Gujarat High Court
Seabird vs Board
Author: Harsha Devani
Bench: Harsha Devani
SCA/13814/2010 24/ 24 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 13814 of 2010 ========================================= SEABIRD MARINE SERVICES PVT LTD - Petitioner(s) Versus BOARD OF TRUSTEES OF THE PORT OF KANDLA & 1 - Respondent(s) ========================================= Appearance : MR MIHIR THAKORE, SR. ADVOCATE with MR PR NANAVATI for Petitioner MR KM PATEL, SR. ADVOCATE with MR ALPESH RAJPURIYA for Respondents ========================================= CORAM : HONOURABLE MS.JUSTICE HARSHA DEVANI Date : 25/01/2012 ORAL ORDER
This petition under Article 226 of the Constitution of India challenges the order dated 11.2.2010 passed by the respondent No.1 which came to be issued on 4.10.2010 whereby the petitioner's lease came to be determined and the petitioner was directed to hand over the vacant and peaceful possession of the leased premises within 15 days of 4.10.2010 in terms of the said order.
By lease deed dated 14.12.2004 executed between the respondent No.1 - Kandla Port Trust (KPT) and Parekh Marine Agencies Pvt. Ltd. (PMAL), a sister concern in the same Group of Companies, the KPT demised land on plot No.6, Outside West Gate-1, Kandla Port, Kandla, District Kachchh to PMAL on the terms and conditions specified in the said lease deed. The relevant clause pertaining to use of the said plot reads as under :
"2
(vii) The lessee shall strictly use the plot, building structure erected thereon only for the purpose for which the allotment is made i.e. Godowns/Warehouses only. In case, the nature of the use of the plot is to be changed, the Lessee shall seek prior permission in writing from Chairman showing the sufficient justifiable reasons for such change and the Chairman in such cases at his absolute discretion may grant or refuse without assigning any reason, permission for change of use of plot on such terms and conditions, if any, by recovering such charges as he may deem fit. If the allottee/Lessee makes use of the plot for purpose other than for which it is allotted without obtaining prior permission in writing from the Chairman and/or if the Lessee is dumping/putting such material which adversely affects the soil and sub-soil condition of the plot, if shall amount to breach of terms of allotment and the allotment made will be liable to be cancelled and the lease granted will be determined and all payments made for the said plot like ground rent and premium etc. in respect of the said plot will be forfeited in favour of Kandla Port Trust and in such cases no compensation whatsoever will be payable by Port Trust."
Subsequently, the petitioner herein wanted to establish a Container Freight Station (CFS) on the aforesaid plot and accordingly, PMAL requested KPT to accord its permission to use the plot under lease for CFS and to assign the lease and all other rights therein in the petitioner's favour. By a letter dated 20/21.6.2005, PMAL was informed that permission cannot be granted as their intention to open CFS in the premises cannot be considered because the same shall tantamount to change of use of the premises for which the same had been allotted. Subsequently, by a letter dated 2.9.2005, the PMAL's request for transfer of the plot to the petitioner came to be granted inter alia on the following terms and conditions:
"[b] That the transferees shall be bound by all the covenants and the conditions contained in the lease deed executed by you on 14.12.2004 and be answerable therefore to the lesser in all respects.
[h] The proposed transferee shall use the plot and warehouse only for the purpose of storage and handling of dry cargo as permitted under the relevant tender condition at the time of allotment of plot to the original lessee M/s Parekh Marine Agencies Pvt. Ltd. and they will not use the plot for storage of liquid and hazardous cargo and if the purpose is changed, they will be liable to pay penal rent equivalent to three times to lease rent. Besides this, the proposed transferee shall not establish container freight station on the premises proposed to be transferred to them."
Thereafter, vide KPT's communication dated 14.9.2005 clause (h) came to be substituted by the following:
"Clause No.(h): The proposed transferee shall use the plot and warehouse only for the purpose of storage and handling of dry cargo as permitted under the relevant tender condition at the time of allotment of plot to the original lessee M/s Parekh Marine Agencies Pvt. Ltd., and they will not use the plot for storage of liquid and hazardous cargo and if the purpose is changed, they will be liable to pay penal rent equivalent to three times to lease rent."
Subsequently, PMAL executed sale-cum-transfer deed on 15.9.2005 in favour of the petitioner for a consideration of rupees one crore. By a letter dated 10.2.2005, the Government of India through the Ministry of Commerce & Industry, approved the petitioner's proposal for setting up a CFS at Kandla for handling import and export cargo, subject to the terms and conditions mentioned therein. The Commissioner of Customs, Kandla in exercise of powers conferred by section 8(a) of the Customs Act, 1962, issued Notification No.02/2005 dated 29.9.2005, notifying the said plot "to be placed for loading/unloading of export/import goods subject to strict observance of the relevant provisions of the Customs Act, 1962 and other instructions issued by the Government of India from time to time", and approved the petitioner as a custodian of the aforesaid customs area in respect of all import and export cargo. The petitioner thereafter commenced CFS operations on the said plot on or about 6.10.2005.
By a letter dated 5.12.2005, KPT informed the petitioner that since operation of CFS by any firm other than the Central Warehousing Corporation (CWC) will be in contravention of the agreement entered into between KPT and CWC, the petitioner was advised not to operate the premises allotted to it. The petitioner responded to the said letter by letter dated 14.12.2005.
Vide office memorandum dated 19.12.2006 of the Government of India, Ministry of Commerce & Industry, it was recorded that the meeting was held on 13.12.2006 to discuss the problems being faced by Central Warehousing Corporation at the Kandla Port, a copy whereof was endorsed to the petitioner. Again by a letter dated 8.3.2007, KPT referred to paragraph 6 of the minutes of the meeting held on 13.12.2006 wherein it was observed that M/s Seabird CFS had consciously taken a calculated risk in setting up the CFS fully knowing that the land allotted to them by the KPT was for warehousing and despite being aware of the provisions of the agreement existing between CWC and KPT, they continued with CFS operations in violation of land use. Hence, they may consider relocation of CFS suitably in line with the other private CFS operating in the area. The petitioner was advised to take suitable action to relocate its CFS at the earliest and to stop the operations of CFS from the present premises forthwith. The petitioner gave its reply dated 30.3.2007 stating that the CFS was established after obtaining permission from all appropriate authorities and that all authorities including the Port were properly informed and premises were obtained. By a representation dated 7.9.2007 made to the Secretary, Ministry of Shipping & Transport, the petitioner submitted that in the facts and circumstances set out in the said representation and on a correct reading of the purpose of the lease, the definition of CFS as given by the Government of India and the Policy of the Government of India, it would be noted that there is no violation of the lease by Seabird (the petitioner herein). Consequently, KPT may be directed to close this issue and not to create any impediment for the Seabird to continue its operations in the land leased to it by KPT, for Seabird to carry out its lawful activity under the terms of its lease. The petitioner also requested that a direction be issued to the KPT not to take any precipitating steps under the matter is finally resolved at the Ministry level.
By a notice dated 24.9.2007 issued under clause (3) of the lease deed, the petitioner was called upon to remedy/compound the breach of conditions of lease. In response to the said notice, the petitioner submitted a reply dated 27.9.2007. By a communication dated 1.10.2007, the petitioner was informed that the issues relating to operation of CFS by CWC and other related issues will be discussed in a meeting to be taken by Secretary (Shipping) on 9th October, 2007. Vide communication dated 8.10.2007, the petitioner was informed that the said meeting has been postponed. By a communication dated 16.10.2007 of the Government of India, Ministry of Shipping, Road Transport & Highways, in the context of the representation made by the petitioner, KPT was informed that since the issues involved are scheduled to be discussed in a meeting to be held shortly, it would be appropriate if the Port takes a final decision on the issue, after the meeting is held on 26.10.2007. Thereafter, vide communication dated 1.11.2007 of the Government of India, Ministry of Shipping, Road Transport & Highways, the communication dated 16.10.2007 came to be withdrawn. Subsequently, by a public notice No.49/2007 dated 20.12.2007, the Commissioner of Customs, Kachchh, rescinded the Notification No.02/2005 dated 29.9.2005 appointing the petitioner as Custodian. By a communication dated 16.1.2008 addressed to the KPT, the petitioner through its advocate informed KPT that as and from 28.12.2007, the petitioner had completely stopped the Container Freight Station operations in the said Plot. The petitioner also confirmed that the said Plot shall only be used for warehousing/storage and handling of dry cargo etc., as desired by KPT. It was further stated that the petitioner had carried on CFS operations in the said plot till 28.12.2007, after obtaining necessary and specific permission from the concerned Ministry and Customs. Specific permission of the KPT was not obtained by the petitioner as they believed that KPT is not the Authority in respect of CFS operations. However, CFS was operated with notice to KPT and with due records at the Kandla Port gate and with the KPT. It was further stated that the petitioner having ceased to operate CFS in the Plot leased to them, the petitioner had remedied the alleged breach of conditions and accordingly nothing survives in the matter and as such the notice dated 24.9.2007 be discharged. By a communication dated 4.3.2008, the petitioner was directed to handover vacant and peaceful possession of the plot in question in terms of the order dated 16.1.2008 passed by the Chairman, Kandla Port Trust.
Being aggrieved, the petitioner challenged the order dated 16.1.2008 before this court by way of a writ petition being Special Civil Application No.5225 of 2008. The said petition came to be disposed of as withdrawn, vide order dated 16.9.2008, on the statement made by the learned counsel appearing on behalf of the respondent Kandla Port Trust to the effect that the Chairman, Kandla Port Trust would reconsider the order dated 16.1.2008 for compounding of breach of conditions of lease deed and till then, the order dated 16.1.2008 would not be implemented. It was further observed that in the event, it is decided to determine the lease and resume the land, the same shall be implemented on or after the 15th day from the receipt of the order that may be passed. The petitioner, accordingly, made a representation dated 11.12.2008 to the Chairman, Kandla Port Trust. By the impugned order dated 11.2.2010, which came to be issued on 4.10.2010, the lease granted in favour of the petitioner came to be cancelled and the lease agreement came to be determined. The petitioner was further directed to handover vacant and peaceful possession of the land in question within 15 days from the date of receipt of the said order. Being aggrieved, the petitioner has filed the present petition.
Mr. Mihir Thakore, learned Senior Advocate with Mr. P. R. Nanavati, learned advocate appearing on behalf of the petitioner invited attention to clause 2(vii) of the lease deed, which provides that the lessee shall strictly use the plot, building structure erected thereon only for the purpose for which the allotment is made, that is, godowns / warehouse only. Referring to clause (3) of the lease deed, it was pointed out that under the said clause, in case of change of use for the purpose for which the premises have been allotted, a notice is required to be issued to the lessee to compound/remedy the said breach committed by the lessee within a period of one month. It was submitted that the petitioner was granted the lease on the same conditions as was granted to PMAL. The petitioner had set up a Container Freight Station on the said plot which is basically a warehouse where containers are allowed to be stuffed and de-stuffed. The activity carried out at the CFS established by the petitioner was handling of cargo, that is, dry cargo. It was submitted that in the circumstances, there was no breach of the condition 2(vii) of the lease deed. It was urged that assuming that there is a breach, there is a provision for recovery of penal rent at three times the normal rent.
It was pointed out that that the petitioner started the CFS activities on 6.10.2005 and informed the KPT on 24.11.2005. According to the learned counsel the communication dated 5.12.2005 issued by the KPT has been written only to save itself as by granting permission to the petitioner, the KPT was committing breach of the agreement with the Central Warehousing Corporation. It was submitted that thereafter, for one year, there was no further correspondence by the KPT. It was urged that the CFS was operated lawfully and the petitioner was never in breach of any of the conditions of lease. The Ministry of Shipping had granted permission for operating the CFS and necessary permission from the Commissioner of Customs had also been obtained. It was submitted that in view of the amended clause (h), there was no breach of any of the conditions of the lease and that assuming that there was a breach; the same could be remedied by imposing penalty at three times the normal rent.
Mr. Thakore further submitted that vide letter dated 16.10.2007, the meeting was stated to be held on 26.10.2007. Thereafter, vide letter dated 1.11.2007, the letter dated 16.10.2007 came to be cancelled. This was the last intimation from the Ministry, hence, that should be considered as starting point for computing the period of thirty days for compounding breach under clause (3) of the lease deed. Hence, the last date for compounding would be 1.12.2007, whereas the CFS operations were stopped on 28.12.2007 after a delay of 27 days which cannot be considered to be such a gross delay so as to call for cancellation of the lease, more so, when the petitioner has stated that it would not operate the CFS on the plot.
Inviting attention to the advertisement inviting offers for allotment of plots for construction of warehouses, it was pointed out that the original tender covers processing, storage and handling of dry and non-hazardous cargo and that similar conditions are contained in the original lease deed. It was submitted that there was no condition regarding establishment of CFS in the original lease deed or in the notice inviting tenders and that the said condition came to be introduced for the first time while granting the petitioner's application for transferring of plot vide order dated 2.9.2005 which came to be deleted subsequently vide communication dated 14.9.2005. Referring to the detailed noting of the discussion of the Board of Trustees of the KPT held on 3.9.2005, it was pointed out that a conscious decision had been taken that the condition regarding CFS was not in consonance with the terms and conditions of allotment to PMAL. It was urged that, therefore, in the first place, there is no breach of any condition of the lease, and in any case, the petitioner has admitted that they will not run the CFS. It was submitted that in the circumstances, considering the fact that after the first notice, for a period of one year, no action was taken and the petitioner was permitted to run the CFS, there is no rationale behind terminating the lease for a delay of 21 days in compounding the alleged breach. It was pointed out that since the petitioner had made a representation before the Ministry of Shipping & Transport, which was pending and under consideration, the petitioner had continued with the activities of CFS and had requested that the direction be issued to the KPT not to take any precipitating steps under the matter is finally resolved at the Ministry level. It was pointed out that vide communication dated 16.10.2007, the Government of India, Ministry of Shipping, Road Transport & Highways had informed KPT that since the issues involved are scheduled to be discussed in a meeting to be held shortly, it would be appropriate if the Port takes a final decision on the issue, after the meeting is held on 26.10.2007. After the first communication dated 24.11.2005, the KPT vide notice dated 24.9.2007, had called upon the petitioner to remedy/compound the breach of conditions of lease under clause (3) of the conditions of the lease. It was submitted that thereafter the petitioner had stopped CFS operations on and from 28.12.2007. Since the notice under clause (3) had been issued to remedy/compound breach of conditions on 24.9.2007, thirty days period would expire on 24.7.2007, whereas the petitioner had completely stopped the CFS operations on 28.12.2007. It was, accordingly, urged that if at all it is considered to be a breach, the breach was remedied within a short period and as such, there is no warrant for termination of the lease. It was, accordingly, submitted that the interim relief granted earlier requires to be confirmed and that the petition deserves to be admitted.
Opposing the petition, Mr. K. M. Patel, learned Senior Advocate with Mr. Alpesh Rajpuriya, learned advocate appearing on behalf of the respondents raised a preliminary objection to the very maintainability of the petition. It was submitted that if a matter is governed by contract, a writ petition is not maintainable since it is a public law remedy and it is not available in the private law field. Reliance was placed upon the decision of this High Court in the case of L. H. Mehta and others v. Kandla Port Trust and others, 2011 (3) GLR 1841, wherein the court has held that the question of legality and propriety of lease deed reached between the petitioner and KPT cannot be raised in a proceeding under Article 226 of the Constitution of India. Such lease deed can be challenged, subject to law of limitation before a civil court of competent jurisdiction. Reliance was also placed on the decision of the Supreme Court in the case of Food Corporation of India and others v. Jagannath Dutta and others, AIR 1993 SC 1494, for the proposition that the High Court cannot go into the question of contractual obligation in its writ jurisdiction under Article 226 of the Constitution of India. The decision of the Supreme Court in the case of State of Gujarat and others v. Meghji Pethraj Shah Charitable Trust and others, (1994) 3 SCC 552, was cited for the proposition that termination is not a quasi-judicial act; hence it is not necessary to observe the principles of natural justice. If the matter is a governed by a contract, a writ petition is not maintainable since it is a public law remedy and is not available in private law field, for example, where the matter is governed by a non-statutory contract. Reliance was placed upon an unreported decision of this Court in the case of M/s K. B. Cooper v. Kandla Port Trust and others, rendered on 28.7.1992 in Special Civil Application No.5012 of 1992 wherein the court observed that the question raised in the petition pertains to lease deed and allotment of plot and that such question could very well be agitated before the civil court of proper forum by filing civil suit. The court held that it would not be proper to entertain the petition under Article 226/227 of the Constitution of India for deciding the questions raised in the petition. It was submitted that the present case does not pertain to any statutory contract and as such, the controversy involved arising purely out of contractual matters, the present writ petition under Article 226 of the Constitution is not maintainable and as such, the petition is required to be dismissed on this preliminary ground alone.
On the merits of the case, the learned counsel contended out that the petitioner was bound by the conditions of the original lease deed. Referring to communication dated 2.09.2005 whereby M/s Parekh Marine Agencies Pvt. Ltd. had been granted permission to transfer the plot in favour of the petitioner, it was pointed out that vide clause (b) thereof, the petitioner-transferee was bound by all the covenants and the conditions contained in the lease deed executed by M/s PMAL on 4.12.2004 and was answerable to the lessor in all respects. It was submitted that, in case of change of user, it is true that there is a provision for imposition of penal rent equivalent to three times the lease deed in case of change of user. However, the said penalty is envisaged for the period of such default and not for all times to come; it does not absolve the party from the consequences of breach of contract. Referring to clause 2(vii) of the conditions of lease, it was pointed out that the lessee could use the plot only for the purpose of godowns and warehouses. According to the learned counsel, a godown/warehouse is different from a container freight station inasmuch as, in case of a container freight station, there is no storage and only transit facility. It was contended that a person dealing in marine trade will not understand warehouse to mean a CFS. Reliance was placed on the decision of the Supreme Court in the case of State of Gujarat (Commissioner of Sales Tax, Ahmedabad) v. M/s Variety Body Builders, AIR 1976 SC 2108, for the proposition that when there is a written contract, it will be necessary for the court to find out therefrom the intention of the parties executing a particular contract. That intention has to be primarily gathered from the terms and conditions which are agreed upon by the parties. It was submitted that the lease deed refers to only godowns/warehouses and CFS is not mentioned therein. If the agreement also covered container freight station, there was no question of the petitioner seeking approval for establishment of a CFS, in the circumstances, to say that there is no breach is untenable. It was submitted that the Government guidelines specifically recognize CFS to be different from warehouse and in terms say that it is a transit facility. The petitioner also knew about it, else they would not have sought for permission to establish a CFS. It was submitted that on the basis of deletion of clause (h), the petitioner cannot be heard to say that they are entitled to set up a container freight station. The attention of the court was drawn to the fact that in respect of deletion of clause
(h), inquiry had been made and that proceedings under the Prevention of Corruption Act have been initiated pursuant to which charge-sheet has been filed and that other investigations are also going on.
As regards the approval granted by the Ministry of Shipping to the petitioner for establishment of a container freight station, it was submitted that grant of such approval does not mean that KPT has granted permission to the petitioner for setting up a container freight station. Referring to the provisions of the Major Ports Trusts Act, 1963, it was pointed out that KPT is a separate and independent entity as per section 5 thereof. The petitioner had made an application to the Government of India, Ministry of Commerce and Industry for setting up a container freight station on 14.1.2005 and thirty days time had been granted for KPT to send its comments. However, before the expiry of thirty days, on 10.2.2005, permission had already been granted to the petitioner. Inviting attention to the averments made in the affidavit in-reply filed by the respondents as well as to the communication dated 26/28.6.2007 addressed by KPT to the Commissioner of Customs, it was pointed out that KPT has right from the beginning, objected to the grant of permission to the petitioner to set up a container freight station and as such approval by the Ministry is of no consequence. Moreover, it was not permissible for KPT to agree to the petitioner setting up a container freight station in view of its agreement with the Central Warehousing Corporation.
Next it was submitted that the petitioner had been issued notice on 5.12.2005 to stop CFS operations. Thereafter another notice came to be issued on 8.3.2007 calling upon the petitioner to relocate the CFS in line with other private CFS operations in the area. The petitioner was, accordingly, required to stop the CFS operations and remedy the breach and compound the offence. However, the petitioner continued with the operations consciously till the customs authorities revoked the notification appointing the petitioner as a custodian. It was submitted that since there was no compliance with the notice issued by KPT, the consequences must follow. According to the learned counsel KPT had submitted objections vide communication dated 26/28.6.2007, and as such there is no acquiescence on its part as regards setting up a container freight station by the petitioner is concerned. In support of his submission the learned counsel placed reliance upon the decision of the Supreme Court in the case of United Bank of India v. Satyawati Tondon and others, AIR 2010 SCW 5267. It was, accordingly, submitted that the petitioner having committed breach of the conditions of the lease and not having remedied/compounded the same in accordance with the conditions of the lease, the respondent KPT was justified in terminating the lease and that the petition being devoid of merit, deserves to be dismissed at the threshold.
In rejoinder, in respect of the preliminary objection raised as regards the maintainability of the writ petition Mr. Mihir Thakore, learned counsel for the petitioner invited the attention of the court to the decision of the Supreme Court in the case of Harbanslal Sahnia and another v. Indian Oil Corporation Ltd. and others, (2003) 2 SCC 107, wherein it has been held that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; and (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. Reliance was also placed upon a decision of the Supreme Court in the case of Union of India and others v. Tantia Construction Private Limited, (2011) 5 SCC 697, wherein the court has held that on the question of maintainability of a writ petition on account of the arbitration clause included in the agreement between the parties, it is now well established that an alternative remedy is not an absolute bar to the invocation of the writ jurisdiction of the High Court or the Supreme Court and that without exhausting such alternative remedy, a writ petition would not be maintainable. The constitutional powers vested in the High Court or the Supreme Court cannot be fettered by any alternative remedy available to the authorities. Injustice, whenever and wherever it takes place, has to be struck down as an anathema to the rule of law and the provisions of the Constitution. The court held that notwithstanding the provisions relating to the arbitration clause contained in the agreement, the High Court was fully within its competence to entertain and dispose of the writ petition filed on behalf of the respondent Company. Reliance was also placed upon the decision of the Supreme Court in the case of ABL International Ltd. and another v. Export Credit Guarantee Corporation of India Ltd. and others, (2004) 3 SCC 553, wherein the Supreme Court has held that a writ petition involving serious disputed questions of fact which require consideration of evidence which is not on record, will not normally be entertained by a court in the exercise of its jurisdiction under Article 226 of the Constitution, but there is no absolute rule that in all cases involving disputed questions of fact, the parties should be relegated to the civil court. Mr. Thakore, accordingly, submitted that in the facts of the present case, apart from the fact that the controversy in issue does not involve disputed questions of fact and revolves around the interpretation of clauses of the lease deed, as held by the apex court in the said decision, there is no bar against the court to exercise its jurisdiction under Article 226 of the Constitution.
In the light of the rival submissions advanced by the learned counsel for the respective parties, the first question that arises for consideration is as to whether the present writ petition under Article 226 of the Constitution of India is maintainable.
The order which is impugned in the present petition is an order passed by the respondent No.1 cancelling the lease in favour of the petitioner on account of breach of the conditions of the lease deed. From the rival submissions advanced by the learned advocates for the respective parties, it is apparent that the controversy involved in the present case also pertains to the interpretation of the terms and conditions of the lease agreement. Since both the parties have placed reliance upon various decisions of the Supreme Court on the question of maintainability of the writ petition, it may be germane to advert to the same.
Reference may be first made to the decisions on which reliance has been placed on behalf of the respondents. Insofar as the unreported decision of this court rendered in Special Civil Application No.5012 of 1992 is concerned, the said decision, does not lay down any proposition of law. The court has merely refused to entertain the petition which raised questions pertaining to lease deed and allotment of plot. In the case of Food Corporation of India and others v. Jagannath Dutta and others (supra), the Supreme Court has held that the High Court was not justified in quashing the notice especially when the terms and conditions of the contract permitted the termination of the agreement by either of the parties. The court held that the High Court should not have gone into the question of contractual obligation in its writ jurisdiction under Article 226 of the Constitution. It was held that even otherwise, the High Court misread the documents on the record and grossly erred in reaching the conclusion that no policy decision was taken by the FCI to terminate the storage agencies in the State of West Bengal. A perusal of the said decision indicates that the petitioner in the said case had challenged the termination notice on the ground that some of the clauses of the lease deed were violative of Article 14 of the Constitution. It is in the light of the peculiar facts of the said case that the Supreme Court held that the High Court was not justified in going into the questions of contractual obligation in its writ jurisdiction. In the case of L. H. Mehta and others v. Kandla Port Trust and others (supra), a Division Bench of this court had, in a case where the lease deed had been challenged in the writ petition, held that it was not open for the petitioner to assail the same before this court. The court held that the petitioners therein could not raise the question of legality and propriety of the lease deed reached between them and KPT in a proceeding under Article 226 of the Constitution of India and that, such lease deed can be challenged, subject to the law of limitation before a civil court of competent jurisdiction. Adverting to the facts of the present case, the lease deed entered into between KPT and the petitioner is not subject matter of challenge. It is only the impugned order terminating the lease which has been challenged mainly on the ground of interpretation of the clauses of the lease deed. In the circumstances, the said decision would not be applicable to the facts of the present case. In State of Gujarat and others v. Meghji Pethraj Shah Charitable Trust and others (supra), the Supreme Court held that if the matter is governed by a contract, a writ petition is not maintainable since it is a public law remedy and is not available in private law field, for example, where the matter is governed by a non-statutory contract. In the opinion of this court, the said decision does not lay down any absolute proposition of law that in every case pertaining to contract, a writ petition is not maintainable.
As regards the decisions on which reliance has been placed on behalf of the petitioner, the Supreme Court in Harbanslal Sahnia and another v. Indian Oil Corporation Ltd. and others (supra) has held that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In Union of India and others v. Tantia Construction Private Limited (supra), the Supreme Court has held that it is now well established that an alternative remedy is not an absolute bar to the invocation of the writ jurisdiction of the High Court or the Supreme Court and that without exhausting such alternative remedy, a writ petition would not be maintainable. The court held that the constitutional powers vested in the High Court or the Supreme Court cannot be fettered by any alternative remedy available to the authorities. Injustice, whenever and wherever it takes place, has to be struck down as an anathema to the rule of law and the provisions of the Constitution. In ABL International Ltd. and another v. Export Credit Guarantee Corporation of India Ltd. and others (supra), the Supreme Court had held that a writ petition involving serious disputed question of fact which requires consideration of evidence which is not on record, will not normally be entertained by a court in the exercise of its jurisdiction under Article 226 of the Constitution, but there is no absolute rule that in all cases involving disputed questions of fact, the parties should be relegated to the civil court.
In the light of the principles enunciated in the aforesaid decisions, it is apparent that there is no absolute bar to the High Court entertaining a writ petition in relation to contractual obligations. From the facts noted hereinabove, it appears that the present case does not involve disputed questions of fact and mainly pertains to interpretation of terms of the lease deed. In the circumstances, it cannot be said that the writ petition is not maintainable. Besides considering the fact that the petition has been entertained by issuing notice, this court does not find any reason to non-suit the petitioner at this stage on the ground of availability of an alternative remedy. In the circumstances, the contention that the present writ petition is not maintainable is hereby rejected.
Adverting to the merits of the case, it is the case of the respondents that the petitioner herein has committed breach of the conditions of the lease by operating CFS on the plot in question. According to the respondents, operating a CFS is in breach of condition 2(vii) of the lease deed which provides that the lessee shall strictly use the plot, building structure erected thereon only for the purpose for which the allotment is made i.e. Godowns/Warehouses only. According to the respondents, operating a CFS does not fall within the ambit of clause 2(vii) of the lease deed and as such, amounts to change of user and as such, it was not permissible for the petitioner to make use of the plot for CFS without obtaining prior permission in writing from the Chairman. That in the absence of any such permission having been obtained, there was a breach of condition. It is further the case of the respondents that under clause (3) of the lease deed, in case there is any breach in the opinion of the Chairman, KPT on the part of the lessee or his agent or any of the terms and conditions of allotment and/or terms of offer of allotment and/or terms of the lease deed including the covenants regarding construction of structures within the stipulated period, use of land, change of use for the purpose for which the premises have been allotted, payment of premium, ground rent, deposit and any other charges etc., a notice will be issued to the lessee to compound/remedy the said breach committed by the lessee within a period of one month. In the event the lessee fails or neglects to compound/remedy the breach committed by him to the satisfaction of Chairman, KPT within the stipulated period of one month, the allotment of land will be cancelled and the lease determined by KPT with immediate effect by giving a notice of cancellation of allotment and/or determination of the lease to the party and in such an event all the payments made by the lessee for the said plot towards premium, ground rent, deposit and other outgoings if any, will be forfeited in favour of KPT and the lessor shall be at full liberty to re-allot/release the plot to others. According to the respondents, despite the notice having been issued to the petitioner, the lessee, the breach was not compounded/remedied within the prescribed period of one month and as such, KPT became entitled to determine the lease.
On behalf of the petitioner, it has been contended that operating a CFS would fall within the ambit of clause 2(vii) of the lease deed, namely, user of the plot for the purpose of godowns/warehouses only. Reliance has also been placed upon the advertisement dated 7.6.2002 inviting tenders for allotment of plots for construction of warehouses wherein it has been stated that the land is to be utilized for construction of warehouses and for processing, storage and handling of dry and non-hazardous cargo, liquid cargo will not be allowed to be handled. It is the case of the petitioner that the plot in question is being used for processing and handling dry and non-hazardous cargo inasmuch as, de-stuffing and stuffing containers which is the activity carried out in the CFS, amounts to processing and handling of dry and non-hazardous cargo. It is the specific case of the petitioner that liquid cargo is not being handled on the plot in question. Thus, according to the petitioner the activities carried out by it fall within the ambit of clause 2(vii) of the lease deed and as such there is no breach of any condition of the lease deed so as to call for invocation of clause (3) of the lease deed. It is the case of the petitioner that in any case, the petitioners have stopped operating the CFS on the plot in question and have also stated that they would not be carrying out such activities in future. That the delay in remedying/compounding the alleged breach is only of 27 days in the light of the explanation tendered by the petitioner.
Thus, the controversy involved in the present case is as to whether the activity of operating a container freight station on the plot in question would fall within the ambit of clause 2(vii) of the lease deed. On behalf of the petitioner, it has been contended that the activities of CFS amounts to handling or processing of non-hazardous cargo and that the purpose for which the plot is used is for warehouses/godowns, whereas according to the respondents, the CFS provides only transit facilities where there is stuffing and de-stuffing and that there are no storage facilities. The petitioner has placed reliance upon the Government of India Guidelines for setting up Inland Container Depot (ICD) and Container Freight Station (CFS) in India, wherein "Container Freight Station"
has been defined as a common user facility with public authority status equipped with fixed installations and offering services for handling and temporary storage of import/export laden and empty containers carried under customs control and with Customs and other agencies competent to clear goods for home use, warehousing, temporary admissions, re-export, temporary storage for onward transit and outright export. Transhipment of cargo can also take place from such stations. Thus, as per the definition of "Container Freight Station" under the Guidelines of the Government of India, the same offers services for handling and temporary storage of import/export laden and empty containers. Thus, the petitioners have an arguable case as to whether or not the Container Freight Station would fall within the ambit of condition 2(vii) of the lease deed. In case it is ultimately held that the petitioner falls under section 2(vii) of the lease deed, there would be no question of breach of conditions of the lease deed so as to call for invocation of clause (3) of the lease deed. In the circumstances, at this stage, while considering the question of grant of interim relief, the petitioners have been able to make out a prima facie case for grant of interim relief and for admission of the petition.
In the light of the aforesaid discussion, Issue Rule. Ad-interim relief granted earlier shall continue till the final disposal of the petition subject to the condition that, as stated by the petitioners, they will not use the plot in question for operating Container Freight Station.
[HARSHA DEVANI, J.] parmar*