Gujarat High Court
Iffco vs Union Of India & on 22 March, 2013
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
IFFCO....Petitioner(s)V/SUNION OF INDIA C/SCA/2607/2012 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 2607 of 2012 ================================================================ IFFCO....Petitioner(s) Versus UNION OF INDIA & 3....Respondent(s) ================================================================ Appearance: SHRI K.S.NANAVATI, SENIOR ADVOCATE for NANAVATI ASSOCIATES, ADVOCATE for the Petitioner(s) No. 1 MR DHAVAL D VYAS, ADVOCATE for the Respondent(s) No. 2 MR PS CHAMPANERI, ASSISTANT SOLICITOR GENERAL for the Respondent(s) No. 1 , 4 NOTICE SERVED BY DS for the Respondent(s) No. 3 ================================================================ CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 22/03/2013 ORAL ORDER
The present Petition has been filed by the Petitioner under Articles 14, 19(1)(g) and 226 of the Constitution of India as well as under the Major Port Trusts Act, 1963 for the prayers:
(A) Your Lordships may be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other Writ, Order or Direction directing the Respondent No.1-Ministry of Shipping (Govt. of India) to dispose off the application for renewal of lands of Petitioner at the earliest by exercising powers under Section 54 of the Act and fixing rate commensurate and appropriate to the nature of the industry of the Petitioner;
(B) Your Lordships be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other Writ, Order or Director quashing and setting aside the Bills of Compensation issued on 19.2.2011 annexed at Annexure (colly) upon the Petitioner addressing it as unauthorised occupant of Respondent No. 2 s property (C) Your Lordships be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other Writ, Order or Direction directing Respondent No.2 to exercise powers under the Act and the conditionality clause available in order of TAMP dated 28.8.03 and renew the lease at a rate commensurate and appropriate to the nature of the industry and the situation of the Petitioner in vital public interest.
(D) Your Lordships may be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other Writ, Order or Direction directing the Respondent No.2 to correctly apply category B2 to the Petitioner and charge rate accordingly and recover upfront premium based on such rate for the entire period of the agreement instead of applying change of slab.
(E) Your Lordships may be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other Writ, Order or Direction directing the Respondent No.2 to apply the rate of prevalent on the date of renewal for calculation of the upfront premium instead of as prevalent upon receipt of approval of Government.
(F) Pending the final disposal of the present petition, Your Lordships be pleased to stay the operation and implementation of the Bills of Compensation at Annexure AA (colly);
(G) Any other reliefs that may be deemed just and proper may kindly be granted.
Heard learned Senior Counsel Shri K.S.Nanavaty appearing for Nanavaty Associates for the Petitioner. Learned Senior Counsel Shri Nanavaty has referred to the papers and submitted that the Petitioner has been given the piece of land on lease for a period of 30 years in the year 1971 which expired in the year 2001. Learned Senior Counsel Shri Nanavaty submitted that the another piece of land was also given on a lease for 30 years in the year 1978, which is Phase-II and Phase-III. Learned Senior Counsel Shri Nanavaty submitted that an application for renewal has been made in the year 2006, which has not been considered. He submitted that as per the Resolution of Kandla Port Trust produced at page 319, the recommendation has been made for renewal of the lease allotted to the Petitioner for another 30 years on payment of the premium as stated in the Resolution according to the land policy. Further, it is also stated that under Section 34 of the Major Port Trust Act, 1963, the proposal to be sent by IFCO has been made, but the land policy, which is required to be finalized, the decision has not been taken. Learned Senior Counsel Shri Nanavaty submitted that the authority under the Major Port Trust Act, 1963 is required to decide the rates as provided under Section 49 of the Act. He therefore submitted that the rates have been prescribed depending upon various types / classification of the land, which is stated on page 197 produced with other order dated 25.3.2011 by the Tariff Authority of Major Port Trust under the Act. Learned Senior Counsel Shri Nanavaty submitted that the land in question of the Petitioner would be falling in category B and not in category A . He therefore submitted that again for the relevant period in the year 2006 and 2008 the tariff rates applicable should be considered. However, the bill of compensation has been raised on yearly basis, and therefore, the present Petition has been filed. Learned Senior Counsel Shri Nanavaty submitted that the delay in deciding the policy / land policy, or the decision with regard to the classification / category, in which the land in question would fall, which in turn will decide the rate, may not be at the cost of the Petitioner, and the Petitioner may not be penalized. He submitted that the Petitioner is also a Farmer Cooperative Society working in the national interest, and therefore, the present Petition may be admitted and the appropriate orders may be passed.
Per contra, learned Assistant Solicitor General Shri P.S.Champaneri has referred to the papers in detail and tried to submit referring to the undertaking of the Petitioner as well as the provisions of the Major Port Trust Act 1963 that the Tariff Authority of Major Port Trust is the authority for deciding the rates and the revision of structure of the Kandla land. He has therefore submitted that the Tariff Authority for Major Port has determined the rates which are produced at page 197 and 209 and the Petitioner is required to pay for the same. He also submitted that there is a litigation pending before the Hon'ble Delhi High Court which has caused some delay in taking the various decisions. He therefore submitted that the petition may not be entertained and in any case the Petitioner may be directed to pay the amount and the rate as fixed by the Tariff Authority for the Major Ports.
Learned Counsel Shri Dhaval Vyas appearing for the Kandla Port Trust has stated that they have to carry out and implement the policy as decided by the Union of India. Therefore appropriate order may be passed.
In view of this rival contentions and considering the submissions, which have been made on the basis of the provisions of the Major Port Trust Act and the rate prescribed by the Tariff Authority of the Major Port Trust and also the undertaking, which has been referred to by the learned Assistant Solicitor General, the background regarding the land policy for the Major Port, which is also produced, is required to be considered. Therefore, the Tariff Authority for Major Ports has also addressed a letter dated 29.4.2010 with regard to the proposal of Kandla Port Trust for revision of the rate structure of the Kandla land of Kandla Port Trust, which is produced at Annexure-Q. The rates, which have been proscribed, as stated by learned Assistant Solicitor General produced at page 197 and 209 referred to the classification of the category of the land, i.e. whether the land having water front upto half mile or the land within half mile from the bank of the creek and no water front, or whether the plots are abutting on main road etc. The contentions or submissions with regard to whether the land in question would fall in category A having a water front for which a different rate is applicable or whether the land in question would fall in category B , which is half mile from the bank of the creek having no water front. Again, the category B has also sub categories. Therefore, the Tariff Authority of Major Ports ( TAMP ) is required to consider this aspect. Though the TAMP has passed an order for fixing the rates of lease in respect of different categories of land is one thing, however, whether the land in question would be classified and covered in which category, is a different thing. It is required to be considered on the basis of the classification for the tariffs decided by the TAMP after hearing all concerned. Therefore, it can be decided finally at the time of hearing in detail.
Hence, the following order is passed:
Rule.
However, the interim relief is required to be granted subject to the condition that the Petitioner shall pay and continue to pay at least on the basis of the rate fixed in respect of the category B without prejudice to the rights and contentions of the parties. It is also clarified that it is only as and by way of interim arrangement till the issues are decided by the Court, or appropriate decision is taken by the authority, i.e. Tariff Authority for Major Port, depending upon the classification. It will not be treated as having created any right or precedent in favour of the Petitioner in any manner and the Petitioner shall not claim any benefit on the basis of the order, which is passed only as and by way of interim measure.
The Petitioner shall also file an undertaking that they will regularly deposit the amount as directed herein above and will not claim any right on the basis of the present interim order and may be subject to the final outcome of this petition.
The amount which may fall due by the petitioner shall be deposited with the Kandla Port Trust within a period of 4 weeks from today.
(RAJESH H.SHUKLA, J.) JNW Page 7 of 7