Gujarat High Court
Shiv Transport Company Thro Its ... vs State Of Gujarat Thro The Secretary on 22 October, 2020
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/894/2012 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 894 of 2012
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2012
In R/SPECIAL CIVIL APPLICATION NO. 894 of 2012
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 894 of 2012
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SHIV TRANSPORT COMPANY THRO ITS PROPREITOR
Versus
STATE OF GUJARAT THRO THE SECRETARY & 4 other(s)
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Appearance:
MR SI NANAVATI, SR. ADVOCATE WITH MR NIRAL R MEHTA(3001) for
the Petitioner(s) No. 1
MR G H VIRK(7392) for the Respondent(s) No. 2
MS MANISHA LAVKUMAR, GOVERNMENT PLEADER WITH MR ISHAAN
JOSHI, AGP (1) for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 3,4
NOTICE UNSERVED(8) for the Respondent(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
Date : 22/10/2020
COMMON ORAL ORDER
Heard learned senior advocate Mr.S.I. Nanavati assisted by learned advocate Mr.Niral Mehta for the petitioner, learned Government Pleader Ms.Manisha Lavkumar with learned Assistant Government Pleader Mr.Ishaan Joshi for respondent No.1-State and its authorities-respondent Nos.3 and 4 and learned advocate Mr.G.H. Virk for respondent No.2-Gujarat Maritime Board.
1.1 In the facts of the case and with request and consent of learned advocates appearing for the respective parties, the petition was taken up for final consideration. Rule, returnable forthwith.
Page 1 of 7 Downloaded on : Fri Oct 23 03:26:06 IST 2020 C/SCA/894/2012 ORDERLearned advocates for the respective respondents waive service of notice of Rule.
2. The present petition filed under Article 226 of the Constitution seeks a writ of mandamus to get sets aside order-cum-communications dated 08 th December, 2011 and dated 23rd December, 2011 passed by the Port Officer, Bedi Bandar, Jamnagar-the authority of respondent No.2. Order dated 08 th December, 2011, provided that allotment of Plot No.16 to the petitioner company situated at Sachana Ship Breaking Yard was cancelled. In the second order dated 23rd December, 2011 while cancelling the allotment of Plot No.16, it was stated as ground that the plot was shown to be part of Marine National Park and the Sanctuary and the activity of ship breaking undertaken thereat was illegal and amounted to encroachment. It was provided that only after no- objection certificate received from the Forest Department, the plot could have been developed. The authority proceeded to order refund of the rental of the plot collected till the dispute therein was resolved.
2.1 The another limb of the prayer of the petitioner is to direct the respondents to extend the lease period the reminder of which elapsed because of the impugned action.
3. The facts briefly sated were that ship braking plot Nos.1 to 15 were functional at the Sachana Port Ship Breaking Yard. Plot Nos.16, 17 and Page 2 of 7 Downloaded on : Fri Oct 23 03:26:06 IST 2020 C/SCA/894/2012 ORDER 18 located in the area other than that of Plot Nos.1 to 15 were noticed to be part of the land of Marine National Park and that due to illegal activity of ship breaking, it was perceived that the marine life was under threat. It was, therefore, decided to cancel the allotment of plot Nos.16, 17 and 18 for the said reasons. As stated above, Plot No.16 was allotted to the petitioner which came to be cancelled.
3.1 It appears that affidavit-in-reply was filed in the petition at that time by Deputy Conservator of Forests, Jamnagar, raising contention inter alia that the activities in the plot such as repairing barges and ship breaking were prima facie in violation of the provisions of the Forest Conservation Act, 1880. The land was allotted for non-forest purpose by the Gujarat Maritime Board without prior approval of the Central Government, it was contended.
3.2 It appears that group of petitions by different petitioners-the plot holders-the allotees came to be filed, one of which was Special Civil Application No.12226 of 2015. In the said petition, order was passed on 14th August, 2019. In the said order, the stand of the State Government was recorded about formation of High Power Committee to address the issue. The State Government was granted time to undertake the exercise and form High Power Committee and take a decision.
3.3 Thereafter another order was passed on 19 th Page 3 of 7 Downloaded on : Fri Oct 23 03:26:06 IST 2020 C/SCA/894/2012 ORDER February, 2020. The petitioner withdrew Special Civil Application No.12226 of 2015 in light of the observations in order dated 19th February, 2020. The entire order is extracted to be reproduced hereunder.
"A further affidavit in reply on behalf of respondent no-4 was placed on record. Along with the affidavit, the decision of High Power Committee constituted pursuant to the order dated 14-08- 2019 is annexed. The decision of the committee was with regard to taking appropriate action to transfer the land in question of Sachana Ship Breaking Yard to the Marine National Park Authorities (Forest Department) under consultation with the Revenue Department. With this decision coming on record, learned advocate for the petitioner seeks permission to withdraw this petition. However, he also seeks liberty to make a detailed representation and requests to afford a hearing of the very High Power Committee so as to put the factual details, which according to him, would be relevant before taking a decision with regard to the land belonging to the National Park or not.
Under instructions, learned Government Pleader states that the High Power Committee will afford an opportunity of hearing to the petitioner and further action would depend upon the decision taken by the High Power Committee after affording the opportunity of hearing to the petitioner.
Notice is discharged. No order as to cost.
With the aforesaid, the petition stands disposed of as withdrawn.
At this stage, it is made clear that, this Court has not entered into the merits of the case.
In view of the order passed in main matter, Civil Application does not survive and disposed of accordingly."
3.4 Pursuant to the above developments during Page 4 of 7 Downloaded on : Fri Oct 23 03:26:06 IST 2020 C/SCA/894/2012 ORDER the pendency of different petitions, High Power Committee was constituted by the State Government. The minutes of the Committee along with the report has now been placed on record by filing affidavit dated 13th October, 2020 affirmed by the Under Secretary, Forests and Environment Department.
3.5 The said affidavit is filed in Interim Application No.1 of 2020 in Special Civil Application No.894 of 2012. The said affidavit along with copy of the report of the High Power Committee is taken on record and shall remain on record.
4. It is stated in the affidavit inter alia that pursuant to the orders passed by this Court in Special Civil Application No.12226 of 2015 as stated above, a High Power Committee under the Chairmanship of the Chief Secretary and comprising of the Additional Chief Secretary-Revenue Department, Additional Chief Secretary-Forests & Environment Department and Principal Secretary-Ports & Transport Department as members, was constituted. The meeting of the Committee was held on 06th August, 2020.
4.1 It was thereafter sated in the affidavit on oath thus, "it was agreed that according to the Forest Survey Officer's Report and subsequent survey by DILR Jamnagar, the plots are within the village limits of Sachana and hence, outside the Reserved forest (as declared under Section 4 of the Indian Forest Act, 1927) and also outside the "Nagarnar nu Jungle", which is the designated sanctuary."
4.2 The decision of the High Power Committee and Page 5 of 7 Downloaded on : Fri Oct 23 03:26:06 IST 2020 C/SCA/894/2012 ORDER the report of the Committee as above that the plots in question are within the limits of Sachana Village and they stand outside the area of reserved forest declared under Section 4 of the Indian Forests Act, 1927 and also outside the limits of Nagarnar nu Jungle-the designated Sanctuary, would necessarily reflect on the sustainability of the impugned order passed by the Gujarat Maritime Board. The order of cancellation of allotment of Plot No.16 to the petitioner and the consequence thereof would have to be evaluated in light of the above factual position obtained as per the report of the High Power Committee.
5. The ground supplied in the impugned order for cancellation of allotment of plot, accordingly, does not hold good on facts. Resultantly, this petition deserves to be partly allowed by setting aside the impugned orders dated 08th December, 2011 and 23rd December, 2011 passed by respondent No.2 insofar as they rested for cancellation of the allotment of Plot No.16 on the ground that the said plot was within the area of Marine National Park and the designated Sanctuary.
5.1 The cancellation of allotment of plot in the impugned orders on the said ground is hereby set aside. The position obtained would be that the petitioner would have to be placed in a position as if there was no cancellation of the allotment on the ground stated in the orders.
Page 6 of 7 Downloaded on : Fri Oct 23 03:26:06 IST 2020 C/SCA/894/2012 ORDER5.2 As far as the second part of the prayer about the extension of unconsumed balance lease period is concerned, the same is within the realm and domain of respondent No.2-Gujarat Maritime Board as per its Rules and Regulations. The petitioner's case in that respect may however be considered in light that the very premise on which the impugned action of cancellation of plot was based, has now not survived.
6. All consequences shall follow for the petitioner in accordance with the rules and regulations of respondent No.2-Gujarat Maritime Board, the impugned orders having been set aside to the aforesaid extent and for the ground on which they were rested.
7. The petition stands allowed as above and with the above observations. Rule is made absolute to the said extent.
ORDER IN CIVIL APPLICATIONS In view of order passed in the main Special Civil Application, both the Civil Applications do not survive and no orders are required to be passed. Accordingly, the Civil Applications are disposed of.
(N.V.ANJARIA, J) MARY VADAKKAN/Anup Page 7 of 7 Downloaded on : Fri Oct 23 03:26:06 IST 2020