conditions mentioned therein. The Development

Commissioner also vide the letter dated

27.10.2017 had intimated the M/s.GAIL about the

approval given by the Approval Committee, in its

76th Approval Committee meeting held on 11.10.2017

for laying the said pipeline.

9. It is further contended by the respondent No.2

M/s.OPAL that the petitioner GSPL after denying

the requisite gas to M/s.OPAL, addressed a letter

dated 8.11.2017 to the respondent No.3 DSL to

reconsider its decision granting approval for

laying 8” dia pipeline without marking any copy

thereof to M/s.OPAL. According to the respondent

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No.2, respondent No.3 DSL all of a sudden issued

a letter dated 24.11.2017 to the M/s.OPAL

informing that for laying 8” dia pipeline, it was

required to get NOC from GSPC. According to the

respondent No.2 though the said letter was dated

24.11.2017 it was posted on 27.11.2017 and was

received by M/s.OPAL only on 29.11.2017, when the

work of laying pipeline was almost completed.

The respondent No.2 has further alleged that the

petitioner GSPL, with mala fide intention had

tried to obstruct M/s.OPAL from sourcing its

transmission capacity requirement from other

alternatives, and after managing with the DSL to

issue back-dated letter 24.11.2017, GSPL through

its letter dated 29.11.2017 intimated to M/s.GAIL

and M/s.OPAL about their not granting NOC for

laying of 8” dia pipeline. The said letter dated

29.11.2017 was received on 1.12.2017 after the

interim relief was granted by the Court in the

present petition. The said letter was replied by

M/s.OPAL vide its letter dated 1.12.2017

(Annexure-R/VI).

10.The respondent No.2 has further contended that by

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the GTA Amendment Agreement dated 22.11.2017

(Annexure-R/VII) executed between the GSPL and

M/s.OPAL, the GSPL had committed the capacity of

only 0.75 MMSCMD CT to M/s.OPAL for the period

from 1.1.2018 to 31.12.2019. Thus, according to

the respondent No.2 all these material facts were

concealed by the petitioner in the petition and

had created a mirage urgency for filing the

petition at the eleventh hour when almost entire

work of laying pipeline was already completed by

M/s.GAIL, which had started in the month of

October, 2017. The respondent No.2 has also

alleged other various suppression of material

facts as stated in the reply. According to the

respondent No.2, the provisions of SEZ Act were

misinterpreted by the petitioner and the Approval

Committee having validly approved the request of

M/s.OPAL and M/s.GAIL, there was no need to

obtain any approval from the Board of Approval,

the laying of pipeline being not to create

infrastructure facility in the SEZ as

contemplated in Section 2(p) of the SEZ Act.

There was also an arbitration Clause contained in

the GTA/Co-Developer Agreement executed between

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the parties, and therefore, alternative remedy

being available to the petitioner, the petition

deserved to be dismissed.

11. The respondent No.3 has filed affidavit-in-

reply in cursory manner without dealing with any

of the issues raised in the petition or the

affidavit-in-rejoinder filed by the other

respondents. The petitioner GSPL has filed the

affidavit-in-rejoinder to the reply filed by the

respondent No.1, supplementary affidavit-in-

rejoinder to the reply filed by the respondent

No.1 and affidavit-in-rejoinder to the additional

affidavit-in-reply filed by the respondent No.2

denying the allegations made by the respondent

Nos.1 and 2, and further contending inter alia

that the petitioner and the respondent No.2

M/s.OPAL had entered into the GTA on 12.8.2014,

valid for a period of five years, under which the

petitioner had undertaken to transport the gas

through its pipeline. After the execution of the

GTA, the parties thereof have to enter into

Capacity Tranche (CT) by way of Amendment

Agreements from time to time, whereby the

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specific period, specific quantity, specific

entry point and the tariff applicable as per

specific zone under the PNGRB Act 2006 is agreed

by the parties. The CTs are executed at the

request of the shipper i.e. M/s.OPAL in the

instant case. If the CTs are on firm basis, it

would contain the provision for “ship or pay”

obligation upon the shipper as well as payment of

liquidated damages obligation upon the

transporter. Accordingly, in the year 2014

M/s.OPAL had entered into a CT-1 with the

petitioner for a period of 2½ years and

thereafter further CTs were executed based on the

request and requirement of M/s.OPAL. The

petitioner had always transported the booked

capacity under the said CTs to the M/s.OPAL. It

is further contended that the M/s.OPAL was in the

process of commissioning its plant till January

2017 and the volume of its requirements were

fluctuating, and therefore, M/s.OPAL opted for

entering into various short-term CTs for specific

volume for additional requirements above the 0.5

MMSEMD booked under CT-1.

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12. As regards E-mail dated 12.10.2016 of the

petitioner, wherein it was stated to make

alternative arrangements, it has been contended

by the petitioner that the said statement was

made indicating that M/s.OPAL instead of

insisting for capacity from PLL-GSPL, Dahej

direct entry point, M/s.OPAL may make alternative

arrangement to source and deliver gas at some

other entry point including the one at GSPL-

M/s.GAIL Dahej inter-connect entry point. It may

be noted that the Schematic Diagram of

arrangement of pipeline connectivity with the

PLL, Dahej terminal and M/s.OPAL unit has been

annexed as Annexure-D to the said affidavit-in-

rejoinder, and the same is made part of this

order to understand the issue in better manner.

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13. According to the petitioner, to overcome the

issue of lower pressure at the delivery point,

the petitioner GSPL had requested Petronet LNG

Ltd (PLL) to provide separate header to GSPL at

the PLL, Dahej terminal and accordingly separate

header has been provided in September 2017, and

therefore, the supply pressure issues are not

likely to arise now. It is also stated that the

spur-line laid by the petitioner for the supply

of gas to M/s.OPAL is capable of transporting 3.4

MMSCMD gas volumes and now the petitioner GSPL is

in a position to supply and meet with all the gas

volume requirements of M/s.OPAL. While denying

the claim of M/s.OPAL that the GSPL had not met

with the M/s.OPAL’s requirement of gas

transportation, it has been stated that during

the period from 1.2.2017 to 30.11.2017 on a

average 1.43 MMSCMD was transported to M/s.OPAL.

To meet with the balance requirement, M/s.OPAL

used to invite tenders for short term gas supply

on delivered basis, and used to enter into

Delivered Contracts with the supplier of Gas.

Relying upon Clause 4.5 of the land lease

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agreement dated 27.12.2011 entered into between

M/s.OPAL and M/s.DSL, it has been stated that the

said clause recognized that M/s.OPAL Unit was

required to transport gas through pipeline

network of GSPL, the Co-Developer of SEZ. Since

there was no failure on the part of the

petitioner, and M/s.OPAL can not avail services

of a third party for gas transportation.

14. During the course of the arguments it was

alleged by the learned Sr. Advocate Mr.Nanavati

for the respondent No.2 M/s.OPAL that some

mischief was played by the officers of the

petitioner and the respondent No.3 in issuing the

letter dated 24.11.2017 addressed to the

respondent No.1 M/s.GAIL and the respondent No.2

M/s.OPAL, which was received by the said

respondents only on 29.11.2017, whereas it was

received by the petitioner on 27.11.2017, the

Court had directed the Company Secretary of the

petitioner and the CEO of the respondent No.3 to

file their respective affidavits as per the order

dated 12.12.2017. Accordingly, the said

affidavits were filed and the CEO of the

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respondent No.3 had also remained personally

present on 13.12.2017. Pertinently, the CEO of

the respondent No.3 was not in a position to

answer the query of the Court put to him, as to

what was the need to issue the letter dated

24.11.2017 when the DSL had already granted, in

principle, approval on 29.9.2017 and the approval

Committee had also granted approval in its

meeting held on 11.10.2017. The said conduct of

the CEO has been recorded by the Court in the

order dated 13.12.2017.

LEGAL SUBMISSIONS:

During the course of lengthy arguments, series of

diverse and multifarious submissions were made by

the learned Advocates appearing for the parties.

The pith and substance of their submissions may

be stated as under:-

15. Submissions of learned Sr. Advocate Mr.Mihir

Thakore for the petitioner GSPL:

15.1 As regards the preliminary objection

raised by the respondents in respect of

alternative remedy being available, it has been

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submitted that the Courts have not been

designated so far, as contemplated under Section

23 of the SEZ Act. Section 42 of the said Act

for deciding disputes by Arbitrator does not

apply to the parties as the dispute could not be

said to be between two or more entrepreneurs or

two or more developers or between an

entrepreneurs and a developer. The provisions

contained in Section 24 of the PMGRB Act also did

not apply as under the said provision, the

Petroleum Board has jurisdiction to decide the

dispute relating to the matters enlisted in Sub-

section (2) thereof and the present dispute can

not fall within any of the matters contained

therein. Even otherwise, existence of

alternative remedy could not be said to be an

absolute bar against preferring writ petition

under Article 226 of the Constitution of India,

as held by the Supreme Court in case of Calcutta

Discount Co. Ltd. Vs. Income Tax Officer,

Companies District and Anr., reported in AIR

1961 SC 372 and in case of Whirlpool Corporation

Vs. Registrar o Trade Marks, Mumbai, reported

in (1998) 8 SCC 1.

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15.2 As regards suppression of material facts

it has been submitted that all the relevant facts

for challenging the decision of the approval

committee were disclosed in the petition. The

GTA entered into between the respondent No.2 and

the petitioner was produced by the petitioner

upon the observation made by the Court that the

GTA should have been filed by the petitioner.

Though GTA would throw light on the contractual

relationship between the petitioner and the

respondent No.2, it was not necessary for

deciding the core issue raised by the petitioner

in the petition. The communications referred by

the respondent Nos.1 and 2 in their respective

affidavits-in-reply were not germane or relevant

for deciding the issue whether the approval

committee’s decision was without jurisdiction or

ultra vires the provisions of SEZ Act. In this

regard, reliance is placed upon the decision of

the Supreme Court in case of S.J.S. Business

Enterprises (P) Ltd. Vs. State of Bihar and

Ors., reported in (2004) 7 SCC 166.

15.3 As regards the challenge to the impugned

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decision of the Approval Committee, it has been

submitted that laying of pipeline for

transportation of natural gas by the respondent

No.1 in Dahej SEZ area is an “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 (hereinafter

referred to as "the said Rules”). As per Section

9(2)(d) of the SEZ Act only the Board has the

power and jurisdiction to grant approval for

providing infrastructure facility within SEZ

area. The approval committee did not have any

power under Section 14 of SEZ Act to grant such

approval. As per Section 3(11), the person

intending to provide infrastructure facility has

to submit the proposal to the Board of approval

after entering into the agreement with the

developer and as per Section 3(12), the person

having approval of Board of approval and the

Central Government for providing infrastructure

facilities would be a Co-Developer.

15.4 There is no restriction under the SEZ

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Act in respect of granting exclusivity, and

therefore, the exclusive right was granted to the

petitioner by the respondent No.3 developer under

the Co-Developer agreement, which is supported by

the provisions of PNGRB Act. The respondent No.1

did not have unfettered right to lay any pipeline

anywhere in India under PNGRB Act, as such right

would be subject to the provisions of the SEZ

Act, which has overriding effect in the event of

any inconsistency between the two Acts. The

expression “for the time being in force” would

not only include the present legislations, but

would also include future legislations, as

interpreted by the Supreme Court in case of Yakub

Abdul Razak Memon Vs. State of Maharashtra,

reported in (2013) 13 SCC 1 (p. 653).

15.5 The respondent No.1 being Central

Government authorized entity under Regulation

No.17 of the PNGRB Regulations 2008 (hereinafter

referred to as "the Regulations 2008), the

schedule-J thereof does not apply to the

respondent No.1.

15.6 Under the GTA, the petitioner has

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executed various capacity tranches from time to

time, according to which the respondent No.2 has

the obligation to supply gas at entry point at

PLL-Dahej terminal at a particular pressure

range, which the respondent No.2 had failed to

provide at the said pressure. The meaning of

alternative arrangement referred to in the E-mail

dated 12.10.2016 was to off take gas at different

entry points and the same was understood to be so

by the respondent No.2. The additional capacity

could also have been booked from Hazira L & T

terminal but the same was never sought from that

source by the respondent No.2.

15.7 Denying the allegations of monopolistic

and restrictive trade practice, it has been

submitted that the petitioner is booking capacity

in its pipeline on non-discriminatory basis as

per the provision of PNGRB Regulations. However,

there were pressure issues due to which the

petitioner could not book additional capacity for

the respondent No.2. The entities, who had

already booked capacities in the petitioner’s

pipeline were in a position to transport gas

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through their booked capacity and accordingly

GSPC, the holding Company of the petitioner was

able to supply gas from the petitioner’s pipeline

to M/s.OPAL. Despite the pressure issues, the

petitioner has always supported the respondent

No.2 in meeting with its gas requirements.

15.8 As regards the letter of M/s.DSL in

respect of NOC requirements, it has been

submitted that the respondent No.3 M/s.DSL vide

its letter dated 29.9.2017 had granted, in

principle, approval only for the Right Of Use in

Dahej SEZ area, and the respondent No.1 was

required to obtain permission from the

Development Commissioner/Board of Approval. As

the Development Commissioner was not authorized

to grant permission, it was only the Board of

Approval, which was the competent authority for

granting permission for laying of pipeline by the

respondent No.1. Against the said approval

Committee’s decision the petitioner had written

letter dated8.11.2017 to the respondent No.3, and

realizing their mistake, the respondent No.3 had

vide its letter dated 24.11.2017 asked the

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respondent No.2 with a copy marked to the

respondent No.1 to get the NOC from the

petitioner. The judgement of Appellate Tribunal

for Electricity in Appeal No.3/2011 relied upon

by the respondents was not applicable to the

facts of the present case, as the said judgement

did not deal with the specific issue of

requirement of the Board of Approval for setting

up infrastructure in Dahej SEZ.

16. Following submissions were made by the

learned Sr. Advocate Mr.Kamal Trivedi and learned

Sr. Advocate Mr.Mihir Joshi with learned Advocate

Mr.Vishwas Shah for the respondent No.1

M/s.GAIL:-

16.1 Raising the preliminary objection

against the maintainability of the petition, it

has been submitted that the petitioner has

efficacious alternative remedy since the disputes

between the petitioner, M/s.OPAL and M/s.GAIL

could be resolved in a civil suit to be filed in

the Designated Court, or through arbitration

under Section 42 of the SEZ Act or by PNGR Board

under Section 24 of the PNGRB Act 2006. The writ

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Court may not interfere with the contractual

matters involving technical aspects. The

petitioner has approached this Court with gross

delay and laches. The petitioner had sent

objections on 8.11.2017 with regard to the

approval granted by the Approval Committee, and

the work of laying pipeline had already been

undertaken in October-November, 2017, however,

the petitioner approached the Court after a long

time and that too, seeking hearing on urgent

basis at the eleventh hour on 13.11.2017.

16.2 The petitioner had not approached the

Court with clean hands and had suppressed gas

transmission agreement between itself and

M/s.OPAL, NOC dated 12.10.2016, the in-principle

approval granted by the respondent No.3 on

29.9.2017 and other correspondences. The conduct

of the petitioner in trying to promote its

holding company GSPC for supply of gas and

seeking monopoly for transmission and supply of

gas itself dis-entitles the petitioner from

claiming any relief. The letter dated 24.11.2017

issued by the CEO of DSL was received by M/s.GAIL

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on 29.11.2017 and on the same day, the petitioner

wrote a letter dated 29.11.2017 refusing NOC to

M/s.GAIL, though the letter dated 24.11.2017 was

not addressed to the petitioner and though no

such NOC was sought by M/s.GAIL or M/s.OPAL from

the petitioner, which smacked of mala fide

intention of the petitioner.

16.3 The petitioner had waived its rights in

the light of the fact that in May 2016 and

February 2017 using GSPC pipeline infrastructure,

M/s.GAIL had supplied natural gas to M/s.OPAL.

There is an independent and separate natural gas

pipeline infrastructure (9 km) existing for

supply of natural gas to the Torrent Power

Limited, apart from the natural gas pipeline

infrastructure of the Co-Developer i.e. the

petitioner. The respondent GAIL since 2013 is

supplying natural gas in liquid form through the

pipeline laid and operated by ONGC to ONGC’s C-2

C-3 Dahej plant located in the DSL. The

respondent No.2 M/s.OPAL is also sourcing natural

gas in liquid form (C-2 C-3) through the pipeline

laid by M/s.OPAL within Dahej SEZ. The E-mail

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dated 12.10.2016 of the petitioner to M/s.OPAL to

make alternative arrangement also established

that the petitioner had waived its right of

exclusivity.

16.4 There is no inconsistency between the

provisions contained in SEZ Act and PNGRB Act and

therefore, Section 51 of SEZ Act was not

applicable. In this regard reliance is placed on

the judgement dated 23.3.2012 of Appellate

Tribunal for Electricity in case of Torrent

Energy Ltd. Vs. Dakshin Gujarat Vj Co. Ltd. and

Ors., reported in (2014) 8 SCC 444.

16.5 Pressing into service the PNGRB

Regulations 2008 and Clause 1(g) of Schedule-J to

the said Regulation, it has been submitted that

the respondent No.1 M/s.GAIL has to provide

connectivity to the consumers within a tariff

zone in a natural gas pipeline and grant of any

restrain order against the M/s.GAIL would compel

it to violate and contravene the statutory

obligation as mandated in the said Regulations.

The M/s.GAIL pipeline has pre-existed the DSL

and hence, also M/s.GAIL has right to supply gas

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under the PNGRB Act and its Regulations. Supply

of gas by M/s.GAIL through its 25 mtr., long

pipeline to itself i.e. M/s.OPAL being one of the

units in SEZ, and in which M/s.GAIL is one of the

major shareholders, cannot be considered to be

“development, operation and maintenance of gas

transmission pipeline infrastructure facility

for the entire Dahej SEZ, under Section 2(p) of

the said Act or under Rule 2(1)(s) of the said

Rules. The said supply of gas is nothing but

sale of goods.

16.6 The definition of “infrastructure

facilities” given in Section 2(p) read with Rule

2(1)(s) is exhaustive in nature, inasmuch as Rule

2(1)(s) uses the words “means” followed by

“includes” with the enumeration of specific/named

facilities. “Transmission of Gas pipeline” is

not mentioned therein. Letter dated 12.11.2009

(Annexure-B) granting approval to the agreement

dated 27.7.2009 conferring exclusivity in favour

of the petitioner in the matter of providing gas

transmission pipeline infrastructure would not

make the said agreement statutory one.

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16.7 The power to grant approval dated

1.10.2017 by the Approval Committee to M/s.GAIL

and communicated by the Development Commissioner

vide the communication dated 27.10.2017 could be

traced to Section 14(1)(c) of the SEZ Act, or at

the best an administrative decision of the

approval committee. Such decision could not be

said to be without jurisdiction.

16.8 Alternatively, it has been submitted

that the requirement of obtaining NOC from

petitioner was beyond the purview of the said Act

and once DSL having given the permission, the

CEO, DSL had no power to issue letter dated

24.11.2017. Invoking the principles of interim

relief, it has been submitted that the respondent

M/s.GAIL has spent huge amount of Rs.20 crore for

various works for laying down 25 mtr long

pipeline for the purpose of supplying/selling gas

to M/s.OPAL and therefore, apart from prima facie

case being in favour of M/s.GAIL, balance of

convenience is also in favour of M/s.GAIL.

Reliance is placed on the decision of the Supreme

Court in case of Prabhjot Singh Mand and Ors.

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Vs. Bhagwant Singh and Ors., reported in (2009)

9 SCC 435 and in case of Reliance Natural

Resources Ltd. Vs. Reliance Industries Ltd.,

reported in (2010) 7 SCC 1.

17. The learned Sr. Advocate Mr.S. I. Nanavati

for the respondent no.2 M/s.OPAL has made

following submissions:-

17.1 The petition was filed by the petitioner

concealing material facts and misinterpreting the

provisions of the Act and creating imaginary

urgency, when almost entire work of laying

pipeline was completed by M/s.GAIL which had

started in October-November, 2017. The material

facts not stated in the petition have been

highlighted during the course of the submissions

and relying upon the various decisions of the

Supreme Court the prayer has been made to dismiss

the petition on the ground of suppression of

material facts alone. To buttress his

submission, Mr.Nanavati has placed reliance on

the decision of Supreme Court in case of

Prestige Lights Ltd. Vs. State Bank of India,

reported in (2007) 8 SCC 449, in case of Dalip

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Singh Vs. State of Uttar Pradesh and Ors.,

reported in (2010) 2 SCC 114 and in case of

Bhaskar Laxman Jadhav and Ors. Vs. Karamver

Kakasaheb Wagh Education Society and Ors.,

reported in (2013) 11 SCC 531.

17.2 In addition to the submissions made on

behalf of the respondent No.1, it has been

submitted that M/s.OPAL is a joint venture

company promoted by ONGC with 49.36% share and

co-promoted by M/s.GAIL with 49.21% share and

GSPC with 1.43% share, which is parent company of

the petitioner GSPL. In response to the request

made by M/s.OPAL for transportation of additional

supply of gas on firm basis by various E-mails

and for a period from 1.2.2017 to 31.1.2022, the

petitioner GSPL had refused to supply additional

quantity of gas by E-mail dated 12.10.2016 and

other E-mails and advised M/s.OPAL to make

alternative arrangement of gas supply, citing

reasons of capacity being overbooked. The

petitioner had created a situation where either

M/s.OPAL had to close down its unit or to explore

other source of its energy requirement of gas

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supply. According to Mr.Nanavati, the petitioner

GSPL with GSPC tried to see that M/s.OPAL had to

pay higher transmission cost for M/s.GAIL-GSPL

connectivity and for PLL-GSPL connectivity.

Submissions were also made to show as to how the

petitioner had tried to use monopolistic

structure against M/s.OPAL by not confirming the

transmission through its network on firm basis.

17.3 Relying upon the decision of the Supreme

Court in case of Hardeep Singh Vs. State of

Punjab and Ors., reported in (2014) 3 SCC 92, it

was sought to be submitted that the words “means”

and “includes” used in definition clause gives

“hard and fast definition” and no other meaning

can be assigned. Hence, the definition of

infrastructure facilities as contained in Section

2(p) read with Rule 2(1)(s) is required to be

construed strictly. In the instant case, the

pipeline is laid by M/s.GAIL to provide gas only

to M/s.OPAL and to no other units, and therefore,

could not be said to have created infrastructure

facility for SEZ.

17.4 As gas is raw-material required for the

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M/s.OPAL’s plant, the power to grant approval for

import and to monitor the utilization of gas and

services or warehousing or trading in SEZ, would

be with the Approval Committee under Section

14(a) and (c) of the SEZ Act. Hence, approval

granted by the Approval Committee in its meeting

held on 11.10.2017 was within its powers and

agenda.

17.5 All manufacturing units arrange a

redundant back up system for their raw material

supply so that in case of any eventuality, the

running plants are not stopped, because any

stoppage of gas supply for even five minutes will

result into approximately Rs.15 crore loss to

M/s.OPAL. The balance of convenience tilts

towards the respondent No.2 as it is only

M/s.OPAL which is incurring huge financial loss

every day. If at all GSPL has any exclusive

rights then it is an inter se dispute between

GSPL and DSL, to which a non-party to the

agreement should not be made to suffer.

18. The learned Advocate Mr.Meena for the

respondent No.3 has submitted that the respondent

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No.3 had granted, in-principle approval to the

respondent No.1 as per its request as per the

letter dated 29.9.2017, however, realizing that

such approval was likely to result into breach of

contract dated 1.7.2009 entered into by the

respondent No.3 with the petitioner, the CEO of

the respondent No.3 had written the letter dated

24.11.2017 to the respondent GAIL and OPAL for

obtaining NOC from the petitioner company before

the execution of the work at the site. According

to him, the petitioner company was given office

copy of the said letter dated 24.11.2017 on

27.11.2017, and the letter was dispatched to the

respondent Nos.1 and 2 on 27.11.2017 as 24th and

26th were public holidays.

PROVISIONS OF SEZ ACT:

19. Before adverting to the submissions made by

the learned Advocates for the parties with regard

to the provisions contained in SEZ Act and the

PNGRB Act, it would be beneficial to reproduce

the relevant provisions. Some of the relevant

Clauses contained in Section 2 are as under:-

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“2. Definition. In this Act, unless the context

otherwise requires,

(a) xxx

(b) “Approval Committee” means an Approval Committee constituted under subsection (1) of section 13;

(c) & (d) xxx

(e) "Board” means the Board of Approval constituted under subsection (1) of section 8;

(f) "CoDeveloper" means a person who, or a State Government which, has been granted by the Central Government a letter of approval under subsection (12) of section 3;

(g) “Developer” means a person who, or a State Government which, has been granted by the Central Government a letter of approval under subsection (10) of section 3 and includes an Authority and a CoDeveloper;

(h) to (o) xxx

(p) "infrastructure facilities" means industrial, commercial or social infrastructure or other facilities necessary for the development of a Special Economic Zone or such other facilities which may be prescribed;”

Section 3 pertains to the procedure for making proposal to establish Special Economic Zone. Subsections (11) and (12) thereof read as under:

(11) Any person who, or a State Government which, intends to provide any infrastructure facilities in the identified area referred

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to in subsection (2) to (4), or undertake any authorised operation may, after entering into an agreement with the Developer referred to in subsection (10), make a proposal for the same to the Board for its approval and the provisions of subsection (5) and subsections (7) to (10) shall, as far as may be, apply to the said proposal made by such person or State Government.

(12) Every person or a State Government referred to in subsection (11), whose proposal has been approved by the Board and who, or which, has been granted letter of approval by the Central Government, shall be considered as a CoDeveloper of the Special Economic Zone.

Section 8 pertains to constitution of Board of approval and Section 9 pertains to the duties, powers and functions of Board, the relevant part thereof is reproduced as under:

9. Duties, powers and functions of Board.(1) Subject to the provisions of this Act, the Board shall have the duty to promote and ensure orderly development of the Special Economic Zones.

(2) Without prejudice to the generality of the provisions contained in subsection (1), the powers and functions of the Board shall include –

(a) to (c) xxx

(d) granting of approval or rejecting of proposal for providing infrastructure facilities in a Special Economic Zone or modifying such proposals;

(e) to (i) xxx

The functions of Development Commissioner are enumerated in Section 12. Section 13 pertains to constitution of Approval Committee and Section 14

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pertains to powers and functions of the Approval Committee, the relevant part thereof is reproduced as under:

14. Powers and functions of Approval Committee. (1) Every Approval Committee may discharge the functions and exercise the powers in respect of the following matters, namely:

(a) & (b) xxx

(c) monitor the utilisation of goods or services or warehousing or trading in the Special Economic Zone;

Section 51 giving overriding effect to the Act reads as under:

51. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.

The Central Government has framed the Rules namely the Special Economic Zones Rules, 2006 in exercise of the powers conferred by Section 55 of the SEZ Act. The relevant definition “Infrastructure” as contained in Rule 2(1)(s) reads as under:

“2(s) infrastructure’ means facilities needed for development, operation and maintenance of a Special Economic Zone and includes industrial, business and social amenities like development of land, roads, building, sewerage and effluent treatment facilities, solid waste management facilities, port, including jetties, single point moorings, storage tanks and interconnecting pipelines for liquids and gases, Inland Container Depot or Container Freight Station, warehouses, airports, railways, transport system, generation and distribution of power, gas and other forms

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of energy, telecommunication, data transmission network, information technology network, hospitals, hotels, educational institutions, leisure, recreational and entertainment facilities, residential and business complex, water supply, including desalination plant, sanitation facility;”

20. It is beyond any cavil that the provisions

of the statute must receive strict interpretation

and that scrupulous compliance thereof is

imperative. However, before appreciating the

submissions made by the learned Advocates for the

parties in the light of the provisions of the SEZ

Act and PNGRB Act, the conduct of the petitioner

GSPL before and after approaching this Court

needs to be highlighted. It can not be gainsaid

that the writ jurisdiction is an extraordinary

equitable jurisdiction. It is a rule of equity

as well as of law that a suppresio veri is

equivalent to a suggestio falsi. Suppression of

truth is the suggestion of what is false. The

first and foremost preliminary objection raised

by the learned Advocates for the respondents is

that the petition was filed with oblique motive

and ulterior purpose suppressing material facts

from the Court. According to them, the

petitioner had not disclosed all the correct,

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material and relevant facts in the petition and

the same were sought to be brought on record by

way of affidavits-in-rejoinder, in reply to the

affidavits-in-reply filed by the respondent Nos.1

and 2. In this regard, it may be stated that as

held by the Division Bench of this Court in case

of Hiralaxmi and Ors. Vs. Municipal Corporation

of the City of Ahmedabad and Anr., reported in

AIR 1967 Gujarat 198, by and large the writ

jurisdiction proceedings, which are prerogative

proceedings have to be decided on the contents of

the petitions and the affidavits filed in reply.

Contentions not found amongst the grounds on

which relief is sought in the petition, if are

raised for the first time in rejoinder affidavit,

it would not be proper even to accept such

contentions, except in exceptional cases. In

matters of the nature of high prerogative writs

it is not only desirable, but necessary that the

petitioner should be precise in putting forward

his case, which the opposite party is called upon

to meet. It is also but proper that the

petitioner should state grounds with sufficient

particularity and disclose in the petition all

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the material and the grounds on which they move

the Court for the relief asked. It would

otherwise lead to most undesirable and

unsatisfactory results if petitioners are allowed

to raise new pleas or grounds by way of

supplementary pleas or trot out a plea not at all

made out in the petition.

21. In the instant case, as stated herein above

an urgent hearing of the petition was sought by

the learned Advocate for the petitioner on

30.11.2017 and the matter was permitted to be

circulated and heard at 2.30 p.m. on the same

day. The Court after considering the averments

made in the petition and the documents annexed

thereto, and after hearing the learned Sr.

Advocate Mr.Mihir Thakore appearing with learned

Advocate Mr.Aspi Kapadia for the petitioner and

learned Sr. Advocate Mr.Kamal Trivedi and

learned Sr. Advocate Mr.Mihir Joshi with learned

Advocate Mr.Vishwas Shah appearing on caveat for

the respondent GAIL, had granted an ad-interim

relief, restraining the respondent No.1 GAIL from

laying and connecting the 8” natural gas pipeline

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by tap off from its existing Dahej-Uran pipeline

for supplying gas to the respondent M/s.OPAL

situated in SEZ, Dahej. The respondents after

service of the notices appeared and filed their

respective affidavits-in-reply in detail, raising

various contentions, including the contention

that the petition suffered from the vice of

suppression of material facts. The petitioner

thereafter filed three affidavits-in-rejoinder

one after the other, from which it has been found

by the Court that the petitioner had not made

true and correct disclosure of material facts and

suppressed very relevant and important documents

and the correspondences that had ensued between

the parties, more particularly with the

respondent No.2 M/s.OPAL with regard to the

subject matter of the petition.

22. It is pertinent to note that though the

petitioner had entered into Gas transmission

agreement with the respondent No.2 M/s.OPAL on

12.8.2014 agreeing to make necessary arrangements

for transportation of gas for the respondent No.2

M/s.OPAL from time to time, subject to the terms

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and conditions mentioned therein, and had also

entered into various capacity tranches under the

said agreement from time to time, and had entered

into number of correspondences with the

respondent No.2 through E-mails and letters with

regard to the transportation of the additional

supply and also lastly entered into the GTA

Amendment agreement with M/s.OPAL on 22.11.2017,

there was not even a whisper made in the petition

about any of such agreements or the documents or

correspondences. It was only when the

respondents raised the contentions and the Court

also found that GTA and other documents should

have been produced on record, the same were

produced. The main contention raised by the

respondent No.2 in its affidavit-in-reply is that

because the petitioner refused additional booking

capacity for transmission of gas through its

pipeline, and suggested to look for an

alternative arrangement, the respondent No.2 had

sought for the alternative arrangement from the

respondent No.1 and accordingly the respondent

Nos.1 and 2 had sought the permissions from the

respondent No.3 DSL and the Approval Committee.

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It is also pertinent to note that the petitioner

had already raised objections against the said

permissions before the respondent No.3 DSL vide

the letter dated 8.11.2017. Under the

circumstances and in the background of these

facts, it was incumbent on the part of the

petitioner to place on record the basic and

material facts and documents along with the

petition.

23. As rightly submitted by the learned Sr.

Advocate Mr.S. I. Nanavati it is for the Court

and not for the litigant to decide as to which

fact is or is not material. It is the obligation

of the litigant to state candidly all material

facts. It is also well settled legal position

that if there is any suppression of material

facts on the part of the petitioner or twisted

facts have been placed on record by the

petitioner, the petition should be dismissed

without entering into the merits of the matter.

In this regard a very pertinent observations made

by the Supreme Court in case of Prestige Lights

Ltd. Vs. State Bank of India, reported in (2007)

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8 SCC 449 deserve to be reproduced as under:-

“33. It is thus clear that though the appellantCompany had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a Court of Law is also a Court of Equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the Writ Court may refuse to entertain the petition and dismiss it without entering into merits of the matter.

34. The object underlying the above principle has been succinctly stated by Scrutton, L.J., in R v. Kensington Income Tax Commissioners, [(1917) 1 KB 486 : 86 LJ KB 257 : 116 LT 136], in the following words:

"It has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should made a full and fair disclosure of all the material facts facts, not law. He must not misstate the law if he can help it. The Court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the Court will set aside, any action which it has taken on the faith of the

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imperfect statement".

35. It is well settled that a prerogative remedy is not a matter of course. In exercising extraordinary power, therefore, a Writ Court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the Court, the Court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible.”

24. In case of Bhaskar Laxman Jadhav and Ors.

Vs. Karamver Kakasaheb Wagh Education Society

and Ors., reported in (2013) 11 SCC 531, it has

been observed in paragraphs 44, 45, and 46 as

under:-

44. It is not for a litigant to decide what fact is material for adjudicating a case and what is not material. It is the obligation of a litigant to disclose all the facts of a case and leave the decision making to the Court. True, there is a mention of the order dated 2nd May 2003 in the order dated 24th July 2006 passed by the JCC, but that is not enough disclosure. The petitioners have not clearly disclosed the facts and circumstances in which the order dated 2nd

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May 2003 was passed or that it has attained finality.

45.We may only refer to two cases on this subject. In Hari Narain v. Badri Das, AIR 1963 SC 1558 stress was laid on litigants eschewing inaccurate, untrue or misleading statements, otherwise leave granted to an appellant may be revoked. It was observed as follows:

“9. ...It is of utmost importance that in making material statements and setting forth grounds in applications for special leave, care must be taken not to make any statements which are inaccurate, untrue or misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading. That is why we have come to the conclusion that in the present case, special leave granted to the appellant S.L.P. (C) No. 30469 of 2009 ought to be revoked. Accordingly, special leave is revoked and the appeal is dismissed. The appellant will pay the costs of the respondent.”

46. More recently, in Ramjas Foundation v. Union of India, (2010) 14 SCC 38 the case law on the subject was discussed. It was held that if a litigant does not come to the Court with clean hands, he is not entitled to be heard and indeed, such a person is not entitled to any relief from any judicial forum. It was said:

“21. The principle that a person who does not come to the court with clean hands is not entitled to be heard on the merits of his grievance and, in any

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case, such person is not entitled to any relief is applicable not only to the petitions filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in others courts and judicial forums. The object underlying the principle is that every court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have a bearing on adjudication of the issue(s) arising in the case.”

1. In view of the afore-stated legal and factual

position, the Court has no hesitation in holding

that the petitioner having suppressed material

facts from the Court and having made incorrect

and inaccurate statements in the petition, the

same deserves to be dismissed on the said ground

alone. Nonetheless, the petition having been

argued at length on various other issues, the

Court deems it proper to deal with those issues

also.

2. As regards alternative remedy, it was sought to

be submitted by the learned Sr. Advocate

Mr.Trivedi for the respondent No.1 GAIL that the

disputes between the parties could be resolved by

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filing civil suit under Section 23 or through

arbitration under Section 42 of the SEZ Act or

under Section 24 of PNGRB Act. However, the said

submission can not be accepted. It is not

disputed that the Courts have not been designated

to try the suit of civil nature arising in the

SEZ, as contemplated under Section 23 of the SEZ

Act. Whether the dispute raised in the petition

could be referred to the arbitration under

Section 42 of the SEZ Act or under section 24 of

PNGRB Act or not would be a debatable issue,

which the Court is not called upon to decide in

this petition. Even if it is presumed that the

same could be referred to the arbitration,

whether the said remedy could be said to be

effective or efficacious remedy or not, would be

another issue. In any case, as held by Supreme

Court in Whilepool Corporation Vs. Registrar of

Trade Mark (supra), the existence of the

alternative remedy itself would not operate as

bar, where the writ petition is filed for the

enforcement of any fundamental rights, or where

there has been violation of the principles of

natural justice or where the order or proceedings

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are alleged to be wholly without jurisdiction or

where the vires of the Act is challenged. In the

instant case, the statutory powers of the

Approval Committee and the Development

Commissioner have been challenged by the

petitioner, amongst others, and therefore, the

petition could not be rejected on the ground of

availability of an alternative remedy alone.

Having said that, let us examine the other issues

involved in the matter.

3. The bone of contention raised by the learned Sr.

Advocate Mr.Mihir Thakore for the petitioner is

that the action of laying of pipeline for

transportation of natural gas by the respondent

No.1 GAIL in Dahej SEZ area being an

“infrastructure facility” within the meaning of

Section 2(p) of SEZ Act, the necessary permission

was required to be obtained by the GAIL from the

Board of approval constituted under Section 8,

and that the approval granted by the Approval

Committee constituted under Section 13 was dehors

the provisions of the said Act. The said

submission made by Mr. Thkore though sounds very

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attractive and impressive, on the close reading

of the provisions of the Act, the Court does not

find any substance in the same.

4. It is significant to note that Section 3 of the

said Act pertains to the procedure for making

proposal to establish Special Economic Zone.

Sub-section (11) thereof provides inter alia that

any person, who, or a State Government, which

intends to provide any infrastructure facility in

the identified area referred to in Sub-section

(2) to (4) or undertake any authorized operation

made, after entering into an agreement with the

developer referred to in Sub-section (10) make a

proposal for the same to the Board for its

approval. As per Sub-section (12) thereof, the

person whose proposal has been approved by the

Board and who has been granted letter of approval

by the Central Government would be considered as

Co-Developer of the SEZ. Now, so far as

“infrastructure facilities” are concerned, the

same has been defined in Section 2(p) of the Act,

to mean industrial, commercial, or social

infrastructure or other facilities necessary for

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development of Special Economic Zone or other

facilities which may be prescribed. What is

significant in this definition is the word

“necessary”. The definition is in two parts. In

the first part, it is stated that the industrial,

commercial or social infrastructure or other

facilities necessary for the development of a

Special Economic Zone. It does not state about

the facilities necessary for the development of

the units set up in the SEZ. In the second part,

it is stated that “or other facilities which may

be prescribed”. In the opinion of the Court the

words “infrastructure facilities” themselves

imply that such facilities would be required at

the time of establishment and development of the

Special Economic Zone. Further, the other

infrastructure facilities have been prescribed in

the Rule 2(1)(s) of the said Rules. According to

Rule 2((1)(s), “infrastructure” means facilities

needed for the development, operation and

maintenance of a Special Economic Zone and

includes industrial, business and social

amenities as enumerated in the said Clause. Here

also, the emphasize is on the facilities “needed”

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for development, operation and maintenance of the

Special Economic Zone and not on the facilities

“needed” for the development, operation or

maintenance of the units set up by an

entrepreneurs in the Special Economic Zone. By

necessary corollary, it would mean that the

facilities or amenities needed for the units

could not be said to be the infrastructure

facilities needed for the Special Economic Zone.

5. It is well settled principle of interpretation of

statutes that no word or provision should be

considered redundant or superfluous. The

legislature attributes a particular meaning to

each word in a statute, and that word of a

statute must prima facie be given its ordinary

meaning. In this regard, a pertinent

observations made by Supreme Court in case of

Sankar Ram & Co. Vs. Kasi Nasicker and Ors.,

reported in (2003) 11 SCC 699, be made.

“7. It is a cardinal rule of construction that normally no word or provision should be considered redundant or superfluous in interpreting the provisions of a statute. In the field of interpretation of statutes, the courts always presume that the legislature inserted every part thereof

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with a purpose and the legislative intention is that every part of the statute should have effect. It may not be correct to say that a word or words used in a statute are either unnecessary or without any purpose to serve, unless there are compelling reasons to say so looking to the scheme of the statute and having regard to the object and purpose sought to be achieved by it. A Constitution Bench of this Court in Jaipur Zila Sahakari Bhoomi Bank Ltd. Vikas vs. Shri Ram Gopal Sharma and Ors. [JT 2002 (1) SC 182] while interpreting and considering the effect of proviso to Section 33(2)(b) of the Industrial Disputes Act, 1947 in para 13 observed:(SCC pp. 25253)

"13. The proviso to Section 33(2)(b) as can be seen from its very unambiguous and clear language, is mandatory........... Taking a contrary view that an order of discharge or dismissal passed by an employer in contravention of the mandatory conditions contained in the proviso does not render such an order inoperative or void, defeats the very purpose of the proviso and it becomes meaningless. It is wellsettled rule of interpretation that no part of statute shall be construed as unnecessary or superfluous. The proviso cannot be diluted or disobeyed by an employer......... The interpretation of statute must be such that it should advance the legislative intent and serve the purpose for which it is made rather than to frustrate it."

6. In case of Gurudevdatta VKSSS Maryadit and Ors.

Vs. State of Maharashtra and Ors., reported in

(2001) 4 SCC 534, it has been observed as under:-

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“26. Further we wish to clarify that it is a cardinal principle of interpretation of statute that the words of a statute must be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning, unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to suggest to the contrary. The golden rule is that the words of a statute must prima facie be given their ordinary meaning. It is yet another rule of construction that when the words of the statute are clear, plain and unambiguous, then the Courts are bound to give effect to that meaning, irrespective of the consequences. It is said that the words themselves best declare the intention of the law giver. The Courts have adhered to the principle that efforts should be made to give meaning to each and every word used by the legislature and it is not a sound principle of construction to brush aside words in a statute as being inapposite surpluses, if they can have a proper application in circumstances conceivable within the contemplation of the statute. Bearing in mind, the aforesaid principle of construction, if the expression any new member society occurring in the proviso to sub section (3) of Section 27 is construed, it conveys the only meaning that it refers to the societies to be formed hereafter and not of those societies which have already become member societies of the federal society. Therefore, the requirement of the completion of the period of three years from the date of its investing any part of its fund in the shares of such federal society would apply only to those societies which became member society of the federal society after 20th August, 2000. In this view of the matter, the impugned judgment of the High Court does not suffer from any infirmity. Even if there remained any doubt in the matter of interpreting the proviso, the

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Ordinance that has been promulgated on 27th

February, 2001, called the Maharashtra Ordinance No. X of 2001, after the first proviso to subsection (3), a second proviso had been inserted, has removed any doubt or controversy in as much as it has been indicated therein that the first proviso will not apply to the member society which has invested any part of its fund in the share of the federal society before the commencement of the Maharashtra Cooperative Societies (Amendment) Act, 2000 dated 20th

August, 2000. The aforesaid Ordinance also has been given a retrospective effect, to be effective from 23rd August, 2000. The Ordinance having been held to be valid by us as stated above, the socalled prohibition contained in the first proviso to subsection (3) of Section 27 will not apply to all those societies which have already become members of the federal society prior to 2382000.”

7. In the light of afore-stated proposition of

law, the words “necessary for the development of

a Special Economic Zone” contained in Section

2(p), and the words “needed for development,

operation and maintenance of a Special Economic

Zone” contained in Rule 2(1)(s) have to be given

their ordinary meanings, which would advance the

legislative intent and serve the purpose of the

Act.

8. Further, the facilities and amenities enumerated

in Rule 2(1)(s) do not cover the amenity of

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laying of natural gas pipeline for the supply of

gas to a particular unit. Though Mr.Thakore had

sought to submit that such amenity would be

included in the amenity of “generation and

distribution of power, gas or other form of

energy”, it is difficult to accept the said

submission. As held by Supreme Court in case of

Hardeep Singh Vs. State of Punjab (supra),

wherever the words “means and include” are used,

it is an indication of the fact that the

definition “is a hard and fast definition”, and

no other meaning can be assigned to the

expression that is put down in the definition.

It indicates an exhaustive explanation of the

meaning which for the purpose of the Act, must

invariably be attached to the words and

expression.

9. In the instant case, 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

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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. In that view of the matter, the Court is

of the opinion that under the circumstances, 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. It

is also pertinent to note that neither the

Approval Committee, nor the Development

Commissioner, at any point of time asked the

respondent Nos.1 and 2 to obtain the approval

from the Board of Approval, probably because they

also did not consider such necessity of procuring

additional supply of gas by M/s.OPAL from

M/s.GAIL to be an infrastructure facility. The

approval granted by the Approval Committee in its

meeting held on 11.10.2017, and conveyed by the

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Development Commissioner vide letter dated

27.10.2017 is required to be construed as the

approval granted in respect of the matter

contained in Section 14(1)(c) read with Section

12(2) of the Act. The respondent No.3 DSL had

also granted in-principle approval to the

respondent No.1 as per the letter dated

29.9.2017. The petitioner itself while raising

objection against such approval in its letter

dated 8.11.2017 had not contended that such

facility being infrastructure facility, the

respondent No.1 GAIL would be required to obtain

approval from the Board of Approval, or that the

Approval Committee had no such powers to grant

approval. Such contention has been raised for

the first time in the petition, which is

thoroughly misconceived.

10. Placing heavy reliance on the Dahej, Co-

Developer agreement dated 27.7.2009 (Annexure-A)

entered into by and in between Ms.DSL and GSPL,

the learned Sr. Advocate Mr.Thakore would submit

that the petitioner had sole and exclusive right

with respect to the development, operation and

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maintenance of gas transmission pipeline

infrastructure and distribution of gas in the

SEZ. In this regard, it is pertinent to note

that the said agreement was entered into between

the petitioner GSPL and the respondent No.3 DSL.

The same could not be made binding to the

respondent No.1 or respondent No.2, who were not

the parties to the said agreement. None of the

provisions contained in the said Act contemplates

exclusivity to the Co-Developer for providing

infrastructure facilities.

11. Mr.S.I. Nanavati, learned Sr. Advocate for

the respondent No.2 in this regard has rightly

relied upon the various clauses of the Sub-lease

deed dated 27.12.2011(Annexure-R/1) entered into

between the respondent No.3 M/s.DSL and the

respondent No.2 M/s.OPAL to submit that the

respondent No.2 was free to obtain any service,

amenities or facilities not provided by the

DSL/Co-Developer/service provider in Dahej SEZ

directly from the concerned agency. Further,

though the petitioner GSPL was the Co-

Developer/service provider for the supply of

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piped gas to the units of Dahej SEZ, the

respondent No.2 had an option to apply to GSPL

for gas supply on such terms and conditions as

may be mutually agreed between the sub-lessee

M/s.OPAL and the Co-Developer GSPL, as

contemplated in Clause 4.5 of the said sub-lease

agreement. Under the circumstances, in absence

of any provision under the Act and in absence of

any clause contained in the agreement between the

petitioner Co-Developer and the respondent No.2

as the sub-lessee, conferring exclusive right on

the petitioner for providing infrastructure

facilities, more particularly of laying the

pipeline for the transmission of gas supply to

the units set up in the special economic zone,

the claim of exclusivity made by the learned Sr.

Advocate Mr.Thakore for the petitioner is found

devoid of any merits.

12. The respondent No.3 M/s.DSL had already

granted, in-principle approval to the respondent

No.1 for offering land on Right of Use by letter

dated 29.9.2017, subject to the conditions

mentioned therein. One of the conditions was

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that the respondent No.1 M/s.GAIL had to obtain

permission/approval from the development

Commissioner SEZ, Government of India/Board of

approval MOCI, Delhi for laying 8” dia pipeline

by Tap off from existing M/s.GAIL – DUPL 30” dia

natural gas pipeline to M/s.OPAL in Dahej SEZ

area. The proposal being not for providing

infrastructure facility for the development of

SEZ, the approval of Board was not required, and

hence the permission was rightly sought by the

GAIL from the Development Commissioner who, in

turn, had put up the proposal before the approval

committee, and the said committee in its 76th

meeting held on 11.10.2017 had decided to approve

the said proposal.

13. It further transpires that the petitioner

after having come to know about the said approval

granted by the approval Committee had raised

objection by writing letter dated 8.11.2017

(Annexure-E) to the CEO of the respondent No.3

DSL. The petitioner in the said letter had

referred to the Co-Developer agreement executed

with Dahej SEZ and stated that the GSPL was

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entrusted with the sole responsibility to

develop, operate and maintain complete natural

gas infrastructure facilities in Dahej SEZ, and

therefore, the decision to approve the proposal

of M/s.GAIL and M/s.OPAL for development of

natural gas pipeline for M/s.OPAL was required to

be reconsidered. From the said letter, it

clearly emerges that the petitioner was aware at

least on 8.11.2017 about approval granted by the

Approval Committee and, about the in-principle

approval granted by the respondent No.3, and if

it was so aggrieved, could have approached the

Court, but it did not. It is further interesting

to note that the CEO of the respondent No.3

thereafter suddenly on 24.11.2017 addressed a

letter to the respondent No.2 M/s.OPAL with a

copy marked to the respondent No.1 M/s.GAIL

informing the respondent No.2 that M/s.Gujarat

State Petroleum Corporation (GSPC) being Co-

Developer for supply of natural gas in Dahej SEZ

area, the respondent No.2 was required to get no

objection certificate from M/s.Gujarat State

Petroleum Corporation (GSPC) before execution of

the work at the site. It is pertinent to note

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that M/s. Gujarat State Petroleum Corporation is

the holding company of the petitioner GSPL, and

it was the petitioner GSPL who was the Co-

Developer and not the GSPC. Be that as it may,

it is further pertinent to note that though the

said letter was addressed to the respondent Nos.1

and 2, and not even marked to the petitioner, the

CEO had furnished the office copy of the said

letter to the petitioner before dispatching the

said letter to the respondent Nos.1 and 2. The

said letter was dispatched on 27.11.2017 and was

received by the respondent Nos.1 and 2 only on

29.11.2017. Interestingly, though no such NOC

was asked for either by the respondent No.1 or by

the respondent No.2, the petitioner on 29.11.2017

issued a letter to the respondent No.1 M/s.GAIL

(Annexure-G) and to the respondent No.2 M/s.OPAL

(Annexure-H), intimating that the petitioner was

not in a position to issue NOC either to the

M/s.GAIL or to the M/s.OPAL for developing

natural gas pipeline to connect M/s.OPAL, and

requested the GAIL to cease all activities

including pipeline laying activities immediately.

When the letter dated 24.11.2017 issued by the

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CEO of the respondent No.3 was received by the

respondent Nos.1 and 2 only on 29.11.2017, there

was no question of seeking NOC from the

petitioner by the respondent Nos.1 and 2 before

29.11.2017 and therefore, there was no occasion

for the petitioner to write letters on 29.11.2017

refusing to grant NOC to them. The Court,

therefore, having found substance in the

submission made by Mr.S.I. Nanavati for the

respondent No.2 that the said letter dated

24.11.2017 was issued by the CEO of the

respondent No.3 in collusion with the petitioner,

with a view to create an imaginary urgency in the

matter for filing the petition on 30.11.2017,

though the petitioner was very much aware about

the approval granted by the Approval Committee

and the respondent Dahej SEZ as back as on

8.11.2017, the Court had directed the CEO of DSL

to remain personally present with his affidavit

explaining the situation. On his remaining

present before the Court, a specific query was

put by the Court as to what was the need for

issuing the letter dated 24.11.2017 when the

respondent No.3 DSL had already granted, the in-

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principle approval on 29.9.2017, and the approval

committee had also granted approval on

11.10.2017, the CEO of the respondent No.3 was

not in a position to answer the said query. The

said conduct of the CEU has been recorded by the

Court in the order dated 13.12.2017.

14. From the afore-stated conduct of the

petitioner and the CEO of the respondent No.3 it

clearly transpires that the said letters dated

24.11.2017 issued by the CEO of the respondent

No.3 and the letters dated 29.11.2017 issued by

the petitioner refusing to grant NOC were

prepared in collusion with each other to create

an artificial urgency in the matter, to file

petition on 30.11.2017, though the petitioner was

aware about the granting of approval by the

respondent No.3 DSL and by the Approval Committee

as back as on 8.11.2017, and though the work of

laying 25 mtr., pipeline was already started by

the respondent No.1 in October 2017 as stated by

the respondent No.2 in its affidavit-in-reply,

which has remained un-controverted by the

petitioner. Under the circumstances, the Court

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is constrained to hold that by seeking urgent

hearing of the petition, which contained

inaccurate and incorrect statements, and which

suffered from the vice of the suppression of

material facts, the petitioner had tried to

misuse the process of law. Such conduct on the

part of the petitioner has not only led to

miscarriage of justice, but huge financial loss

to the respondent No.2. The other technical

issues arising out of the contractual disputes

being highly disputed questions are not required

to be gone into, and therefore, not dealt with.

15. 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

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future legislations, as observed by Supreme Court

in case of Yakub Abdul Razak Memon Vs. State of

Maharashtra (supra). Hence, though the PNGRB Act

has been enacted later in point of time, the

provisions of SEZ Act would override the

provisions of the PNGRB Act, if there is any

inconsistency between any of the provisions

contained in the two Acts. As transpiring from

the long title of the PNGRB Act, the Act has been

enacted to provide the establishment of Petroleum

and Natural Gas Regulatory Board to regulate

amongst others transportation, distribution,

marketing etc.,of petroleum products and natural

gas so as to protect the interests of consumers

and entities engaged in the specified activities

to ensure uninterrupted and adequate supply of

petroleum, petroleum products and natural gas in

all parts of the country and to promote

competitive markets. It is not disputed that the

provisions of PNGRB Act applies to both, the

petitioner GSPL and the respondent No.1 GAIL.

Both are authorized entities as per Section 2(d)

and common carriers as per Section 2(j) of the

PNGRB Act. The PNGRB Board, in exercise of the

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powers conferred under Section 61 of the PNGRB

Act, has framed and amended the Regulations from

time to time, and has amended latest as per the

Amendment Regulations,2016. The learned Sr.

Advocate Mr.Thakore though relied upon the

provisions of both the Acts, had failed to point

out any inconsistent provision contained in the

PNGRB Act, which would get overridden by the SEZ

Act. According to him, the respondent No.1GAIL

could not be said to have an unfettered right to

lay pipelines for the supply of gas in any part

of the country,and that its rights and

obligations are subject to the SEZ Act, if the

area falls under the SEZ. There can not be any

disagreement to the said proposition, however, in

the facts and circumstances of the case, and in

view of the afore-discussed legal position, 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

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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.

16. In the afore-stated premises, the petition

being devoid of any merits and having been filed

suppressing material facts and documents,

deserves to be dismissed and is dismissed. Ad-

interim relief stands vacated forthwith. Notices

stand discharged.

(BELA M. TRIVEDI, J.)

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FURTHER ORDER:-

The request made by the learned Sr. Advocate

Mr.Mihir Thakore for the petitioner to extend the

ad-interim relief is rejected for the reasons

stated in the judgement.

(BELA M. TRIVEDI, J.) vinod

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