Calcutta High Court
Sara International Ltd. & Anr vs The Board Of Trustees For on 23 February, 2009
Author: Indira Banerjee
Bench: Indira Banerjee
Order Sheet Serial No........
G.A.3941 of 2008
W.P. 1199 of 2006
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
In the matter of :
SARA INTERNATIONAL LTD. & ANR.
Vs
THE BOARD OF TRUSTEES FOR
THE PORT OF KOLKATA & ORS.
Before:
The Hon'ble Justice
INDIRA BANERJEE
Date: 23.02.2009
JUDGMENT
In this writ application, the petitioner has inter alia sought orders on the respondent to extend and/or renew the licence granted to the petitioner for occupation of a plot of land being plot No.HAL-1435 (8) at the Haldia Dock Complex, measuring about 3000 square metres owned by the respondent No.1, hereinafter referred to as KPT.
The facts giving rise to this writ application are very briefly enumerated hereinafter.
On or about 1 st September, 2004, the petitioner company was allotted the said plot of land on licence for the period from 1 st September, 2004 to 31 st December, 2004.
On 24 th May, 2005 KPT extended the licence till 15 th June, 2005 imposing for the first time, the condition of Minimum Guarantee Throughput (MGT) and the petitioner was required to furnish bank guarantees.
By a letter dated 4 th January, 2006, the licence was again renewed from 16 th October, 2005 to 15 th February, 2006. For failure of the petitioner to fulfil the MGT condition, for two consecutive terms, the respondents have not only refused to further renew the licence but has also refused to permit the petitioner to remove the goods till full payment of the licence fee and other charges.
Mr. Anindya Kumar Mitra appearing on behalf of the petitioner submitted that Section 49 of the Major Port Trusts Act, 1963, hereinafter referred to as the said 1963 Act empowered only the Tariff Authority framed under Section 47A to frame the scale of rates and conditions for letting out the properties of KPT. The Tariff Authority had not imposed MGT conditions. As such KPT had no jurisdiction to impose MGT conditions.
Mr. Mitra argued that Section 50C of the said 1963 Act mandates publication of notification, order etc. of the Tariff Authority in the Official Gazette. The condition of imposing MGT was not notified in the Official Gazette and was thus a nullity.
Mr. Mitra referred to Section 132 of the said 1963 Act which provides that any notification issued by the Board must be published in the Official Gazette of the State in which the port is situated, that is, Calcutta Gazette, and any notification of the Central Government or the Tariff Authority, in the Gazette of India. The MGT conditions were not published in either of the Gazettes.
Mr. Mitra submitted that the power to frame scales has been conferred on the Tariff Authority for uniformity in dealing with grantees and to avoid discrimination and the same was in public interest. The imposition of MGT conditions is discriminatory. No case of discrimination in imposition of the condition of MGT has been made out.
Mr. Hirak Kumar Mitter appearing on behalf of the KPT authorities referred to Section 111 of the said 1963 Act under which KPT was, in discharge of its functions under the said 1963 Act, bound by the directions given by the Central Government to KPT in writing on questions of policy.
By a Circular No.PT-17011/55/87-PT dated New Delhi, the 8th March, 2004, the land policy for major ports formulated by the Central Government was circulated to the Chairman of all major trusts except KPT and Mumbai Port Trust. The said land policy which was not initially applicable to KPT and Mumbai Port Trust, was later made applicable to KPT.
Under cover of a letter No.PT-17011/32/2000-PT dated the 10 th February, 2005, the Central Government forwarded the said land policy to the Chairman, KPT. KPT was informed that the said land policy would be applicable to KPT with immediate effect.
In view of Section 111 of the said 1963 Act, KPT is bound by the direction given vide the letter dated 10th February, 2005 referred to above, to implement the land policy of the Central Government for major port trusts.
The said land policy of the Central Government read with letter dated 10 th February, 2005 empowers KPT to prescribe MGT Conditions for fresh licence, if deemed fit.
Mr. Mitter pointed out that KPT had, at its Board meeting held on 18 th May, 2005 adopted the land policy of the Central Government and imposed MGT. The basis for imposition of MGT condition was also laid down.
Mr. Mitter pointed out that in fixing MGT, the Board had followed the scale of rates approved by the Tariff Authority. TAMP had also prescribed the terms and conditions which had been published in the Gazette of India Extraordinary dated 2 nd December, 1999. One of the terms and conditions is extracted hereinbelow:
"The licensee shall agree to comply with all Rules and directions issued by HDC/KPT from time to time. If the licensee neglects to comply with such Rules or directions, HDC/KPT may terminate the licence."
In any case, TAMP by its notification dated 8 th March, 2005 has published its revised guidelines. The notification has apparently been published in the Gazette of India on 31 st March, 2005. The guidelines inter alia provide that guidelines issued by the Central Government from time to time would be followed by TAMP. Government has directed imposition of MGT condition in respect of lease.
It is difficult to accept the submission that the Government directions with regard to imposition of MGT conditions cannot be applied in this case, as there was a licence. The use of the nomenclature "lease" or "licence" would make no difference. The petitioner also understood the revised TAMP guidelines to apply to licences of the kind granted to the petitioner and accordingly agreed to the condition of MGT.
The revised TAMP guidelines apply to all matters governed by the guidelines including use of properties as provided in paragraph 1.4.1(ii) of the TAMP guidelines.
The respondent authorities proceeded on the basis of a possible interpretation of the TAMP guidelines read with the land policy of the Central Government for major ports that the MGT condition could be applied in case of a licence.
There is no such infirmity in the action of KPT as to warrant interference of the Writ Court. The Writ Court does not sit in appeal over administrative decisions.
The petitioner has, in any case, accepted the MGT condition and furnished bank guarantee. Having accepted licence on condition of imposition of MGT, the petitioner company cannot turn around and question the failure of KPT to renew the licence, upon its failure to keep its MGT commitment.
The licence being terminable, and in any case, the same having expired there can be no question of interference of this Court in exercise of jurisdiction under Article 226 of the Constitution of India.
Even after the expiry of the licence, the petitioner chose to remain in wrongful occupation of the said plot along with its materials. The petitioner company thus rendered itself liable to damages. KPT has a right of lien in respect of the goods and/or property of the petitioner company until as its rates including charges for occupation/wrongful occupation of the said plot are realized.
The writ application is thus dismissed.
(Indira Banerjee, J.) Later:
Mr. Sarkar, learned Advocate appearing on behalf of the petitioners, prays for stay of the operation of the order.
The prayer for stay is considered and rejected.
Urgent xerox certified copy of this order, if applied for, be supplied to the parties upon compliance of requisite formalities.
(Indira Banerjee, J.) (sent to server on 22.4.09)