Gujarat High Court
Kutch Salt And Allied Industries Ltd ... vs Union Of India Through Principal ... on 18 March, 2014
Author: Harsha Devani
Bench: Harsha Devani
C/SCA/160/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 160 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE HARSHA DEVANI
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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KUTCH SALT AND ALLIED INDUSTRIES LTD THRO
AUTHORISED....Petitioner(s)
Versus
UNION OF INDIA THROUGH PRINCIPAL SECRETARY &
22....Respondent(s)
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Appearance:
MR DHAVAL DAVE, SR. ADVOCATE with MR AJ YAGNIK, ADVOCATE for the
Petitioner(s) No. 1
GOVERNMENT PLEADER for the Respondent(s) No. 4 , 20 - 21
M/S.VYAS ASSOCIATES, ADVOCATE for the Respondent(s) No. 22
MR DHAVAL D VYAS, ADVOCATE for the Respondent(s) No. 2 , 23
MR IH SYED, ADVOCATE for the Respondent(s) No. 1 , 3
MR PR NANAVATI, ADVOCATE for the Respondent(s) No. 10
MR RJ OZA, ADVOCATE for the Respondent(s) No. 11
Page 1 of 74
C/SCA/160/2013 JUDGMENT
RULE SERVED BY DS for the Respondent(s) No. 2 , 4 - 9 , 11 - 21 , 23
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
Date : 18/03/2014
ORAL JUDGMENT
1. By this petition under Article 226 of the Constitution of India, the petitioner seeks the following substantive reliefs:
"10. Prayer:
In light of premises aforesaid, the petitioner prays that:
"[A] This Hon'ble Court may be pleased to issue appropriate writ of mandamus and/or writ of certiorari or any other appropriate writ, order or direction to the respondents to renew the lease of the petitioner for at least a further period of 10 years w.e.f. 10.1.2013 and declare the same to be in accordance with the Land Policy 2004 and Land Use Plan (Annexure-P-23) read with Section 34 of the Major Port Trusts Act, 1963 and in full compliance of and in conformity with Clause 9 of the lease-deeds dated 5.3.1963 and 4.2.1964 (Annexure-P-2 Colly.);
[B] This Hon'ble Court may be pleased to issue appropriate writ of mandamus and/or writ of certiorari or any other appropriate writ, order or direction to the respondents to review and reconsider their decisions dated 25.7.1997 (Annexure-P-5_ and 11.2.2000 Page 2 of 74 C/SCA/160/2013 JUDGMENT (Annexure-P-10 Colly.) in the light of changed facts and circumstances and applicable laws as set out in the petition and be pleased to direct the respondents to renew the lease of the petitioner for a further period of 10 years or thirty years;
[C] This Hon'ble Court may be pleased to issue appropriate writ of mandamus and/or writ of certiorari or any other appropriate writ, order or direction to the respondents to quash and set aside order/communication dated 29.12.2012 (Annexure-P-1) by way of which the respondent KPT has rejected petitioner's claim for renewing the lease for a further period of 10 years and consequentially be pleased to direct the respondents to renew the lease of the petitioner for a further period of 10 years;
[EE] To direct respondents and the respondent Kandla Port Trust in particular not to initiate proceedings under Public Premises (Eviction of Unauthorized Occupants) Act, 1971 for a further period of 10 years with effect from 10.1.2013."
2. The facts of the case, as averred in the petition are that the petitioner is a Company registered under the provisions of the Companies Act, 1956 and is engaged in the manufacture of salt and other allied activities since decades. The petitioner is one of the pioneers of the salt industry and has taken initiatives for the development of salt industries and more particularly, in the Kutchh area. Upon constitution of the Kandla Port as a major port under the Major Port Trusts Act, Page 3 of 74 C/SCA/160/2013 JUDGMENT 1963 (hereinafter referred to as "the Act"), the respondent No.2 - Kandla Port Trust, in the year 1963-64, invited entrepreneurs/business persons to contribute in the development of Kandla Port and providing employment to the people of the backward region of Kutchh. According to the petitioner, in those days, there was hardly any development and infrastructure available in the Kutchh region for establishing industries. The Central Government, therefore, vested approximately 2,20,000 acres of land in Kandla Port Trust for the purpose of its development as at that time, those lands were under the control and administration of the Central Government. The lands that were vested in Kandla Port had high salinity and were not fit for any other use except manufacturing of salt. After great persuasion, some people showed interest in making investment in this arid and parched area of Kutchh. The Kandla Port Trust, thereafter, granted approximately 16,000 acres of its lands to various parties for manufacturing of salt on nomination basis as there was no demand for land at that time. All these lands given from time to time, on nomination basis to approximately 46 parties, are situated in the intertidal zone, which is now subject to CRZ restrictions also.
3. By a lease deed dated 05.03.1963, land admeasuring 2873.thirty acres came to be allotted to the petitioner by the Kandla Port Trust on lease on a long term basis for a period of thirty years. Under clause (9) of the said lease deed, the petitioner was entitled to demand further renewal for thirty years. It appears that the petitioner demanded some more land for manufacturing salt and accordingly, by a separate lease deed dated 04.02.1964, 1016.87 acres of land was Page 4 of 74 C/SCA/160/2013 JUDGMENT allotted to the petitioner on the same terms as the earlier lease. The lease period of thirty years was to expire in the years 1993-94 in respect of both the leases, and, therefore, the petitioner, well in advance, made an application dated 24.03.1992 seeking renewal of the said leases for a period of thirty years as per the option given to the petitioner under clause (9) of the lease deeds. Despite the fact that the petitioner had made application for renewal of the leases well in advance, there was no response thereto from the respondents. The petitioner, therefore, addressed several communications to the respondents requesting them to renew the lease of the petitioner and correspondence between the parties went on for a considerable period without any effective results. Finally, the Kandla Port Trust, in its Board Meeting held on 25.07.1997, took up the issue of renewal of petitioner's lease for a period of twenty years instead of the full period of thirty years available to the petitioner under the lease deed and the existing guidelines. It appears that since the respondents had unilaterally chosen to reduce the period of lease from thirty years to twenty years, the petitioners sought the opinion of their Solicitors, at Mumbai, who opined that the petitioner had full right to demand renewal of lease for thirty years considering the legal position and the provisions of the lease deed. It appears that pursuant to the above resolution passed by the Kandla Port Trust, by a letter dated 19.08.1997, the Kandla Port Trust informed the Central Government of their proposal to renew the lease of the petitioner for a period of twenty years and sought approval of the Central Government. The record of the case reveals that the petitioner, right from the beginning, protested against the action of the curtailment of the lease period from thirty years to twenty years by the Page 5 of 74 C/SCA/160/2013 JUDGMENT Kandla Port Trust and made several requests to the respondents to reconsider the issue and renew the lease of the petitioner for the full period of thirty years in conformity with clause (9) of the lease deeds. However, to no avail.
4. In 1998, a cyclone hit Kandla Port and devastated all the available structures and set up of the petitioner. Since severe damage was caused to the infrastructure of the petitioner, it needed financial support, however, for the purpose of availing financial support, it was necessary to have a duly executed renewed lease deed. Not having any other option, the petitioner accepted the twenty years' renewal offered by the Kandla Port Trust. The petitioner, therefore, requested the Kandla Port Trust to issue a "No Objection Certificate" for mortgaging the leasehold rights with the financial institutions for raising finance pursuant to which, a "No Objection Certificate" dated 12.03.1999 came to be issued. The petitioner, thereafter, repeatedly requested the respondents to execute a formal lease deed to avoid inconvenience to the petitioner in carrying on its business. Finally, a letter dated 11.02.2000 was given to the petitioner for execution of lease deed subject to the condition that the petitioner should unconditionally accept the renewal of lease for a period of twenty years. Having no other alternative, the petitioner agreed to the said demand of the respondents as the petitioner had no bargaining power at all to negotiate the terms of the lease. The petitioner, therefore, wrote a letter dated 19.05.2000 stating its unconditional acceptance of the terms and conditions of the lease. However, at the same time, the petitioner had requested the respondents to reconsider the applicability of clause (9) of the original lease of 1963.
Page 6 of 74C/SCA/160/2013 JUDGMENT
5. Subsequently in the year 2009, a notice came to be issued to the petitioner for resumption of a part of the lands leased to it on the ground that the Kandla Port Trust required such land for port development and for establishment of Special Economic Zone. However, the proposed action for the premature resumption of the petitioner's land was subsequently abandoned. It is further the case of the petitioner that in its meeting held on 21.01.2006, the Kandla Port Trust resolved to establish Port Based Special Economic Zone, at Kandla. In the said meeting, on the question of the fate of the salt industries, the Chairman stated that there were clear cut guidelines laid down to this effect and the Kandla Port Trust does not want to encroach upon the Salt Manufacturers even though the salt industry is not so remunerative as far as the Port is concerned. On 02.09.2006, the application for Special Economic Zone was submitted by the Kandla Port Trust to the Ministry of Commerce and Industries. It is the case of the petitioner that such application was submitted with incorrect facts to the effect that the land was in the possession of the applicant and not allotted on lease basis to anyone. By an order dated 07.05.2007, a formal approval was granted by the Ministry of Commerce and Industries for the establishment of Special Economic Zone, at Kandla. However, thereafter, the Kandla Port Trust failed to obtain environmental clearance and other permission necessary under the law for establishing Special Economic Zone, at Kandla. In the meanwhile, the time- limit prescribed for establishing Special Economic Zone had expired. The Kandla Port Trust, however, by a letter dated 19.02.2010, requested for extension of time for establishing Special Economic Zone. Vide letter dated 05.04.2012, the Page 7 of 74 C/SCA/160/2013 JUDGMENT request was granted by the Ministry of Commerce by extending the period for establishing Special Economic Zone upto 06.05.2012. However, even during this extended time, the Kandla Port Trust failed to establish the Special Economic Zone. In the meanwhile, in January 2011, new Coastal Regulation Zone restrictions have been brought into force by the Central Government. It is the case of the petitioner that the land occupied by the petitioner on lease falls within the CRZ-I category, wherein no development is permissible except manufacturing of salt. According to the petitioner, the very basis of renewing lease of the petitioner for a period of twenty years instead of thirty years has disappeared and as a result thereof, the earlier decision of the Kandla Port Trust has become arbitrary and irrational in view of the changed circumstances and subsequent development. Moreover, the Government of Gujarat has refused to grant permission for establishment of Port Based Special Economic Zone, in view of the facts stated in paragraph 4.11 of the memorandum of petition.
6. Thereafter, the petitioner made an application dated 18.01.2012 requesting the Kandla Port Trust to renew the lease for a further period of thirty years. The petitioner also sought the opinion of two retired Judges of the Supreme Court on the issue of the petitioner's entitlement to renewal of the lease for full period of thirty years and in terms of the opinion given by the learned Judges, the petitioner was legally entitled to renewal of the leases for the full period of thirty years. By a communication dated 09.06.2012, the petitioner once again drew the attention of the Kandla Port Trust to the changed facts and circumstances and subsequent development that Page 8 of 74 C/SCA/160/2013 JUDGMENT have bearing with the decision to renew the lease of the petitioner for a further period of ten years in conformity with clause (9) of the lease deed. The issue of granting renewal to the petitioner was once again taken up by the Kandla Port Trust in its agenda of its meeting dated 31.05.2012, however, no decision was taken either way. According to the petitioner, the reason for not taking any decision could possibly be the various orders passed by the Delhi High Court in Writ Petition (Civil) No.11550 of 2009. It appears that the Government of Gujarat, by its letter dated 03.08.2012, has informed the petitioner that in view of the new CRZ notification, the land in the occupancy of the petitioner cannot be used by the Kandla Port Trust for the proposed Special Economic Zone. Thus, in view of the change in law, the Kandla Port Trust cannot use the land or portion of the land in the occupancy of the petitioner for establishing Special Economic Zone.
7. Since there was no response to the application made by the petitioner for renewal/extension of its lease, and having regard to the fact that the period of lease was coming to an end, the petitioner approached the Delhi High Court by filing a writ petition being Writ Petition (Civil) No.7114 of 2012, seeking the following reliefs :
"[A] This Hon'ble Court may be pleased to issue appropriate writ, order or direction to the respondents to renew the lease of the petitioner for at least a further period of 10 years w.e.f. 10.1.2013 and declare the same to be in accordance with the Land Policy 2010 and Land Use Plan read with Section 34 of the Major Port Trusts Act, 1963 and in full compliance of and in Page 9 of 74 C/SCA/160/2013 JUDGMENT conformity with Clause 9 of the lease-deeds dated 5.3.1963 and 4.2.1964.
[B] This Hon'ble Court may be pleased to issue appropriate writ, order or direction to the respondents to renew and reconsider their decisions dated 28.7.1997 and 11.2.2000 in the light of changed facts and circumstances and applicable laws as set out in the petition and be pleased to direct the respondents to renew the lease of the petitioner for a further period of 10 years.
[C] This Hon'ble Court may be pleased to issue appropriate writ, order or direction to the respondents to take decision on the applications dated 18.1.2012 and 9.6.2012 made by the petitioner for renewal of lease for a further period of 10 years."
8. The Delhi High Court disposed of the petition by an order dated 09.11.2012, directing the respondents therein to consider the said writ petition as a representation and pass a speaking order by 31st December, 2012. Pursuant to the said order, the petitioner vide letters dated 12.11.2012 and 19.11.2012 forwarded a copy of the memorandum of the said writ petition, as also a copy of the order passed thereon. By a letter dated 21.11.2012, the petitioner requested the respondent Government to revisit the action of granting the letter of approval to the Kandla Port Trust. Since no response was received by the petitioner, the petitioner sent two written reminders to the respondent No.1 dated 10.12.2012 and 27.12.2012. By a communication dated 29.12.2012, which was Page 10 of 74 C/SCA/160/2013 JUDGMENT received by the petitioner on 31.12.2012, the Kandla Port Trust rejected the petitioner's request for extension of the lease for the balance period in terms of the original lease deed. It is the case of the petitioner that since the representation dated 21.11.2012 was yet to be decided by the Central Government, it was surprised upon receipt of such communication. It is the further case of the petitioner that the Ministry of Commerce and Industries, Government of India accorded formal approval for setting up Port Based Multi Product Special Economic Zone, at Kandla and Tuna area, at Gandhidham, District Bhuj, Gujarat. The approval was given for a period of three years, subject to complying with other statutory requirements. That, for the reasons stated in paragraph 4.23 of the memorandum of the petition, in view of the changed situation and change in law, the stand of the Kandla Port Trust that it requires the land allotted to the petitioner for setting up a Special Economic Zone, has become inconsequential, inasmuch as, the purpose for which the land is required by the Kandla Port Trust does not exist and therefore, all consequential proceedings initiated against the petitioner do not survive.
9. It is in the backdrop of the aforesaid facts, that the petitioner has approached this court seeking the reliefs noted hereinabove.
10. Mr. Dhaval Dave, Senior Advocate, learned counsel for the petitioner invited the attention of the court to the facts of the case, to point out that by two lease deeds dated 5 th March, 1963 and 4th February, 1964, the land was allotted to the petitioner only for the purpose of manufacturing salt. Reference was made to clause (9) of the lease deed dated 5 th Page 11 of 74 C/SCA/160/2013 JUDGMENT March, 1963, which provides that the lessee observing and performing of the agreement, covenant and conditions thereof will on expiration of the term reserved therein, be granted at his/her option, a new lease of the demised premise by way of renewal for a further period of thirty years to commence from the date of expiry thereof on such conditions as the lessor may in his absolute discretion then determine, to submit that on a plain reading of the said clause it is amply clear that the right of renewal of the lessee to demand a new lease by way of renewal for a further period of thirty years is absolute. In exercise of such absolute right, the petitioner exercised its option for renewal of the lease before the expiry of the two leases by making an application for extension thereof for a period of thirty years. However, the respondents, at the relevant time, did not take any action on such application and kept the same pending. The attention of the court was invited to the correspondence on record, to point out the number of letters addressed to the respondents for renewal of the leases. It was pointed out that despite the fact that the petitioner had a right to get the leases renewed for a further period of thirty years, the Kandla Port Trust sought to curtail such period to twenty years in the proposal forwarded by it to the Central Government whereby it sought permission for renewal of the leases. It was submitted that such action on the part of the Kandla Port Trust was opposed by the petitioner by addressing various communications to them. However, in view of the cyclone that hit the Kutch area in the year 1998 and caused a lot of destruction to the infrastructure of the petitioner, the petitioner was in urgent need to have a duly executed renewed lease deed for obtaining finances, and therefore, had no option but to accept the offer of the Kandla Port Trust for renewal of Page 12 of 74 C/SCA/160/2013 JUDGMENT the leases for twenty years instead of thirty years. It was submitted that thus, the petitioner had no intention of waiving any right for renewal of the lease for thirty years under the original lease deed, however, in view of the situation as prevailing at the relevant time, the petitioner was compelled to accept the offer of the second respondent for extending the lease for a period of twenty years. It was pointed out that even while accepting the extension of the lease for a period of twenty years, the petitioner had specifically requested the Kandla Port Trust to keep in view of the provisions of clause (9) of the original lease deed. It was submitted that as the petitioner had never waived or given up its right for renewal of the lease for a period of thirty years, it made an application for renewal of the lease for the balance period of ten years, but there was no proper response thereto. In view of the non- action on the part of the respondents in considering the application for renewal/extension of the lease, the petitioner was constrained to file a writ petition before the Delhi High Court. It was submitted that in the proceedings of the said writ petition, a contention was raised by the Kandla Port Trust and the Ministry for Shipping that the Delhi High Court does not have the territorial jurisdiction to entertain such writ petition, in view of which the Delhi High Court by its order dated 09.11.2012, disposed of the petition, whereby the respondents were directed to consider the applications dated 8 th January, 2012 and 9th June, 2012 of the petitioner seeking renewal and pass a speaking order setting out their stand with regard to the same. The court further observed that the grounds taken in the writ petition shall also be considered and the speaking order shall be communicated to the petitioner within one week from the same being passed. It was submitted that pursuant Page 13 of 74 C/SCA/160/2013 JUDGMENT thereto, the petitioner addressed representations to the Kandla Port Trust as well as other respondents calling upon them to consider the applications made by the petitioner and decide the same in the light of the order passed by the Delhi High Court. However, to the surprise of the petitioner, instead of the respondents collectively deciding the said representations, by the impugned order/communication dated 29 th December, 2012, the Chairman, Kandla Port Trust rejected the applications made by the petitioner. Being aggrieved, the petitioner challenged the said order before the Delhi High Court by way of a writ petition being Writ petition (Civil) No.62 of 2013. However, a contention was raised by the Kandla Port Trust and the Ministry of Shipping that the Delhi High Court does not have a territorial jurisdiction to decide the said petition and hence, the Delhi High Court by its order dated 4 th January, 2013, permitted the petitioner to withdraw the petition with a view to approach the appropriate forum and hence, the present petition came to be filed before this Court.
10 [a] Mr. Dave submitted that the genesis of the impugned order is the order dated 09.11.2012 passed by the Delhi High Court and that the impugned order is not in conformity with the directions imparted by the Delhi High Court. Reference was made to the order dated 09.11.2012 of the Delhi High Court, to point out that the same indicates that what was pressed into service was the prayer made vide clause (c) of the petition. It was submitted that the petitioner had not sought any direction that the Kandla Port Trust be directed to decide the representation and therefore, when the Delhi High Court had directed the respondents to pass a speaking order on the representation, it was incumbent upon Page 14 of 74 C/SCA/160/2013 JUDGMENT the respondents to carry out a joint action and thereupon, to pass an appropriate decision based upon their collective wisdom. It was argued that there has to be interaction upon the respondents themselves and they should express their point of view and deal with the contentions pertaining to them. This was the true import of the order when the Delhi High Court directed the respondents to treat the petition as a representation. It was submitted that when different contentions are raised relating to different respondents, they should have collectively decided the same. According to the learned counsel the impugned decision leaves no room for doubt that the conclusion reached thereby is the individual unilateral opinion of the Chairman of the Kandla Port Trust and hence, is no decision in the eyes of law within the meaning of the directions imparted by the Delhi High Court. It was contended that the Kandla Port Trust being a body different from its Chairman, the decision could have been taken by the Board of Kandla Port Trust and not by the Chairman.
10[b] Next, it was submitted that, assuming that it was permissible for the Kandla Port Trust to take a decision on their representations, even then, the impugned decision would not qualify as a decision of the Kandla Port Trust which is a body corporate. Reference was made to section 5 of the Major Port Trusts Act, which provides that every Board constituted under the Act shall be a body corporate having perpetual succession and a common seal with power, subject to the provisions of the Act, to acquire, hold or dispose of property and may by the name by which it is constitute, sue or be sued. Referring to section 21 of the Act, it was pointed that it was permissible for the Board with the approval of the Central Government to Page 15 of 74 C/SCA/160/2013 JUDGMENT specify the powers and duties conferred or imposed upon the Board by or under the Act which may also be exercised or performed by the Chairman. Thus, the decision taken by the Chairman was not a decision of the Kandla Port Trust.
10[c] The next submission advanced by the learned counsel for the petitioner was that the Kandla Port Trust did not have the exclusive jurisdiction to take a decision on the subject land in view of the provisions of section 29 of the Major Port Trusts Act, which provides that as from the appointed day in relation to any port, all property, assets and funds and all rights to levy rates vested in the Central Government or, as the case may be, any other authority for the purposes of the port immediately before such day, shall vest in the Board. It was submitted that the land was originally leased to the petitioner by the Union of India and the same would vest in the Kandla Port Trust by operation of law under section 29 of the Act, only if the same was meant for the purposes of the port, and not otherwise. It was argued that this parcel of land has been earmarked for salt manufacturing and used consistently for the same since 1963. Therefore, it would not vest by operation of law in the Kandla Port Trust. It was submitted that the conduct of the petitioner of communicating with the Kandla Port Trust in this regard would not vest the land in the Kandla Port Trust, if it was otherwise not vested in it. It was contended that till date, the land in question has not vested in the Kandla Port Trust and hence, it could not have taken a unilateral decision on the representations made by the petitioner and that they could only take an administrative decision, but no decision on the domain of the land.
Page 16 of 74C/SCA/160/2013 JUDGMENT 10[d] Mr. Dave further submitted that even on merits, the
impugned decision suffers from the vice of total non- application of mind and therefore, even if the impugned decision is to be construed as permissible, then also, it fails to meet with the requirements of Article 14 of the Constitution of India. It was pointed out that in terms of the order of the Delhi High Court, the entire writ petition was to be treated as the petitioner's representation. It was submitted that at the relevant time, the only reason pressed into service for not granting extension was the requirement of land for the so- called Port Based Special Economic Zone. It was urged that when it is not possible to establish a Special Economic Zone, there is no rationale for not extending the lease pursuant to clause (9) of the original lease deed. According to the learned counsel, there is a total misreading of clause (9) of the original lease deed in the impugned decision, inasmuch as, no man of ordinary prudence would ever come to such a conclusion. Moreover, the decision is totally silent as regards the second contention raised on behalf of the petitioner, regarding feasibility of a Port Based Special Economic Zone.
10[e] Referring to clause (9) of the original lease deed, it was pointed out that on a proper construction of the said clause, it is apparent that if the lessee chooses to opt for a new lease for thirty years, it is not left to the discretion of the Kandla Port Trust not to extend the lease subject to such terms and conditions as it may deem fit. Reference was made to paragraph 6 of the impugned order, wherein it is observed thus: "6. The recommendation to renew the lease for further term of twenty years was approved by the Government of India, being the competent authority, under its orders dated Page 17 of 74 C/SCA/160/2013 JUDGMENT 23.09.1999, in effect, as it appears, not accepting to the representations made by M/s. KSAIL. Also the said decision specifically made it clear that the lease shall not be automatically renewable."It was submitted that if Kandla Port Trust was of the view that the Government of India was the competent authority, it had no right to render a decision on the representations made by the petitioner. It was pointed out that the reference to the terms and conditions (i) to (xv) in paragraph 7 of the impugned order is irrelevant and out of context, and is indicative of non-application of mind on the part of the authority concerned. Referring to paragraph 8 of the impugned order, wherein reference has been made to the unconditional acceptance of the offer for renewal of lease for twenty years on the terms and conditions mentioned in the letter dated 19.05.2000 has been made, it was pointed out that the concerned authority has very conveniently not mentioned the last paragraph of the said letter dated, whereby the attention of the Kandla Port Trust was drawn to clause (9) of the original lease deed.
10[f] As regards the findings recorded in paragraph 11 of the impugned order (page 63 of the petition), it was pointed out that it is not their case that the earlier lease alone is to be followed and the second lease is to be ignored. It was submitted that the condition of thirty years in the previous lease would not lapse on account of the subsequent condition incorporated in the succeeding lease. According to the learned counsel for the petitioner, the acceptance of the offer for extension/renewal of lease for a period of twenty years was not unconditional.
Page 18 of 74C/SCA/160/2013 JUDGMENT 10[g] Next, it was submitted that it cannot be said that
the petitioner has waived its right under the original lease deed, inasmuch as, the action of the petitioner cannot be said to be a waiver of the rights flowing under the original lease. In support of such contention, reliance was placed upon the decision of the Supreme Court in the case of Provash Chandra Dalui and another v. Biswanath Banerjee and another, 1989 Supp. (1) SCC 487, for the proposition that the essential element of waiver is that there must be a voluntary and intentional relinquishment of a known right or such conduct as warrants the inference of the relinquishment of such right. It means the forsaking the assertion of a right to the proper opportunity. Waiver is distinct from estoppel in that in waiver the essential element is actual intent to abandon or surrender right, while in estoppel such intent is immaterial. The necessary condition is the detriment of the other party by the conduct of the one estopped. An estoppel may result though the party estopped did not intend to lose any existing right. Thus, voluntary choice is the essence of waiver for which there must have existed an opportunity for a choice between the relinquishment and the conferment of the right in question. It was submitted that thus, an estoppel envisages some act by the other side to the detriment which is missing in the present case. It pre-supposes the existence of a right and giving up of a right. If on account of some act of the petitioner, the Kandla Port Trust would not be in a position to go back, then it can be said that they have acted to their detriment in which case, the principle of estoppel would come into play. In the facts of the present case, there is nothing to show that based upon the extension of the lease for a period of twenty years, the Kandla Port Trust has acted to its detriment.
Page 19 of 74C/SCA/160/2013 JUDGMENT 10[h] It was vehemently contended that it is the specific
case of the petitioner that in view of the CRZ notification issued in 2011, it was not possible to have Port Based Special Economic Zone activities on the subject land as it falls within the category of CRZ-1. It was submitted that the order only says that they have sought for permission from the concerned authorities; however, the contentions raised by the petitioner have not been dealt with. Referring to the record of the case, it was pointed out that the Government of India has made it clear that it is not possible to have a Special Economic Zone on the subject land. It was submitted that when it is not possible to use the land for the purpose for which the renewal is declined, adhering to the same stand would be contrary to Article 14 of the Constitution of India. It was submitted that if the very reason for curtailing the lease period to twenty years is not available to the Kandla Port Trust today, this would amount to nothing but a contrary approach on the part of the authority. In support of his submission, the learned counsel placed reliance upon the decision of the Supreme Court in the case of M/s Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay, (1989) 3 SCC 293, for the proposition that where there is arbitrariness in State action, Article 14 springs in and judicial review strikes such an action down. Every action of the executive authority must be subject to rule of law and must be informed by reason. So, whatever be the activity of the public authority, it should meet the test of Article 14. The State is not totally freed of the duty to act fairly and rationally, merely because it could do so under a contract. If a governmental policy or action even in contractual matters fails to satisfy the test of reasonableness, it would be Page 20 of 74 C/SCA/160/2013 JUDGMENT unconstitutional.
10[i] Reliance was placed upon a decision of the Supreme Court in the case of Kumari Shrilekha Vidyarthi and others v. State of U. P. and others, (1991) 1 SCC 212, for the proposition that applicability of Article 14 to all executive actions of the State being settled and for the same reason, its applicability at the threshold to the making of a contract in exercise of the executive power being beyond dispute, can it be said that the State can thereafter cast off its personality and exercise unbridled power unfettered by the requirements of Article 14 in the sphere of contractual matters and claim to be governed therein only by private law principles applicable to private individuals whose rights flow only from the terms of the contract without anything more? The court had no hesitation in saying that the personality of the State, requiring regulation of its conduct in all spheres by requirements of Article 14, does not undergo such a radical change after the making of a contract merely because some contractual rights accrue to the other party in addition. It is not as if the requirements of Article 14 and contractual obligations are alien concepts, which cannot co-exist. The court held that the scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited and in doubtful cases, the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes. However, to the extent, challenge is made on the ground of violation of Article 14 by alleging that the impugned act is arbitrary, unfair or unreasonable, the fact that the dispute also falls within the domain of contractual obligations would not relieve the State of its obligation to Page 21 of 74 C/SCA/160/2013 JUDGMENT comply with the basic requirements of Article 14. To this extent, the obligation is of a public character invariably in every case irrespective of there being any other right or obligation in addition thereto. An additional contractual obligation cannot divest the claimant of the guarantee under Article 14 of non-arbitrariness at the hands of the State in any of its actions.
10[j] It was submitted that the petitioner is, accordingly, questioning the decision of the respondents not to extend the lease on the ground that Port Based Special Economic Zone is proposed to be set up on the subject lands, in view of the fact that they are not in a position to use the land for port based Special Economic Zone and hence, there is no urgency for taking over the subject lands. The action of the respondents is, therefore, unreasonable. According to the learned counsel, the test of reasonableness tilts the balance in favour of the petitioner. Therefore, viewed from any angle, the impugned decision is not sustainable in law.
11. Vehemently opposing the petition, Mr. D. D. Vyas, Senior Advocate, learned counsel for the respondent No.23-Kandla Port Trust invited the attention of the court to the provisions of section 34 of the Major Port Trusts Act, 1963, which provides for the mode of executing contracts on behalf of the Board and more particularly, to the second proviso thereto, which reads thus:"Provided further that no contract for the acquisition or sale of immovable property or for the lease of any such property for a term exceeding thirty years, and no other contract whereof the value or amount exceeds such value or amount as the Central Government may from time to time fix Page 22 of 74 C/SCA/160/2013 JUDGMENT in this behalf, shall be made unless it has been previously approved by the Central Government."It was submitted that the duration of previous leases being for a period of thirty years, in the light of the above provision, the Kandla Port Trust sent the proposal for extending the leases in question for approval to the Central Government. It was submitted that the petitioner all along was aware of the fact that the Kandla Port Trust had proposed extension of lease for twenty years along with reduction of the area. However, at the relevant time no objection was raised by it against the curtailment of the period of lease from thirty years to twenty years. On the contrary, the petitioner accepted the offer, acted upon it, and did not challenge it for a period of twenty years. Subsequently, in a public interest litigation filed before the Delhi High Court, it was held that even in case of renewal, Article 14 of the Constitution of India provides that the lands allotted to salt manufacturers has to be given by way of public auction and not otherwise. It was pointed that subsequently, after the Central Government gave its approval, the Kandla Port Trust called upon the petitioner to give its unconditional acceptance to extension of the leases for twenty years, pursuant to which, the petitioner by its communication dated 19.05.2000 had unconditionally accepted the same. Later on, after a year or so, a formal agreement came to be executed wherein once again the petitioner unconditionally agreed to the renewal of the leases for twenty years instead of thirty years. It was contended that the original right of renewal of lease for a period of thirty years in the previous lease deed came to be curtailed on the basis of unconditional acceptance by the petitioner of the proposal given by the Kandla Port Trust. Moreover, in the new lease deed, no right of renewal has been Page 23 of 74 C/SCA/160/2013 JUDGMENT conferred upon the petitioner and upon expiry of the lease period, the petitioner is required to handover the land to the Kandla Port Trust. It was pointed out that in terms of the subsequent lease deeds, the petitioner has enjoyed the benefit of the subject lands for the full period.
11[a] It was argued that after the petitioner agreed unconditionally to renewal of lease for a period of twenty years, a new contract came into existence by way of fresh lease deeds for a period of twenty years. The very fact that the petitioner enjoyed the lease for twenty years without any objection clearly implies that it had accepted the conditions of the new lease deeds and had waived its rights under the original lease. However, when the period of the subsequent lease was about to be over, the petitioner raked up a case, the cause of action for which had arisen in the year 2000, very well knowing that they would not succeed, and approached the Delhi High Court by way of the above referred writ petition and thereafter withdrew the same with a view to make a representation.
11[b] As regards the contention that the Kandla Port Trust and more particularly its Chairman, was not competent to decide the representation of the petitioner, it was pointed out that all the communications made by the petitioner were addressed to the Chairman of the Kandla Port Trust with a request to decide the same to submit that, therefore, the contention regarding the Kandla Port Trust not being the competent authority appears to be an afterthought. It was submitted that all along, the petitioner knew that that its lease was to be and had been extended for a period of twenty years Page 24 of 74 C/SCA/160/2013 JUDGMENT only. Referring to the impugned decision, it was pointed out that the Chairman had gone by what was decided by the Board and that the decision of the Chairman was consistent with the view of the Board as well as in view of fact that on account of the orders passed by the Delhi High Court in the public interest litigation which was pending before it, the Kandla Port Trust could not have renewed the lease. It was submitted that there is an urgent need to take over the land for the purpose of development of a Special Economic Zone and hence, the same cannot be given on lease to the petitioner. It was argued that the petitioner had deliberately addressed the representations to the Estate Officer and the Chairman of the Kandla Port Trust because it knew that it was the Board that has to take a decision. However, having failed before the Chairman of the Kandla Port Trust, the petitioner now seeks to contend that he is not the competent authority.
11[c] As regards the contention that the subject lands are not vested in the Kandla Port Trust, reference was made by the learned counsel to the averments made in paragraph 9 of the memorandum of petition, to point out that the petitioner has, on oath, stated that the Central Government had vested the subject lands in the Kandla Port Trust. It was submitted that it is now, therefore, not permissible for the petitioner to contend that the subject lands are not vested in the Kandla Port Trust. It was urged that insofar as the petitioner is concerned, the argument regarding non-vesting of the lands in the Kandla Port Trust, is contrary to the pleadings. It was pointed out that the subsequent lease deed had been executed between the Kandla Port Trust and the petitioner, and that a lessee cannot question the title of the person from whom he takes the land Page 25 of 74 C/SCA/160/2013 JUDGMENT on lease. It was submitted that the petitioner having accepted the terms and conditions of the subsequent lease deed, it is not permissible for it to insist upon compliance with the conditions of the previous lease deed. It was vehemently argued that the petitioner had unconditionally accepted the renewal of a lease for a period of twenty years and after execution of the lease deeds, no objection had been raised regarding its right for renewal of the leases for a period of thirty years. It was submitted that subsequently, a fresh contract has been entered into between the petitioner and the Kandla Port Trust and the terms of such contract have not been challenged and hence, it is now not open to the petitioner to raise a contention on the basis of clause (9) of the original lease deed, inasmuch as, by consensus of the parties, they have entered into a fresh contract. Attention was invited to various clauses of the fresh lease deed, to submit that having executed subsequent lease deeds, the petitioner is bound by all the terms thereof, once having accepted it. That but for the execution of the lease deed, the petitioner could not have continued with its possession and use of the subject land after the expiry of the duration of the original leases. In support of such submission, the learned counsel placed reliance upon the decision of the Supreme Court in the case of C. Beepathuma and others v. Velasari Shankararnarayana Kadambolithaya and others, AIR 1965 SC 241, for the proposition that election is the obligation imposed by courts of equity to choose between two inconsistent or alternative rights or claims in cases where there is clear intention of the person from who he derives one that he should not enjoy both. That he who accepts a benefit under a deed or will must adopt the whole contents of the instrument. It was submitted that the Page 26 of 74 C/SCA/160/2013 JUDGMENT petitioner having elected to execute the lease for a further period of twenty years, cannot now, after having taken the benefit under the subsequent lease deed, choose to enjoy the benefit of the previous lease.
11[d] Reliance was also placed upon the decision of the Supreme Court in the case of The Joint Action Committee of Airlines Pilots Associations of India and others v. The Director General of Civil Aviation and others, AIR 2011 SC 2220, for the proposition that the doctrine of election is based on the rule of estoppel. The principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. Taking inconsistent pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily. It was submitted that the petitioner had elected to opt for renewal of lease for a period of twenty years and therefore, now cannot approbate and reprobate and seek to contend that clause (9) of the original lease would still be attracted. It was argued that in effect what the petitioner wants is to enforce the conditions of previous lease deed which is no longer in existence and the conditions whereof are inconsistent with the subsequent lease deed. The above decision would, therefore, be squarely applicable to the facts of the present case.
11[e] Next it was contended that the cause of action to
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challenge the renewal of the leases for further thirty years arose in the year 2000. At that time, the petitioner has not raised any objection and has let go the right and hence, the petitioner is not entitled to raise such contention at this stage. It was submitted that though in the letter dated 19.05.2000 whereby the petitioner had unconditionally accepted the proposal of the Kandla Port Trust there is a reference to clause (9) of the original lease deed, thereafter the petitioner has entered into an agreement for renewal of the lease for a period of twenty years and has executed a formal contract in this regard. Thus, the conduct of the petitioner disentitles it to raise such contention after a period of 13 years of the execution of the lease deed. It was emphatically argued that if the petitioner would have instituted a suit in connection with the rights arising under clause (9) of the previous lease deed, the suit would be barred by limitation and hence, the present petition under Article 226 of the Constitution of India is also time barred.
11[f] Mr. Vyas further submitted that the Kandla Port Trust cannot renew the leases for two reasons. As of now, in view of the proceedings before the Delhi High Court, it is not permissible for the Kandla Port Trust as well as the Central Government to renew the lease and that the same can be disposed of only by way of public auction. Secondly, in the light of the decision of the Supreme Court in the case of Saroj Screens Private Limited v. Ghanshyam and others, (2012) 11 SCC 434, it is not permissible for the respondents to dispose of the property otherwise than by auction or by inviting bids. Reliance was placed upon the decision of the Supreme Court in the case of Usha Mehta v. Government of Page 28 of 74 C/SCA/160/2013 JUDGMENT Andhra Pradesh, AIR 2013 SC 132, to submit that the State and/or its agencies/instrumentalities cannot give largesse to any person according to the sweet will and whims of the political entities and/or officers of the State. Every action/decision of the State and/or its agencies/instrumentalities to give largesse or confer benefit must be founded on a sound, transparent, discernible and well- defined policy, which shall be made known to the public by publication in the Official Gazette and other recognized modes of publicity and such policy must be implemented/executed by adopting a non-discriminatory and non-arbitrary method irrespective of the class or category of persons proposed to be benefited by the policy. The distribution of largesse like allotment of land, grant of quota, permit licence, etc. by the State and its agencies/instrumentalities should always be done in a fair and equitable manner and the element of favouritism or nepotism shall not influence the exercise of discretion, if any, conferred upon the particular functionary or officer of the State. It was submitted that, therefore, it is not permissible for the Kandla Port Trust to renew the lease without inviting fresh applications in respect thereof.
11[g] Next it was submitted that the petitioner's claim is based upon clause (9) of the lease deeds dated 05.03.1963 and 04.02.1964 on the ground that the same entitles it to seek further renewal of ten years. It was submitted that enforcement of such purported right is time-barred. That, by a resolution dated 19.08.1997, the Kandla Port Trust had resolved to recommend renewal of the leases for a period of twenty years only, to the Central Government under section 34 of the Major Port Trusts Act. The petitioner had raised Page 29 of 74 C/SCA/160/2013 JUDGMENT objections against the same in its representations made to the authority disputing the reduction of the duration of the new leases by a period of ten years and had sought renewal of the leases for a period of thirty years instead, which was not accepted and the right was denied by a decision of the Central Government. Such denial to renew the lease was done way back in the year 1997 and 2000 and hence, the challenge thereto and enforcement of such right in the year 2013 is barred by limitation, delay, laches and acquiescence. It was submitted that even a suit for performance of such right would be barred and therefore, no writ can be issued in respect of such reliefs. In support of such submission, the learned counsel placed reliance upon the decision of the Supreme Court in the case of M. K. Krishnaswamy v. Union of India, (1973) 4 SCC 163, wherein the court held that even for a suit, the cause of action, if any, would have arisen in 1950 and the suit would have been hopelessly time barred in 1963 when the petitions were filed. The court, therefore, did not think fit that the said cases were fit for interference after nearly twenty two years after the alleged cause of action had arisen.
11[h] Next it was submitted that the petitioner had unconditionally accepted the conditions that were attached to the approval by the Central Government granting renewal of lease for a term of twenty years. Acting on condition (xix), after a period of almost one year of its unconditionally accepting the terms and conditions mentioned in the letter dated 11.02.2000 of the Kandla Port Trust, the petitioner had voluntarily entered into a non-statutory contract, thereby agreeing to hold the premises for twenty years only, on the condition that it shall hand over the vacant and peaceful Page 30 of 74 C/SCA/160/2013 JUDGMENT possession of the plot upon the expiry of lease term, that is, twenty years. It was argued that the document dated 27.06.2001, materially alters the right under the earlier lease, thereby incorporating the condition that the lease shall not be automatically renewable and no compensation shall be payable in the event of refusal to renew the lease. It was emphatically argued that having enjoyed the possession of the demised land for the complete term under the lease deed of 2001, it is not open for the petitioner to now claim an equity or otherwise seek renewal as of a legal right, which would be inconsistent with the term of agreement dated 27.06.2001. It was urged that the stale claim on which the petition is filed would be the purported right of the petitioner for renewal of the lease for a further period of then years based upon clause (9) of the original lease deed. Since such enforcement is barred, no writ can be granted in the facts of the present case. In support of such submission, the learned counsel placed reliance upon the decisions of the Supreme Court in C. Beepathuma and others v. Velasari Shankararnarayana Kadambolithaya and others (supra) and the Joint Action Committee of Airlines Pilots Associations of India and others v. the Director General of Civil Aviation and others (supra).
11[i] It was submitted that by a resolution dated 21.01.2006, it has been resolved by the Kandla Port Trust to set up a Port Based Special Economic Zone, at Kandla, by reserving a minimum area of 3600 hectares on the west of dry cargo berths, and the disputed lands have been earmarked and are required for setting up the Port Based Special Economic Zone. The resolution has been approved by the Page 31 of 74 C/SCA/160/2013 JUDGMENT competent authority and the permissions are granted for setting up the Port Based Special Economic Zone, which are not in challenge and are in subsistence.
11[j] As regards the Land Policy, 2014 on which reliance has been placed by the learned counsel for the petitioner, it was submitted that resort cannot be made to the provisions thereof to compel the Kandla Port Trust to put the earmarked lands for allotment, ignoring the fact that the lands are required for development of Port Based Special Economic Zone and that the resumption thereof of other earmarked lands on such requirement has not been interfered by this court in Special Civil Application NO.16316 of 2012 as well as by the Delhi High Court. It was argued that on facts or in law, a lessor cannot be compelled to enter into non-statutory contract either for renewing or allotting the lands vested in it, however, in the event of the lands are to be leased, the allotment would have to comply with the requirements of Article 14 of the Constitution of India.
11[k] As regards the contention that the Chairman could not have taken the decision in view of the directions of the Delhi High Court, it was pointed out that before the Delhi High Court, the petitioner had only sought disposal of its pending applications dated 08.01.2012 and 09.06.2012. The said representations were addressed to the Estate Manager of Kandla Port Trust and none other. In the representation dated 09.06.2012, it has been specifically stated "We have requested you to renew our lease for a further period of 10 years". It was pointed out that pursuant to the directions issued by the Delhi High Court, the petitioner had represented Page 32 of 74 C/SCA/160/2013 JUDGMENT to the Chairman of the Kandla Port Trust to himself consider the question of renewal, providing therewith a copy of the petition as directed by the Delhi High Court. In these circumstances, it is not open for the petitioner to now contend that the Chairman could not have taken the impugned decision. Even otherwise, the Chairman has not adopted any view that is different from the decision taken by the Board of Trustees on 30.06.2011.
11[l] Dealing with the contention regarding the subject lands not vesting in the Kandla Port Trust under section 29 of the Major Port Trusts Act, it was submitted that there are no pleadings to support the said contention in the petition. On the contrary, in the petition, it has been pleaded that "The Central Government, therefore, vested approximately 2,20,000 acres of land in KPT for the purpose of its development... The lands that were vested in Kandla Port had high salinity and were not fit for any other use except manufacturing of salt." Besides, the conduct of the petitioner in making representation and seeking renewal on 09.12.1997 followed by agreement dated 27.06.2001, makes it evident that petitioner has accepted the position that the subject lands are vested in Kandla Port Trust and that even otherwise, the subject lands are in fact vested in the Kandla Port Trust under section 29 of the Act, which fact is also supported by the Central Government.
11[m] Insofar as the contention that the requirement of the subject lands for setting up Port Based Special Economic Zone is vitiated, the learned counsel submitted that such contention was previously raised in another writ petition being Special Civil Application No.16316 of 2012, wherein the very Page 33 of 74 C/SCA/160/2013 JUDGMENT contention came to be rejected by this court. It was submitted that section 35(1) of the Major Port Trusts Act provides for a Board to execute such works beyond port limits and provide such appliances as deemed expedient. The decision of Kandla Port Trust not to renew the lease, apart from other reasons, is also based on its requirement for setting up Port Based Special Economic Zone, which would benefit the development of port and engagement of Water Front/Port Based Services provided by the Kandla Port Trust. It was pointed out that by a resolution dated 21.01.2006, it was decided to set up Port Based Special Economic Zone by reserving an area of 3600 hectares of land. The said resolution was acted upon and the lands originally leased to (i) Vijay Salt Syndicate, (ii) New Kandla Salt and Chemical Company Pvt. Ltd. and (iii) M/s Kutch Salt and Allied Industries Pvt. Ltd., were earmarked for development. It was pointed out that the leases of M/s New Kandla and M/s Vijay Salt Syndicate had not been renewed citing requirement of the land for setting up Port Based Special Economic Zone and now the petitioner's application for renewal, is also turned down as portions of the lands are earmarked for development of Port Based Special Economic Zone. It was pointed out that the above Companies had contested the action of resumption of the lands to be required for Port Based Special Economic Zone under the Public Premises (Eviction of Unauthorized Occupants) Act, which came to be allowed by the learned District Judge. However, this Court in Special Civil Application No.13316 of 2012 and Special Civil Application No.16317 of 2012 reversed the findings of the learned District Judge and upheld the requirement of land by the Kandla Port Trust for setting up of Port Based Special Economic Zone. It was urged that the Kandla Port Trust would be put to serious Page 34 of 74 C/SCA/160/2013 JUDGMENT consequences as well as in an inequitable position if the setting up of Port Based Special Economic Zone on the subject lands is interfered, when the requirement for the adjacent land has not been interfered with by this court in above special civil applications and the Kandla Port Trust is in the process of/would be developing Port Based Special Economic Zone on the said parcels of lands and the development has been aligned with the development proposed in the present lands. It was submitted that setting up of Port Based Special Economic Zone is aimed for setting up/establishment of industries that would require water front/port based services that are provided by the Kandla Port Trust, in turn to increase the handling of vessels/goods cargoes by the Port. Setting up of Port Based Special Economic Zone by the Kandla Port Trust would not only benefit the port and its activities, but also is in the national interest.
11[n] Denying the contention that the establishment of Special Economic Zone is in conflict with the CRZ 2011 notification, it was submitted that similar challenge has already been turned down by this court in above referred special civil applications. It was submitted that the exception provided in communication dated 03.08.2012 of the Government of Gujarat, if read with the resolution for setting up Port Based Special Economic Zone, it would appear that proposed activities in the Port Based Special Economic Zone would not be in violation of CRZ 2011 regulations. Even otherwise, along with the affidavit, the report of the Nodal Agency has been placed on record, which clarifies that the proposed activities in the Port Based Special Economic Zone are not prohibited and the CRZ-1 restrictions would not apply.
Page 35 of 74C/SCA/160/2013 JUDGMENT It was submitted that till date, the competent authority has not prohibited or restricted the progress of Port Based Special Economic Zone, for it to be in violation of environmental norms or otherwise.
11[o] It was submitted that the second lease deed executed between the parties is an independent lease deed, wherein the parties have agreed upon new terms. Under the said contract, they do not have any right for automatic renewal. Hence, in view of the recent decisions of the Supreme Court, the lease of the subject lands cannot be renewed and that such lands can be allotted only by public auction. Besides, the statement made by the Additional Solicitor General before the Delhi High Court to the effect that the lands shall be disposed of only by way of auction, is still operating. It was submitted that the resolution passed by the Board curtailing the lease period to twenty years has not been challenged by the petitioner, hence, the decision taken by the Chairman on the basis thereof cannot be assailed on this ground. According to the learned counsel, even if the impugned order is set aside, the prayer in the writ petition is for a mandamus to the Kandla Port Trust to execute a lease deed, which relief cannot be granted and as such, on that count also, the petitioner cannot succeed.
11[p] Lastly, it was urged that the petition is not maintainable as the cause of action is barred by limitation and there is considerable delay in any case. Reliance was placed upon the decision of this court in the case of Rameshbhai Mathurbhai Patel and others v. State of Gujarat and others, 2013 (3) GLR 2276, wherein the court had declined to Page 36 of 74 C/SCA/160/2013 JUDGMENT grant discretionary relief under Article 226 of the Constitution of India in a case where the petitioner had not acted with due diligence and required promptness. It was submitted that the relief prayed for is by way of a writ of mandamus. The issuance of a writ of mandamus is purely discretionary and such powers should be exercised in exceptional circumstances in general public interest. The petitioner would not be entitled to the grant of any relief as there is no enforceable legal right and that the delay would be important factor in denying such right to the petitioner.
12. Mr. S. N. Soparkar, Senior Advocate, learned counsel for the respondents No.2 and 23 invited the attention of the court to the relief claimed vide paragraph 10(A) of the petition, to submit that such a prayer is uncalled for because a party cannot be compelled to enter into a contract. It was submitted that apart therefrom, the decisions of 1997 and 2000 have been challenged after an inordinate delay and the petition is, therefore, barred by delay, laches and acquiescence. Referring to the impugned order, it was submitted that the same is a well-reasoned order and is just, legal and proper, and does not warrant interference by this court. It was argued that there are two independent facets of the matter. If one were to assume that there were no proceedings before the Delhi High Court at all, in absence thereof, whether the petition is required to be allowed. The second facet is that if the petition is allowed, the same shall be subject to the orders that may be passed in the proceedings before the Delhi High Court. According to the learned counsel, the short question involved in the present case is whether the petitioner can contend that their lease should be extended. It was submitted that the main contention Page 37 of 74 C/SCA/160/2013 JUDGMENT of the petitioner is that the original lease provided for renewal of lease for a period of thirty years and secondly, that the Kandla Port Trust cannot utilize the lands for the purpose of Port Based Special Economic Zone because of the CERZ notification. It was submitted that whether or not the Kandla Port Trust needs the lands for setting up Port Based Special Economic Zone, there is no impediment to its using it for any other purpose. Merely because the Kandla Port Trust may not be in a position to put the lands to use, does not mean that the lands must be given to the petitioner. It was submitted that the tenure of the lease deed having come to an end due to efflux of time, the petitioner has no right to continue. It was vehemently submitted that the argument that the Kandla Port Trust does not need the subject lands, is irrelevant. Even if the Kandla Port Trust does not need the lands, the petitioner does not have any right to say that it must have it. Inviting attention to the communication dated 19.05.2000, whereby the petitioner had unconditionally accepted the renewal of the lease for a period of twenty years, it was pointed out that the reference to clause (9) therein is only by way of request, but the acceptance of the condition is unconditional. It was argued that the petitioner could have insisted for execution of a lease for a period of thirty years at the relevant time; however, having accepted twenty years lease, the petitioner cannot now be permitted to back out of it. Besides, the unconditional acceptance was followed by a formal document which came to be executed one year and one month thereafter, despite which, no such condition has been placed therein. It was submitted that when in June 2001, a formal lease deed came to be executed, there was not even a suggestion reserving a right to thirty years lease and now after having enjoyed the Page 38 of 74 C/SCA/160/2013 JUDGMENT lease and having taken advantage of the document up to January 2013, the petitioner cannot now say that it wanted the lease for thirty years, but was given lease for twenty years. It was submitted that the whole case of the petitioner for renewal of lease for thirty years was given up at that stage, under the circumstances, the subsequent conduct of seeking renewal for a further period of ten years with reference to clause (9) of the original lease deed, is impermissible in law and equity.
12[a] As regards the contention that the petitioner was coerced into unconditionally accepting the proposal for renewal of the leases for twenty years, it was submitted that the same is not borne out from the record. It was submitted that in essence and substance, the petitioner wants specific performance of a contract not entered into by it. It was contended that it is by now well settled that the property owned by the State must be disposed of by public auction and the petitioner has no right to seek renewal of the same without the procedure for public auction being followed. It was submitted that the petitioner having taken the benefit of the impugned orders, cannot now be permitted to challenge the same. The attention of the court was drawn to the decision of a coordinate Bench of this court rendered in Special Civil Application No.16316 of 2012 with Special Civil Application No.16454 of 2012, to submit that both from the SEZ as well as CRZ point of view, the arguments of the petitioner have been rejected by this court.
12[b] It was submitted that the Kandla Port Trust genuinely required the property for its own purpose and the Page 39 of 74 C/SCA/160/2013 JUDGMENT petitioner cannot challenge the wisdom of the Kandla Port Trust to require its own property. It was also pointed out that there is a prohibition against renewing the lease by virtue of the orders passed by the Delhi High Court, to submit that in any case, the relief prayed for in the petition cannot be granted as the same would be in conflict with the orders passed by the Delhi High Court from time to time in the public interest litigation pending before it.
12[c] Lastly, it was submitted that the conduct of the petitioner in enjoying the benefit under the lease deeds and thereafter, seeking to challenge the same is highly inappropriate. Besides, the permission of the Central Government is also necessary for extending the lease beyond a period of thirty years.
12[d] As regards the submission advanced by the learned counsel for the petitioner to the effect that subsequent lease deed confining the period of lease to twenty years instead of thirty years, as sought for by the petitioner, was due to coercion on the part of the respondent authorities, Mr. Soparkar placed reliance upon the decision of the Supreme Court in the case of S. K. Jain v. State of Haryana, (2009) 4 SCC 357, for the proposition that the concept of unequal bargaining power has no application in case of commercial contracts. Reliance was also placed upon the decision of the Supreme Court in the case of Assistant Excise Commissioner and others v. Issac Peter and others, (1994) 4 SCC 104, for the proposition that there is no such thing as doctrine of fairness or reasonableness. Doctrine of fairness or the duty to act fairly and reasonably is a doctrine Page 40 of 74 C/SCA/160/2013 JUDGMENT developed in the administrative law field to ensure the rule of law and to prevent failure of justice where the action is administrative in nature. Just as principles of natural justice ensure fair decision where the function is quasi-judicial, the doctrine of fairness is evolved to ensure fair action where the function is administrative. But it can certainly not be invoked to amend, alter or vary the express terms of the contract between the parties. This is so, even if the contract is governed by statutory provisions, that is, where it is a statutory contract - or rather more so. It was submitted that thus, the petitioner having executed the subsequent lease deed whereby the lease was confined to a period of twenty years and upon determination thereof, the subject land was to be handed over to the Kandla Port Trust, cannot now seek to vary, add or alter the terms of the said contract, as is sought to be done in the present case.
13. Mr. I. H. Syed, learned Assistant Solicitor General appearing on behalf of the Central Government, adopted the submissions advanced by the Mr. D. D. Vyas and Mr. S. N. Soparkar. He further submitted that the petitioner, while challenging the action of the respondents in not renewing the lease for thirty years, has not challenged the subsequent lease. It was submitted that in effect and substance, the present petition under Article 226 of the Constitution of India is for specific performance of a prayer where the limitation has expired and as such, amounts to abuse of process of the court.
14. Dealing with the contention with regard to unreasonable delay in filing the writ petition after unconditionally accepting the offer of the Kandla Port Trust for renewal/extension of lease Page 41 of 74 C/SCA/160/2013 JUDGMENT for a period of twenty years vide letter dated 19.05.2000, Mr. Dhaval Dave, learned counsel for the petitioner, in rejoinder, submitted that in respect of a writ petition under Article 226 of the Constitution of India, the question of any period of limitation would not arise. It was submitted that reliance by the respondents upon the decision of the Supreme Court in the case of M. K. Krishnaswamy v. Union of India (supra) is misconceived as the conclusion reached therein is based upon the peculiar facts thereof without laying down any absolute proposition of law, as is sought to be canvassed by the Kandla Port Trust to the effect that the petition filed after thirteen years from the date of the decision to renew the lease for twenty years would be barred by limitation, delay and laches. It was submitted that the Limitation Act, 1963 is not applicable to a writ petition. Reliance was placed upon the decision of the Supreme Court in the case of Royal Orchid Hotels v. G. Jayarama Reddy, (2011) 10 SCC 608, wherein it has been laid down that a relief can be denied in a writ petition on the ground of delay and laches if in the intervening period, some other rights have crystallized. Adverting to the facts of the present case, it was submitted that no such third party right has crystallized in the intervening period and in fact, no right has accrued to Kandla Port Trust in the meantime, which did not already exist.
14[a] Insofar as the reliance placed on behalf of the respondents on the decisions of the Supreme Court in the case of C. Beepathuma v. Velasari Shankararnarayana Kadambolithaya (supra) and The Joint Action Committee of Airlines Pilots Associations of India v. The Director General of Civil Aviation (supra), it was submitted that the Page 42 of 74 C/SCA/160/2013 JUDGMENT same are of no avail, inasmuch as, the said decisions refer to the doctrine of election, which has no application to the facts of the present case. It was argued that if the petitioner had availed some advantage over Kandla Port Trust to which the petitioner was otherwise not entitled by entering into the subsequent lease for a limited period of twenty years, the said doctrine of election would have come into play if the petitioner was to speak contrary to such fact. However, in the present case, by entering into subsequent lease, the petitioner has not gained something which the petitioner was otherwise not entitled to. Besides, even on facts, the petitioner is not speaking contrary to the second lease.
14[b] Next, it was submitted that the contention of the Kandla Port Trust that upon execution of the subsequent lease, clause (9) of the previous lease which mentioned the right of the petitioner for renewal for thirty years, would no longer survive, and hence, no right can be claimed in the present petition based upon said clause (9), suffers from a convenient misnomer on the part of the Kandla Port Trust with regard to the distinction between the principle of waiver and estoppel. It was submitted that apart from the above, in the absence of a non-obstante provision in the subsequent lease with reference to clause (9) of the previous lease, it cannot be said that the right which came to be crystallized pursuant to the earlier clause (9) would no longer survive. It was submitted that one should also not lose sight of the fact that the petitioner has also asserted its right for renewal regardless of clause (9) on the basis of applicability of Article 14 of the Constitution of India.
Page 43 of 74C/SCA/160/2013 JUDGMENT 14[c] As regards the contention that the subject land was
not vested in the Kandla Port Trust by virtue of section 29 of the Major Port Trusts Act, it was submitted that there is no substance in the submission of the Kandla Port Trust that as there is no pleading in the petition based on section 29 of the said Act, the petitioner has no right to press the same into service. It was urged that such a contention being a pure question of law, can always be raised at any point of time.
14[d] Insofar as the reliance placed by the learned counsel for the respondents on the decision of the Supreme Court in the case of Assistant Excise Commissioner and others v. Issac Peter and others (supra), it was submitted that the facts of the said case would reveal that as the provisions in a contract which was based upon a statute was sought to be altered relying upon the principle of fairness to be followed by the State in contractual matters, it was ruled on facts that the doctrine of fairness has no application. It was argued that by pressing for further renewal, the petitioner is not at all asking for alteration of the provision in the subsequent lease. According to the learned counsel, had there been a negative covenant in the subsequent lease ruling out the scope for further renewal at all, perhaps it would be possible for the Kandla Port Trust to contend that the petitioner is trying to alter the terms of a contract.
14[e] As regards the contention raised on behalf of the respondents that in the light of the decision of the Supreme Court in the case of Saroj Screens Private Limited v. Ghanshyam and others (supra), auction is the only mode of disposal of the property vesting in the authority under public Page 44 of 74 C/SCA/160/2013 JUDGMENT trust, it was submitted that the said decision impliedly diluted in view of the decision of a Constitutional Bench of the Supreme Court in the case of Natural Resources Allocation, In Re, Special Reference No.1 of 2012, (2012) 10 SCC 1. It was submitted that the position of as emerges on a combined reading of the decisions of the Supreme Court in the case of Saroj Screens Private Limited v. Ghanshyam (supra), Centre For Public Interest Litigation v. Union of India, (2012) 13 SCC 1 and Natural Resources Allocation, In Re, Special Reference No.1 of 2012 (supra), the same clearly indicates that while granting renewal of lease pursuant to a clause in the contract or even otherwise, all possible care should be taken that no loss is caused to the public exchequer. As regards the decision of the Supreme Court in the case of Usha Mehta v. Government of Andhra Pradesh (supra), it was submitted that the same refers to principles of negative equality which has no application to the facts of the present case. It was submitted that the decision in the case of Saroj Screens Private Limited v. Ghanshyam and others (supra) stands impliedly overruled by the presidential reference. Therefore, the proposition of law which emerges on a conjoint reading of all the three judgments is to the effect that while going for renewal or extension of lease pursuant to a clause in the contract, every effort should be made to see that the public exchequer does not suffer. It was submitted that these judgments do not lay down that the contractual clauses are to be given a go-bye but that proper steps should be taken to ensure that the public exchequer does not suffer. It was pointed out that in the present case, the petitioner is subjected to lease rental as determined by the Tariff Authority of India and as such, even as on date, the public exchequer is Page 45 of 74 C/SCA/160/2013 JUDGMENT not made to suffer. Referring to the New Land Policy, it was submitted that the same also conveys that auction is not the only mode of disposal of properties.
14[f] Summing up his submissions, the learned counsel submitted that:
[i] The petitioner had not waived the right under the old lease and at best, he is estopped from exercising a right which is not waived. The doctrine of estoppel would not come in the way of the petitioner unless it has acted to the detriment of the respondents.
[ii] Concept of renewal is not a stranger to the second lease. Moreover, the new land policy permits renewal of lease.
[iii] The action of the respondents of not renewing the lease is violative of Article 14 of the Constitution of India as it is arbitrary and is not supported by cogent reasons and is contrary to the land policy.
[iv] If for any reason, the Kandla Port Trust decides not to go ahead with its existing plan to develop a Special Economic Zone and thereupon, decides to auction the subject lands for salt manufacturing or allied activity, the petitioner be treated as existing lessee of the said lands and thereupon, be given the option to match the highest bidder as provided in the aforesaid new land policy.
[v] In the event, the court is not inclined to allow the petition, the court may consider granting permission to the petitioner to Page 46 of 74 C/SCA/160/2013 JUDGMENT lift the salt and the byproduct gypsum lying upon the subject lands, as also the existing infrastructure, under the supervision of the Kandla Port Trust. For this purpose reference may be made to the order dated 7th February, 2014 passed by the Supreme Court in Special Leave Petition (Civil) No.93-94 of 2014 arising from Special Civil Application No.16316 of 2012, where the concerned petitioner was ordered to be evicted as unauthorized occupant of public premises.
15. Before adverting to the rival submissions advanced by the learned counsel for the respective parties, reference may be made to the facts of the case as appearing from the record. By a lease deed dated 05.03.1963, the petitioner was granted lease of 2873.30 acres of land for a period of thirty years by the Kandla Port Trust for manufacturing salt. Subsequently, a separate lease deed was executed on 04.02.1964 for 1016.87 acres of land. The lands granted under the aforesaid leases were for a period of thirty years with an option of renewal under clause (9) thereof, which reads thus:
"9. The lessee, observing and performing all the agreements, covenants and conditions hereof will on expiration of the term reserved herein, be granted at his/her option, a new lease of the demised premises by way of renewal for a further period of thirty years to commence from the date of expiry thereof on such condition as lessor may in his absolute discretion then determine."
16. Thus, by virtue of clause (9), the lease could be renewed at the option of the petitioner for a further period of thirty Page 47 of 74 C/SCA/160/2013 JUDGMENT years which was to commence from the date of expiry of the said lease, subject to such conditions as the lessor may determine. The lease deeds which were executed in the year 1963 and 1964 were to expire in the years 1993 and 1994 respectively. The petitioner, therefore, made an application dated 24.03.1992 seeking renewal of the leases for thirty years in terms of clause (9) of the lease deeds. However, there was no response to the said application made by the petitioner. Thus, though the original lease deeds expired in the year 1993 and 1994 and the application for renewal of lease was not decided, the petitioner did not institute any proceedings for specific performance of the terms of the lease deeds. The petitioner, however, entered into correspondences with the respondents seeking renewal of the lease, but to no avail. Subsequently, on 25.07.1997, the Kandla Port Trust, in its Board Meeting, took the issue of renewal of the petitioner's leases and recommended the renewal of the leases for a period of twenty years instead of full period of thirty years available to the petitioner under the leases. After the petitioner came to know that the lease is proposed to be renewed only for twenty years, it addressed a communication dated 06.10.1997 (page 162) to the Union Ministry of Surface Transport for extension of the lease for thirty years in terms of the conditions of the original lease deeds. Another communication dated 09.12.1997 (page 165) came to be addressed to the Chairman, Kandla Port Trust to renew the lease unconditionally for a further period of thirty years as per the original lease. Copies of legal opinions of Hirani and Company, Advocate and Solicitor, Mumbai and Mr. Justice N. D. Vyas, Former Judge of the Bombay High Court were also enclosed therewith. By a communication dated 19th July, 1999 Page 48 of 74 C/SCA/160/2013 JUDGMENT addressed to the Joint Secretary, Ministry of Surface Transport, Government of India, the petitioner again sought renewal of the lease agreement for a further period of thirty years with effect from January 1993, enclosing therewith the opinions of their Solicitors and Justice N. D. Vyas (Retd), Bombay High Court, stating therein that due to the unprecedented cyclonic storm in Kandla on 9th June, 1998 and total destruction of their plant and machineries at their Salt Works, they are required to reconstruct the entire Salt Works, for which they had approached their bankers for assistance for Term Loan Finance and are facing difficulty without a formal renewal of the lease agreement. Various other communications for renewal of the leases for thirty years were sent, stating difficulties faced by it on account of non-renewal of the lease. A communication dated 12th March, 1999 came to be addressed by the Kandla Port Trust referring to a meeting with their Chairman on 12 th March, 1999 informing the petitioner that the proposal for renewal of the lease for twenty years is sent to the Central Government and is pending approval and that the petitioner could raise funds in anticipation of the government approval of the lease. By a communication dated 11.02.2000 (page 204) of the Kandla Port Trust addressed to the petitioner with reference to its letter dated 24.03.1992, approval of Central Government for renewal of the lease of salt land for manufacture of salt for a further period of twenty years with effect from 10.01.1993 to 09.01.2013, subject to the terms and conditions set out therein, was conveyed to the petitioner. In the said communication, it was, inter alia, stated as under :
"You are requested to pay immediately the dues specified at Sr. No. iii, viii & ix above i.e. Rs.23,90,399/-Page 49 of 74
C/SCA/160/2013 JUDGMENT and convey your unconditional acceptance to the terms and conditions appended above and make the payment within a period of thirty days, failing which, interest at the rate of 18% will be charged."
On 19.05.2000, the petitioner in the context of the above letter dated 11.02.2000, addressed a communication, wherein it was, inter alia, stated thus:
"As desired by you, we convey our unconditional acceptance of the terms and conditions mentioned in the aforesaid letter.
Meanwhile, we would also like to draw your kind attention to Clause 9 of the agreement which may kindly be looked into."
17. Since the petitioner right from the beginning was aware that Kandla Port Trust had proposed extension of lease for a period of twenty years only, it, therefore, obtained opinion of its Solicitors as well as a retired High Court Judge and addressed several communications to the respondents requesting that the lease be extended for thirty years. Despite all the representations as well as any talk that they may have had in the meetings held for extension of lease, the respondents agreed to extend the lease for twenty years only and by the communication dated 11.2.2000, offered to extend the lease subject to the petitioner unconditionally accepting extension of the lease for twenty years. The petitioner, by the communication dated 19.05.2000, conveyed its unconditional acceptance of the terms and conditions stipulated in the letter dated 11.02.2000, except that in the said acceptance letter Page 50 of 74 C/SCA/160/2013 JUDGMENT also, it invited the attention of the Kandla Port Trust to clause (9) of the original lease deed.
18. It may be noted that after the unconditional acceptance and drawing the notice of the Kandla Port Trust to clause (9) of the original lease, a lease deed dated 27.06.2001 (page 212) came to be executed between the Kandla Port Trust and the petitioner, whereby the lease came to be renewed for a period of twenty years. Thus, at this point of time, the petitioner was clearly aware that the request for extension of lease for thirty years had not been accepted. Moreover, when despite the fact that the petitioner had entered into lengthy and frequent correspondence with the respondents for extension of the lease for thirty years, the respondents had offered to extend it for twenty years and the petitioner had unconditionally accepted the same, the mere fact that reference was made to clause (9) of the original lease in such letter of acceptance would not mean that the acceptance was not unconditional. Moreover, though the petitioner was clearly aware that the request for renewal of lease for thirty years has not been accepted, as well as despite the opinion of its Solicitors and a retired High Court Judge, the petitioner chose to remain silent at the relevant time and accepted the terms and conditions as proposed by the respondents.
19. For a period of about eight years thereafter, it appears that the petitioner maintained total silence regarding the renewal of the lease for a period of twenty years only. Subsequently, on 3/11.11.2009, the Kandla Port Trust addressed a communication to the petitioner declaring its intention to resume land admeasuring 3,891 acres allotted to Page 51 of 74 C/SCA/160/2013 JUDGMENT the petitioner for development of a Port Based Multi Product Special Economic Zone and calling upon the petitioner to hand over peaceful possession of the said land within six months from the date of receipt of the said notice.
20. In response to the said letter, the petitioner addressed a communication dated 06.05.2010 (page 254), stating that the lease was for twenty years commencing from 11.01.1993 and was expiring on 10.01.2013 and that now only 32 months period remains. While not admitting the requirement of the land for the purpose stated by the Kandla Port Trust, the petitioner had requested that they may be allowed to hold and enjoy and possess the land in question for the remaining period of lease. Thus, the petitioner was very much conscious of the fact that the lease has been renewed for a period of twenty years only and was likely to be over within a short period of time. Subsequently, various communications regarding taking over possession for the above purpose came to be addressed. It appears that subsequently, the Kandla Port Trust gave up the idea of taking possession of the above lands admeasuring 3,891 acres allotted to the petitioner. It also appears that in the meanwhile, the Kandla Port Trust made an application for setting up a Special Economic Zone in the said region and by a communication dated 7th May, 2007, the Government of India granted a formal approval to the proposal, which was valid for a period of three years. Subsequently, the validity period came to be extended till 6 th March, 2011.
21. The petitioner, thereafter, made an application dated 18.01.2012 (page 407) for renewal of the lease with reference Page 52 of 74 C/SCA/160/2013 JUDGMENT to the renewal clause as incorporated in the lease deed dated 05.03.1963. The petitioner stated that before expiry of the said lease, it had applied for renewal of lease for thirty years, however, the concerned authority had renewed it only for twenty years and ten years balance is still to be renewed. Accordingly, the petitioner requested to consider the renewal of the lease for the balance period of ten years. It was further stated that without prejudice to the request for renewal for the balance period of ten years, the authority may renew their lease for thirty years. By a communication dated 09.06.2012 addressed to the Estate Manager of Kandla Port Trust, the petitioner requested him to review the decision to renew the lease for twenty years only and to take a fresh decision in conformity with clause (9) of the original lease. The petitioner also obtained opinions of former two former Judges of the Supreme Court, viz., Mr. Justice G. T. Nanavati and Mr. Justice C. K. Thakkar. Since the request of the petitioner was not being acceded to, the petitioner filed a writ petition before the Delhi High Court being W. C. No.7114 of 2012 seeking various reliefs. By an order dated 09.11.2012, the Delhi High Court disposed of the said petition by observing that the petitioner had confined the reliefs claimed in the petition to the extent of the directions to the respondents to decide its applications dated 18.01.2012 and 09.06.2012. The court observed that whether the changed policy would apply to the petitioner or not, is a moot question. Any which way, in view of the fact that the petitioner, at this stage only seeks disposal of his applications dated 8th January, 2012 and 9th June, 2012 seeking renewal, the respondents will pass a speaking order setting out their stand with regard to the same. The Court further observed that the grounds taken in the writ petition shall also be considered.
Page 53 of 74C/SCA/160/2013 JUDGMENT Pursuant to the said order passed by the Delhi High Court, the petitioner addressed a communication dated 12.11.2012 (page
662) addressed to the Chairman, Kandla Port Trust forwarding a copy of the Delhi High Court order and requesting for renewal of lease. Another communication dated 19.11.2012 also came to be addressed to the Chairman, Kandla Port Trust in similar terms. By a letter dated 19.11.2012 addressed to the Secretary, Forest and Environment Department, the petitioner forwarded a copy of the Delhi High Court order with a request to consider its request. The petitioner also addressed a letter dated 21.11.2012 to the Director, Special Economic Zone, Department of Commerce, New Delhi for consideration of the order of the Delhi High Court with a request to cancel the letter of acceptance dated 07.05.2007 granted to Kandla Port Trust. A letter dated 10.12.2012 came to be addressed to the Secretary (Shipping), Government of India, forwarding a copy of the Delhi High Court order with a request to extend the lease for ten years and/or renewal of lease for thirty years. By a letter dated 27.12.2012 addressed to the Secretary (Shipping), Government of India, the petitioner reminded them that they are waiting for his decision for extension of lease for ten years and/or renewal of lease for thirty years. A letter dated 31.12.2012 came to be addressed to the Under Secretary, Department of Commerce requesting for the information mentioned therein. The Under Secretary to the Government of India addressed a letter dated 03.01.2013 to the Development Commissioner, Kandla Special Economic Zone with reference to his letter dated 22.12.2012, requesting him to furnish detailed comments/status report on the issues raised by the petitioner and M/s New Kandla Salt and Chemical Co., enclosing the letters of the petitioner and the said Page 54 of 74 C/SCA/160/2013 JUDGMENT Company. By the impugned order dated 29.12.2012, the Chairman, Kandla Port Trust rejected the application made by the petitioner seeking renewal of the lease for a further period of ten years as contained in their applications dated 18.01.2012 and 09.06.2012. Being aggrieved, the petitioner has filed the present petition seeking the reliefs noted hereinabove.
22. As can be seen from the reliefs prayed for in the petition, the principal relief claimed is by way of a direction to the respondents to renew the lease of the petitioner for a further period of at least ten years with effect from 10.01.2013 and to declare the same to be in accordance with the Land Policy, 2014 and Land Use Plan read with section 34 of the Major Port Trusts Act, 1963 and in full compliance and conformity with clause (9) of the lease deed dated 05.03.1963 and 04.02.1964. Thus, in effect and substance, what the petitioner seeks is specific performance of clause (9) of the lease deeds dated 05.03.1963 and 04.02.1964.
23. The facts are not in dispute. Admittedly, clause (9) of the original lease deed conferred on the lessee a right of renewal of lease for a further period of thirty years. However, when the petitioner sought to exercise such right of renewal, there was no response from the respondents. Subsequently, the Kandla Port Trust passed a resolution for renewing the lease for a period of twenty years and forwarded such proposal to the Central Government for approval. The petitioner vehemently opposed the proposed action of Kandla Port Trust and addressed various communications to Kandla Port Trust and authorities for implementation of clause (9) of the lease deed, Page 55 of 74 C/SCA/160/2013 JUDGMENT however, to no avail. Thereafter, on account of the cyclone which ravaged Kutch in the year 1998, the petitioner's unit suffered severe damage and hence, it required to obtain financial aid which was not forthcoming without a lease deed being executed extending/renewing the lease. Left with no option as the delay in renewal of the leases was causing undue prejudice to it, the petitioner succumbed to the offer of the respondents for extending the lease for twenty years instead of thirty years as contemplated in the original lease. Accordingly, the petitioner at the instance of the respondents, by a communication dated 09.05.2000, unconditionally agreed to the extension of the lease for a period of twenty years. Nonetheless, at the same time, the petitioner also sought to draw the attention of the Kandla Port Trust to clause (9) of the original lease deed. After a period of about one year thereafter, a formal lease deed came to be executed renewing the lease for a period of twenty years and fresh terms and conditions came to be incorporated therein. The petitioner mutely executed the lease deed without as much as a murmur. The petitioner after such unconditional acceptance and subsequent execution of the lease deed, acted upon the same and took the benefit thereof, without any protest against the curtailment of the period of lease, nor did it try to assert its right under clause (9) of the original lease.
24. The record reveals that right from the beginning, the petitioner was aware that Kandla Port Trust had proposed extension of lease for a period of twenty years only. It, therefore, obtained opinions of its Solicitors as well as of a former High Court Judge and addressed several communications to the respondents requesting that the lease Page 56 of 74 C/SCA/160/2013 JUDGMENT be extended for thirty years. Despite all the representations as well as any talk that they may have had in the meetings held for extension of the lease, the respondents agreed to extend the lease for a period of twenty years only and by the communication dated 11.02.2000, offered to renew the lease for a further period of twenty years with effect from 10.1.1993 to 9.1.2013 and called upon the petitioner to convey its unconditionally acceptance to the terms and conditions set out therein. The petitioner, by the communication dated 19.05.2000, conveyed its unconditional acceptance of the terms and conditions stipulated in the letter dated 11.02.2000 as desired by the Kandla Port Trust, however, in the said acceptance letter, it also invited the attention of the Kandla Port Trust to clause (9) of the original lease deed. Thus, when despite the fact that the petitioner had entered into lengthy and repeated correspondence with the respondents for extension of the lease for a period of thirty years, the respondents had offered to extend the lease for twenty years only and the petitioner had unconditionally accepted the same, the mere fact that reference was made to clause (9) of the original lease in such letter of acceptance, would not mean that the acceptance was not unconditional.
25. As noticed earlier, in response to the letter dated 3/11.11.2009 of the Kandla Port Trust declaring its intention to resume land admeasuring 3,891 acres allotted to the petitioner, the petitioner had addressed a communication dated 06.05.2010 stating that the lease was for a period of twenty years commencing from 11.01.1993 and was expiring on 10.01.2013 and that now only a thirty two months period remained. Thus, the petitioner even at that stage, was very Page 57 of 74 C/SCA/160/2013 JUDGMENT much conscious of the fact that the lease had been renewed for a period of twenty years only and was likely to come to an end within a short time. However, it was only at the fag end of the lease period, that the petitioner has called in question the curtailment of the renewed lease for a period of twenty years, instead of thirty years as opted by it.
26. The crucial question that arises for consideration is as to whether it is now permissible for the petitioner to seek to assert its right under the previous lease deeds dated 05.03.1963 and 04.02.1964, the tenure whereof has expired and subsequent thereto, the petitioner has unconditionally accepted renewal of the lease for twenty years, albeit on account of the critical situation that it was faced with, and has executed a new lease deed whereby the lease period has been renewed for a further period of twenty years with effect from 11.01.1993 to 10.01.2013, subject to the conditions stated therein. In the opinion of this court, the petitioner had a right for renewal of the lease for further period of thirty years under clause (9) of the original lease deed, which it could have insisted upon being given effect to. But after the initial protest, the petitioner, gave in and unconditionally accepted the offer for extension of twenty years. Faced with a situation whereby the respondents were not willing to extend the lease in terms of clause (9), the petitioner instead of challenging the action of the respondents before a court of law at the relevant time and seeking specific performance of the terms of the contract, elected to take the easy way out and agreed to renewal of the lease for a period of twenty years. Therefore, the petitioner elected to opt for the offer made by Kandla Port Trust for renewal of the lease for a period of twenty years instead of Page 58 of 74 C/SCA/160/2013 JUDGMENT thirty years, rather than to pursue the legal course of action available to it for specific performance of the terms and conditions of the previous lease deed.
27. From the facts noted hereinabove, the cause of action for the petitioner to seek implementation of clause (9) of the original lease deed arose as soon as the tenure of the original lease deed was about to come to an end viz. on 10.01.1993. The cause of action further arose when the petitioner became aware that the Kandla Port Trust proposed to renew the lease for a period of twenty years only, and not thirty years as requested by the petitioner. A further cause of action arose on 19.05.2000, when the petitioner was constrained to unconditionally accept the offer of the Kandla Port Trust for renewal of the lease for a period of twenty years only on account of the critical situation that it was facing. On behalf of the petitioner, reliance has been placed upon the decision of the Supreme Court in the case of Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguli, (1986) 3 SCC 156 for contending that the respondents having a stronger bargaining power, had prevailed upon the petitioner and coerced it into unconditionally accepting renewal of the lease for a period of twenty years and as such, there was a violation of the petitioner's fundamental right under Article 14 of the Constitution of India. In the cited decision, the Supreme Court has held that Article 14 of the Constitution of India guarantees to all persons equality before the law and the equal protection of the laws. That the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in Page 59 of 74 C/SCA/160/2013 JUDGMENT bargaining power. It may be pertinent to note that the court in the said decision had held that the principle laid down therein will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. This principle will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. Reverting to the facts of the present case, it may be that at the relevant time on account of the situation then prevailing, the petitioner may have accepted the offer of the respondents for renewal of the lease for a period of twenty years instead of thirty years as claimed by it. However, since the claim of the petitioner is based upon a clause in the contract, it was always open for it to assert its right at the relevant time before a court of competent jurisdiction and seek specific performance of the terms of the contract. The petitioner, however, failed to do so and availed the benefit of the new lease deed. Much later, when the lease deed was about to come to an end, the petitioner woke up from its slumber and sought implementation of clause (9) of the original lease, which was no longer in existence as the same had expired due to efflux of time.
28. At this juncture, reference may be made to the decision of the Supreme Court in the case of The Joint Action Committee of Airlines Pilots Associations of India v. The Director General of Civil Aviation (supra), wherein it has been held that the doctrine of election is based on the rule of Page 60 of 74 C/SCA/160/2013 JUDGMENT estoppel - the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. Taking inconsistent pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily. Coming back to the facts of the present case, it may be that the petitioner, in view of the critical situation then prevailing, unconditionally accepted the offer of Kandla Port Trust for renewal of the lease for a period of twenty years instead of thirty years as claimed by it. Though, the petitioner had a right flowing from clause (9) of the original lease deed for renewal of the lease for a period of thirty years, the petitioner remained silent when it was its duty to speak and did not assert its right. The petitioner, on the other hand, unconditionally accepted the offer of the Kandla Port Trust and remained silent till the subsequent lease was about to come to an end. Moreover, as held by the Supreme Court in C. Beepathuma v. Velasari Shankararnarayana Kadambolithaya (supra), he who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it. The petitioner having accepted the offer of Kandla Port Trust for renewal of the lease for a period of twenty years despite its entitlement to get the same renewed for a period of thirty years and having executed a subsequent lease deed where under, it agreed that on expiry of the lease or its sooner Page 61 of 74 C/SCA/160/2013 JUDGMENT determination by the lessor, in accordance with the terms of the lease, the lessee shall remove all their machinery, structures of whatsoever nature put up by them and restore the demised premises in its reimbursed condition, without being in anyway entitled to be reimbursed for any loss or damage suffered by them by such determination and yield up the demised premises to the lessor. In the subsequent lease deed, there was a condition to the effect that the lease deed shall not be automatically renewable. The lease deed also did not contain any clause akin to clause (9) of the original lease deed, whereby the petitioner had a right to opt for renewal of the lease. Therefore, the petitioner, having adopted the subsequent lease deed, is bound to conform to all the covenants contained therein and renounce all rights that are inconsistent therewith. Moreover, as held by the Supreme Court in Assistant Excise Commissioner v. Isaac Peter (supra) the doctrine of fairness or the duty to act fairly and reasonably is a doctrine developed in the administrative law field to ensure the rule of law and to prevent failure of justice where the action is administrative in nature. Just as principles of natural justice ensure fair decision where the function is quasi- judicial, the doctrine of fairness is evolved to ensure fair action where the function is administrative. But it can certainly not be invoked to amend, alter or vary the express terms of the contract between the parties. This is so, even if the contract is governed by statutory provisions. Thus, having entered into an express contract vide the lease deed dated 27.06.2001, the petitioner cannot invoke either Article 14 of the Constitution or the doctrine of fairness to alter or vary the express terms of the contract between the parties and to fall back upon the previous lease deed which had since long ceased to be Page 62 of 74 C/SCA/160/2013 JUDGMENT operative.
29. True it is that merely because there is no condition for renewal of the lease in the subsequent lease deed, the same would not tantamount to barring the petitioner from making an application for renewal of lease and the respondents from considering the same in accordance with law. The respondents were, therefore, required to consider the request of the petitioner for renewal of the lease deed. May be not under the clause (9) of the original lease deed, but by virtue of its powers under section 34 of the Major Port Trusts Act, which permits the Board to enter into contracts for sale of immovable properties as well as lease thereof. It has been contended on behalf of the respondents that beyond a period of thirty years, the Kandla Port Trust cannot grant a lease on its own, but needs the previous approval of the Central Government in this regard. The fact that the approval of the Central Government is required for renewal of the lease beyond a period of thirty years would not detract from the fact it is still permissible for the Kandla Port Trust to renew the lease of the petitioner, if it so deems fit subject to obtaining such approval. On behalf of the Kandla Port Trust, reliance has been placed upon the decision of the Supreme Court in the case of Saroj Screens Private Limited v. Ghanshyam (supra) for contending that in the light of the said decision, it is not permissible for the respondents to renew the lease and that the disposal of such land can be only by way of public auction by issuing advertisement in this regard. The aforesaid contention of the respondents does not merit acceptance in the light of the decision of a Constitution Bench of the Supreme Court in the case of Natural Resources Allocation, In Re, Special Page 63 of 74 C/SCA/160/2013 JUDGMENT Reference No.1 of 2012 (supra), wherein the court after a scrutiny of the trend of decisions, observed that it is clearly perceivable that the action of the State, whether it relates to distribution of largesse, grant of contracts or allotment of land, is to be tested on the touchstone of Article 14 of the Constitution. A law may not be struck down for being arbitrary without the point out of a constitutional infirmity. Therefore, a State action has to be tested for constitutional infirmities qua Article 14 of the Constitution. The action has to be fair, reasonable, non-discriminatory, transparent, non-capricious, unbiased, without favouritism or nepotism, in pursuit of promotion of healthy competition and equitable treatment. It should conform to the norms which are rational, informed with reasons and guided by public interest, etc. All these principles are inherent in the fundamental conception of Article 14. This is the mandate of Article 14 of the Constitution of India. The court further held that reading the mandate of auction into its scheme would be completely contrary to the intent of the article apparent from its plain language. A constitutional mandate is an absolute principle that has to be applied in all situations; it cannot be applied in some and not tested in others. The absolute principle is then applied on a case-by- case basis to see which actions fulfil the requirements of the constitutional principle and which do not. It was held that auctions may be the best way of maximising revenue but revenue maximisation may not always be the best way to subserve public good. "Common good" is the sole guiding factor under Article 39(b) for distribution of natural resources. That, it needed little emphasis that disposal of all natural resources through auction is clearly not a constitutional mandate.
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30. At this juncture, reference may be made to the impugned order passed by the Chairman of the Kandla Port Trust. A perusal of the said order reveals that the said authority has considered the fact that the petitioner had accepted and acted upon the decision not to renew the lease for a period of thirty years and to the terms and conditions of the renewed lease under the document dated 27.06.2001. The Chairman took note of the fact that the decision of the Kandla Port Trust to renew the lease for twenty years was never challenged by the petitioner and that there was no vested right of the petitioner for renewal of the lease for thirty years available to the petitioner at any point of time. The reasoning of the Chairman to the extent he holds that the petitioner had no vested right for renewal of the lease for thirty years, is erroneous, inasmuch as, under clause (9) of the lease deed, an express right was conferred on the petitioner to opt for a new lease of the demised premises for a further period of thirty years, to commence from the date of expiry thereof on such condition as lessor may in his absolute discretion then determine. Thus, the right to seek further renewal for a period of thirty years was vested in the petitioner. However, it was for the lessor- Kandla Port Trust in its discretion to determine the terms and conditions thereof. Nonetheless, as observed hereinabove, the respondents sought to curtail the lease period of thirty years to twenty years and the petitioner accepted the same unconditionally and did not seek to challenge or question the same at the relevant time. Under the circumstances, at this belated stage, the petitioner cannot be permitted to seek implementation of clause (9) of the original lease deed which is no longer in existence due to efflux of time.
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31. Another reason advanced by the Chairman of Kandla Port Trust for not considering the request of the petitioner is that the subject lands are subject to certain directions issued by the Delhi High Court and therefore, in the eventuality of renewal also, it would be prudent to allow the leasehold rights to be auctioned which in turn, would fetch maximum and realistic price. In this regard, it may be germane to refer to the new land policy which has been placed on record by the petitioner. The said policy bears the heading "Policy Guidelines for Land Management by Major Ports, 2014"and, inter alia, makes provision for renewal of existing land leases and provides that in cases of renewal of existing leases with or without renewal option, the Port should verify if the land is required for its own use. If it is so required, the Port shall take possession of the land on expiry of lease. If the land is not required by the Port for its own use, the Port should then check whether the land use is consistent with the land use plan and whether the lessees are not in default. Thereafter, if it is so, the procedure laid down there under will be adopted for renewal of lease of land outside the Custom bond area. In the facts of the present case, admittedly the subject land is outside the Custom bond area, hence, the procedure which is required to be adopted for renewal of the lease as laid down in the said policy is as under:
"[c] During the process of renewal of existing leases, the Port is required to differentiate between those lease- agreements that stipulate automatic renewal and those that do not provide for such automatic renewal at the end of the lease period. In cases of renewal of existing leases, without automatic renewal option at the end of the lease-term, the land will be put to tender-cum- auction with the first right of refusal to be extended to Page 66 of 74 C/SCA/160/2013 JUDGMENT the existing lessee. The existing lessee should be allowed to match the H-1 bid. If any structures has been constructed by the earlier lessee on the leased land, it would be valued by a third party valuer to be agreed upon by the Port Trust and the earlier lessee and the successful bidder has to remit the value of the structures which would be passed on to the previous lessee. The bidding and auction would be only on the reserve price of the land. With a view to dissuade non- serious bids, EMD for a valid bid should be fixed at 10% of the updated/latest market value of the land being put on tender. If the only bidder is the existing lessee, the annual lease rental would be determined on the basis of the updated/latest market value notified as per Para 18(c) or the price quoted by the existing lessee in the tender-cum-auction, whichever is higher."
Thus, the new land policy makes provision for renewal of existing leases in the above referred terms.
32. Several contentions have been advanced by the learned counsel for the respective parties on the feasibility or otherwise of the Port Based Special Economic Zone which is proposed to be put up by the Kandla Port Trust. It is the case of the respondent - Kandla Port Trust that the subject land is required for the purpose of setting up a Port Based Special Economic Zone. In this regard, it has obtained approval of the Central Government. However, it appears that till date, the said project has not fructified. It is the case of the petitioner that it is not possible for the Kandla Port Trust to establish a Port Based Special Economic Zone on the subject lands in view of the CRZ-1 notification issued by the Central Government. In this regard, it may be noted that a similar issue came to be raised before this court in two writ petitions filed by the Kandla Port Trust being Special Civil Applications No.16316 of 2012 and No.16545 of 2012, which were decided vide a judgment Page 67 of 74 C/SCA/160/2013 JUDGMENT and order dated 26.12.2013 wherein the court has recorded findings to the effect that the requirement of land for setting up Special Economic Zone is not contrary to the environmental law. The court has also taken note of the fact that the Ministry of Environment has not restrained or negated the request for Port Based Multi Products Special Economic Zone for it to be allegedly in violation of modified CRZ Notification of the year 2011. The court also took note of a report submitted by the Institute of Remote Sensing, Anna University, Chennai as Nodal Agency for preparing 'demarcation of high tide line for the proposed area of SEZ' bearing 3600 hectares of land at Kandla which confirms the stand of the Kandla Port Trust that the alleged CRZ-1 restriction would not apply to the subject lands and that the lands would not be within the 'Sensitive Zone" so as to attract the alleged restriction. Thus, the said issue stands concluded by the above decision of this court and hence, the court does not deem it fit to deal with the extensive submissions advanced by the learned counsel for the petitioner in this regard. Even otherwise, whether or not, it is permissible for the Kandla Port Trust to set up a Port Based Special Economic Zone on the subject lands, is essentially a disputed question of fact and this court in a writ petition under Article 226 of the Constitution of India, would not embark upon a fact finding inquiry and render a finding one way or the other. Under the circumstances, the contention with respect to requirement or otherwise of the Kandla Port Trust of the subject lands for the purpose of setting up a Port Based Special Economic Zone, does not require to be entertained.
33. Another contention raised on behalf of the petitioner is that by virtue of the order of the Delhi High Court, all the Page 68 of 74 C/SCA/160/2013 JUDGMENT respondents were required to decide the representations made by the petitioner and that the respondents ought to have acted collectively and rendered a decision on the applications made by the petitioner and that the Chairman of the Kandla Port Trust could not have unilaterally taken a decision without consulting the other respondents. In this regard, it may be noted that right from the inception, the petitioner itself had addressed communications to the Chairman of the Kandla Port Trust along with a copy of the order of the Delhi High Court to render a decision on its applications. Under the circumstances, the petitioner is thereafter estopped from contending that the Chairman of the Kandla Port Trust could not have decided the representations. Besides, the contention of the petitioner that all the authorities ought to have collectively decided the representations of the petitioner, is too farfetched, inasmuch as, all the respondent authorities are independent authorities located at different places and having different jurisdictions and cannot be expected to come together merely to decide the representations made by the petitioner. No infirmity can, therefore, be found in the action of the Chairman of the Kandla Port Trust in deciding the representations.
34. At this juncture reference may be made to the representations dated 18.01.2012 and 09.06.2012 which were required to be decided pursuant to the order of the Delhi High Court. The representation dated 18.01.2012 (Annexure-21) is addressed to the Estate Manager, Kandla Port Trust requesting for renewal of the lease. In the said representation, reference has been made to clause (9) of the lease deed dated 05.03.1963 and it is stated that the petitioner had applied for renewal for thirty years but the authority had renewed the Page 69 of 74 C/SCA/160/2013 JUDGMENT same for twenty years only. Since the twenty years were likely to be completed, the petitioner's request for considering renewal of the lease for the balance ten years may be considered. Certain facts regarding the investment made by the petitioner and infrastructure set up by it have been stated. In the last paragraph it is stated that the Kandla Port Trust has done sample auction by way of e-tendering for salt through advertisement and efforts, but the outcome thereof is unsuccessful. That even after such a huge development has been done in the region by the existing lessees; entrepreneurs from various parts of the country still have not shown any interest in the auction. The representation dated 09.06.2012, once again is addressed to the Estate Manager, Kandla Port Trust, wherein it is stated that it is the consistent stand of Kandla Port Trust that the petitioner's lease was not renewed for the full period of thirty years as the leased land might be required by Kandla Port Trust for the port related activities in future. Reference is made to three documents which according to the petitioner have direct nexus with the decision to renew its lease, viz. (i) Land Use Plan dated 07.08.2001 valid upto 2020; (ii) CRZ Notification dated 06.01.2011 issued by MoEF; and (iii) Expiry of formal approval of MPSEZ granted by Central Government. It is further stated that in view of the above documents, it is not possible to put the leased land in the petitioner's possession for any other use except manufacturing salt. Due to CRZ notification restrictions and the lapse of the permission to establish SEZ in Kandla on 06.05.2012, the object for resumption of the petitioner's land and the decision to renew its lease for twenty years only cannot stand legal scrutiny anymore. That in this changed scenario the Kandla Port Trust's decision to renew the petitioner's lease for twenty Page 70 of 74 C/SCA/160/2013 JUDGMENT years only is required to be reviewed and a fresh decision in conformity with the original clause 9 of the indenture of lease is inevitable. Without prejudice to the above, a request is made to renew the lease for thirty years. On a plain reading of the above two representations, it is amply clear that the same are addressed to the Kandla Port Trust only and the subject matter thereof also pertains only to the Kandla Port Trust. Accordingly, merely before the Delhi High Court there were several other respondents and the directions issued by the said court were to the respondents in general, the same cannot be construed to mean that such representations were required to be dealt with by all the respondents, including those respondents who are not directly concerned with the subject matter of the said representations. In the opinion of this court, apart from the fact that both the above representations were addressed only to the Kandla Port Trust, even the subject matter thereof relates to the Kandla Port Trust only, under the circumstances, the same have rightly been decided by the Chairman of the Kandla Port Trust and the fact that the other respondents have not decided such representations would not tantamount to non- compliance of the order of the Delhi High Court.
35. A perusal of the reliefs claimed in the petition reveals that the relief prayed for vide paragraph 10(A) pertains to a direction to renew the lease for a further period of ten years; the relief prayed for vide paragraph 10(B) relates to review and reconsideration of the decisions dated 25.07.1997 and 11.02.2000 with a direction to renew the lease for a further period of ten years or thirty years; the relief prayed for vide paragraph 10(C) again relates to renewing the lease for a further period of ten years; vide the relief prayed for vide Page 71 of 74 C/SCA/160/2013 JUDGMENT paragraph 10(EE) the petitioner seeks a direction not to initiate proceedings under Public Premises (Eviction of Unauthorized Occupants) Act, 1971 for a further period of ten years with effect from 10.01.2013. Thus, in effect and substance, all the reliefs prayed for by the petitioner are based upon clause (9) of the original lease deeds of 1963 and 1964, which, as held hereinabove, are no longer in existence. The petitioner having unconditionally accepted the renewal of lease for a further period of twenty years and having agreed to handover the possession of the subject lands upon determination thereof, can no longer fall back upon clause (9) of the previous lease deeds. Under the circumstances, the petitioner is not entitled to any of the reliefs claimed for in the petition.
36. However, as observed hereinabove, in the light of the New Land Policy of 2104, the respondent - Kandla Port Trust is not prohibited from renewing the lease for a further period, subject to following procedure as laid down in clause 16.3 thereof, which provides for renewal of the existing leases.
37. As regards the contention that the subject land does not vest in the Kandla Port Trust under section 29 of the Major Port Trusts Act, as rightly pointed out by the learned counsel for the respondents, the petitioner in the memorandum petition has averred on oath that the Central Government had vested approximately 2,20,000 acres of land in Kandla Port Trust for the purpose of its development as at that time those lands were under the control and administration of the Central Government. The lands that were vested in Kandla Port had high salinity and were not fit for any other use except manufacturing of salt. Thus, it being the case of the petitioner Page 72 of 74 C/SCA/160/2013 JUDGMENT that the subject land was vested in the Kandla Port Trust, the petitioner cannot now be permitted to adopt a contrary stand by contending that under section 29 of the Major Port Trusts Act, the land is not vested in the Kandla Port Trust.
38. One of the contentions raised on behalf of the respondents is that in the light of the statement made by the learned Additional Solicitor General before the Delhi High Court, it would not be possible for this court to grant any relief to the petitioner as the same would run contrary to the relief granted by the Delhi High Court. In this regard, it may be noted that during the pendency of the present petition, the petitioner had approached the Delhi High Court in W.P. (Civil) No.11550 of 2009 seeking a clarification as the order dated 15.12.2000 passed by the Delhi High Court was coming in the way of the Gujarat High Court in disposing of their writ petition on merits. The court made it clear that individual grievance of the applicants is not a matter of public interest litigation before it. It is for the Gujarat High Court to consider their petitions on merits. It would be open for the applicants to urge all points in their favour as it would be open to the respondents including the Kandla Port Trust to urge points in their favour with regard to the application seeking renewal of the lease. The court made it clear that in view of the above, there was no necessity of vacating or clarifying any of the orders passed by it. It was, therefore, permissible for this court to consider the present petition on merits and render a decision thereon.
39. In the light of the above discussion, the petition fails and is, accordingly, dismissed. However, the petitioner shall be granted permission to lift the salt manufactured and the Page 73 of 74 C/SCA/160/2013 JUDGMENT byproduct gypsum lying upon the subject lands, as also the existing infrastructure under the supervision of the Kandla Port Trust. Besides, for any reason, if the Kandla Port Trust decides not to go ahead with its existing plan and thereafter decides to put up the subject lands on auction for salt manufacturing and related activities, the petitioner shall be treated as an existing lessee of the subject lands and thereafter, shall be given the option to match the highest bidder as provided in the New Land Policy of 2014 referred to hereinabove. Rule is discharged with no order as to costs.
40. At this stage, Mr. Dhaval Dave, learned counsel for the petitioner has prayed that the interim relief granted earlier be continued for a period of two months so as to enable the petitioner to avail of its remedy before the higher forum. Such request is vehemently opposed by Mr. Dhaval Vyas, learned counsel for the respondent - Kandla Port Trust.
41. Having regard to the fact that the interim relief granted by this court way back on 9th January, 2013 has continued till date, the same shall be continued for a further period of eight weeks from today.
(HARSHA DEVANI, J.) parmar* Page 74 of 74