(A) Arbitration and Conciliation Act (26 of 1996) , S.34— Arbitral award – Challenge against – Dispute arose out of agreement executed for fixation of tariff for fertilizer berth, which was later unilaterally revised by appellant – Agreement required mutual consent for revision of rates – Cl. 19 of agreement also made it clear that respondent had to follow all relevant laws, rules, and regulations of appellant-Port Trust – No agreement could override the law – Cl.1 of agreement simply created facilities and set tariff, which could be revised from time to time – If parties could not agree on revision, some authority would have to decide – Finding recorded by arbitrator that only Cl. 1 applied and not Cl. 19, was against the principle that a contract must be read as a whole rather than treating its clauses separately .
AIR 2023 ORI 106-Reversed(Paras20.120.220.3212626.13461.1)
(B) Major Port Trusts Act (38 of 1963) , S.48— Unilateral revision of tariffs – Dispute regarding – Appropriate authority to decide – Dispute arose out of agreement executed for fixation of tariff for fertilizer berth, which was later unilaterally revised by appellant – Arbitrator had quashed unilateral tariff hike from October 1993, holding that appellant should have either sought consent, terminated agreement, or gone for arbitration and directed parties to approach Tariff Authority for Major Ports (TAMP) for period after 01.04.1999 – Order of appellate authority was cryptic and High Court wrongly held that agreement will override provisions of 1963 Act – Port tariffs had been revised in later years due to rising costs and after transfer of respondent unit to private sector – Since the 1963 Act had been replaced by the 2021 Act, which provided for an Adjudicatory Board that was not yet constituted, TAMP continued to have jurisdiction – Issues required to be considered for revision of rates had not been considered appropriately – TAMP being an independent authority consisting of experts, will be the right authority for resolution of said dispute pending for more than two decades – Matter was remitted to TAMP
Arbitration and Conciliation Act (26 of 1996) , S.34— (Paras26.32728293031323334)
(C) Major Port Trusts Act (38 of 1963) , S.48— Revision of port tariffs – Rejection of claim – Challenge against – Dispute arose out of agreement executed for fixation of tariff for fertilizer berth- Claim of appellant for revision of the rates was rejected – As at relevant time, respondent was Public Sector Unit, the dispute was referred to informal arbitration – TAMP did not allow any revision despite fact that in over 10 years, costs and overheads must have risen significantly – TAMP was supposed to independently decide issue after giving both parties a fair hearing – Denying opportunity of hearing where complicated facts were involved, violated principles of natural justice – Matter was remanded to TAMP for consideration afresh
Arbitration and Conciliation Act (26 of 1996) , S.34— AIR 2023 ORI 106-Reversed(Paras4142434445464761.2)
(D) Major Port Trusts Act (38 of 1963) , S.48— Major Port Authorities Act (1 of 2021) , S.60— Fixation of port tariff – Appellate authority in respect of disputes regarding – Recommendation made for constitution of an appellate authority
Act of 1963 has been replaced by the 2021 Act with effect from 03.11.2021. In the 2021 Act, an adjudicatory board has been constituted under Section 54 thereof. The function of the board is fixation of tariff. First proviso to Section 54 of the 2021 Act provides that till such time the board is constituted, TAMP as constituted under the 1963 Act will continue to function. Section 60 of the 2021 Act provides for remedy of appeal against the order passed by the adjudicatory board to Supreme Court. Thus , first appeal against order passed by adjudicatory board and at present in its absence the TAMP, would lie to Supreme Court.
Fixation of tariff would involve consideration of various factual aspects, especially figures involved. Supreme Court may not have expertise to examine accounts in detail for the purpose of fixation of tariff. While deciding appeal against an order of an expert body, all issues of law and facts are required to be considered.
Considering the rise in business at the major ports, the importance of the TAMP in resolving the equally rising number of disputes cannot be undermined. Disputes related to such a technical area of importance can be better dealt with by a specialised expert body. Appeals therefrom should also be maintainable before specialised appellate body.
Therefore, it was recommended without disrespect to any authority , to make the remedy of appeal more effective and meaningful. It would be appropriate if an expert appellate body is constituted to hear appeals against the orders passed by the adjudicatory board/TAMP.