Gujarat High Court
L vs Kandla on 17 September, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/1045/2010 3/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1045 of 2010
=========================================================
L
H MEHTA & 3 - Petitioner(s)
Versus
KANDLA
PORT TRUST & 2 - Respondent(s)
=========================================================
Appearance
:
MR
NV ANJARIA for
Petitioner(s) : 1 - 4.
MR DHAVAL D VYAS for Respondent(s) :
1,
NOTICE SERVED BY DS for Respondent(s) : 2 -
3.
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 17/09/2010
ORAL
ORDER
Heard learned advocate Mr. NV Anjaria on behalf of petitioner, learned senior advocate Mr. KM Patel with learned advocate Mr. DD Vyas on behalf of respondent.
In this matter, notice has been issued by this Court on 4/2/2010 made it returnable on 19/2/2010. Meanwhile, ad interim relief in terms of para 10(I) granted on condition that if petitioner eventually failed in this petition, they shall make necessary payments.
I have considered averment made in this petition and also considered challenged made by present petitioner in present petition. The petitioner no. 2 is Gandhidham Property Dealers Association through its President LH Mehta who is petitioner no. 1. The respondent is Kandla Port Trust and his officer as well as Tariff Authority for Major Ports an authority created under Major Port Trusts Act, 1963. The relevant averment made in petition in para 1/1 to 1/4 are quoted as under:
1.1 Petitioner No. 1 LH Mehta is resident of Gandhidham and he is the lessee owner of leasehold rights of residential plot No. 111, Sector 2 in the township of Gandhidham. He is a social worker and President of petitioner No. 2 Association. He is before this Honourable Court in his individual capacity as well as in the capacity of President.
1.2 Petitioner no. 2 Gandhidham Property Dealers Association is an association formed with an object to provide a platform to the grievances of inhabitants of the town relating to property matters and the association collectively works to solve property related grievances of the individuals by representing before the authorities like Kandla Port Trust, Sindhu Resettlement Corporation, Gandhidham Municipality, Gandhidham Development Authority or other concerned authority, government or semi government. The role of petitioner no. 3 Association as a helping hand to the inhabitants of the town of Gandhidham is important in as much as the whole town of Gandhidham and surrounding area comprise of plots of land, as elaborated hereinafter, which was developed originally with a view to boost the coming up of the port of Kandla after independence.
1.3 Petitioner No. 3 is the lessee owner of leasehold rights of Plot No. A-119 from Kandla Port Trust, in the area known as Bhaipratapnagar, situated at Gandhidham. He occupies the plot having purchased from Smt. Devishanker Bachwani by registered deed dated 25/1/2006. Petitioner no. 4 is a member of Gandhidham Chamber of Commerce and Industries, Gandhidham and is actively associated with various social and Gandhidham Township activities. He is a lessee owner of leasehold rights of plot at Adipur Kachchh and his locus standi as well as the status of plot held by him bear a similar nexus with the plot in the Gandhidham Township.
1.4 All the petitioners are in their locus standi similarly aggrieved by the effect and consequence of the decision impugned in the petition and the nature of challenge, which are stated in paragraph 3 hereinafter. The issue raised in the petition is with regard to the legality of Transfer Fee levied by the respondents and validity of exercise of powers for the same under Major Port Trusts Act, 1963.
The issue and the subject matter affects the entire populace of the plot holders in the Gandhidham Township and all the residents and inhabitants in the Township are affected persons. The petitioners herein therefore, bring their grievances before this Honourable Court not only in their own capacity as aggrieved persons, but also respectfully submit that the present petition may be treated in representation capacity under Order 1 Rule 8 of Code of Civil Procedure, 1908 and/or the principles analogous thereto.
As against that affidavit in reply is filed by respondent no. 1 at page 192, which has been corrected and amended copy placed on record by respondent no. 1, which is at page 210. The relevant para 3 and 4 are quoted as under:
3. It is respectfully submitted that, petition in the natures as filed, is not maintainable. It is submitted that, considering the nature of relief's prayed by the petitioner, it would essentially be a public interest litigation, which is for some oblique reason not filed so.
It is submitted that the writ petitions are not maintainable to be filed in the representative capacity that too on invocation of Order 1 Rule 8 of the Code of Civil Procedure, 1908.
4. It is submitted that the nature of relief prayed for is essentially within the contractual domain. It is submitted that the prayers are essentially challenging the contractual terms, of lease deed and, therefore, it would be for the petitioner, if within a right, to file an appropriate proceedings in accordance with law. I say that, in the circumstances the writ petition involving extra ordinary prerogative and discretionary jurisdiction of this Honourable Court, would not be maintainable for such a challenge.
The affidavit in rejoinder filed by petitioner against affidavit in reply of respondent no. 1 is at page 205. The averment made by both parties and challenged of petitioner is at page 43 to 48, which are quoted as under:
The present petition seeks to place before this Hon'ble Court threefold challenges as under:
(i) The petitioners challenge the very rationale, legality and validity of, and the authority in law of the respondents in levying Transfer Fee in the nature of Development Charges at every instance of inter-se transfer of plot between private persons.
(ii) Petitioners challenge the Resolution by the Board of Trustees of Kandla Port Trust dated 07/07/2009 and the consequential circular dated 29/10/2009 whereby the Transfer Fee in respect of transfer and sale of leasehold rights of a particular plot is sought to be levied retrospectively with effect from 01/01/2004, thereby demanding the payment of Transfer Fee also in respect of those transactions of transfer/sale already completed in all respects in past.
(iii) It is the further challenge without prejudice and in the alternative to (i) and (ii) above that even if the respondents are presumed for the sake of arguments to have powers to charge Transfer Fee in respect of the transactions of transfers of plots, the basis and the criteria adopted for determining the Transfer Fee is artificial, unrealistic, arbitrary and very antithetic to the underlying purpose of levy of Transfer Fee.
*The petitioners' challenge are on the grounds broadly stated as under:
(a) The respondent Kandla Port Trust is only an agent and manager on behalf of the Government of India in respect of leasing out of the subject matter lands. Therefore, respondents are not entitled in law for levy of Transfer Fee. Even Kandla Port Trust's authority to act as an agent is not being established in law.
(b) Even if it is assumed that, respondent Kandla Port Trust has such authority on behalf of Govt. of India, the lands are claimed to have been vested under the provisions of Major Port Trust Act, 1963. The powers under the Act and more particularly sections 47 to 50 of the Act can be used for the purposes of the Port and port related activity so as to entitle the Kandla Port Trust to levy Port tariffs and charges and not otherwise.
(c) Therefore, neither Respondent no. 3 Tariff Authority of India can not be said to be validly drawing powers to approve Transfer Fee to be leviable by Kandla Port Trust in the plots within the Gandhidham Township and purported exercise such powers from Sections 47 to 50 or any other provision of the Major Port Trusts Act, 1963, tantamount to colorable exercise of powers.
(d) The Development Charges having been already levied in the first instance, the Transfer Fee based upon the Development Charges can not be justified in as much as after initial leasing the plot, the KPT does not play any role and does not in any way contribute to the development of the plot. The charging of Transfer Fee in connection with every subsequent transfer is irrational. It amounts to profiteering. It is also de hors the powers on law.
(e) The Transfer Fee in its nature of levy becomes fee without quid pro quo. In the facts and circumstances, it is like a compulsory exaction, a kind of tax without authority in law.
(f) The levy of Transfer Fee is unreasonable fetter on disposition. It is in contravention of provisions of the Transfer of Proper Act, 1882.
The same is also violative of Article 300 A read with Article 14 of the Constitution of India.
(g) The retrospective levy of Transfer Fee from 01/01/2004 contemplated in the circular at Annexure A is not permissible in law. Further, in any case, can not be justified in law by any yardstick in its criteria of levy as well.
In light of aforesaid pleadings between parties and considering challenged made by petitioner, according to my opinion, this matter may be considered as Public Interest Litigation. Therefore, Registry is directed to place this matter before Hon'ble Chief Justice of Gujarat High Court for necessary order. Meanwhile, ad interim relief granted by this Court shall remain continue till next date of hearing.
(H.K.RATHOD, J) asma Top