Writ petition
Dushyant Pandya
(Querist) 02 June 2013
This query is : Resolved
Respected,
Writ Petition filed under article 226 and same was rule by Hon'ble High Court.
Willing to know effect and meaning of "RULE"
Please advise.
R.K Nanda 
(Expert) 02 June 2013
state full facts.
Dushyant Pandya
(Querist) 02 June 2013
Sir, just willing to know meaning and effect of word RULE
High Regards
V R SHROFF
(Expert) 02 June 2013
Second ACADEMIC QUERY BY YOU. PL AVOID.
Ask Legal problem you are facing if any. This is not a Tuition Class to teach..
Dushyant Pandya
(Querist) 03 June 2013
Sir/s,
Petition is RULE and interim relied not granted.
Is it not contrary?
please advise.
Anirudh
(Expert) 03 June 2013
If you have got the order passed by the Court, better paste the same here, so that one can go through and then provide answer to your query.
Dushyant Pandya
(Querist) 03 June 2013
SCA/18842/2011 1/34 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No. 18842 of 2011
To
SPECIAL CIVIL APPLICATION No. 18865 of 2011
With
SPECIAL CIVIL APPLICATION No. 18794 of 2011
to
SPECIAL CIVIL APPLICATION No. 18797 of 2011
With
SPECIAL CIVIL APPLICATION No. 18800 of 2011
to
SPECIAL CIVIL APPLICATION No. 18803 of 2011
With
SPECIAL CIVIL APPLICATION No. 136 of 2012
=========================================
URVAKUNJ NICOTINE LTD - Petitioner(s)
Versus
UNION OF INDIA & 3 - Respondent(s)
=========================================
Appearance :
MR ASIM J. PANDYA for HL PATEL ADVOCATES for Petitioners in SPECIAL CIVIL
APPLICATIONS No.18842 of 2011, 18844 to 18865 of 2011
MR MIHIR THAKORE, SR. ADVOCATE with MR ASIM PANDYA for Petitioners in SPECIAL
CIVIL APPLICATION No.18843 of 2011
MR DHAVAL DAVE, SR. ADVOCATE with MR UDAYEN VYAS for Petitioners in SPECIAL
CIVIL APPLICATIONS No.18000 to 18803 of 2011
MR SATYAJEET DESAI for Petitioner in SPECIAL CIVIL APPLICATIONS No.18794 to
18797 of 2011
MS MEGHA JANI for Petitioner in SPECIAL CIVIL APPLICATION No.136 of 2012
MR PS CHAMPANERI for Respondent : 1,
MR HARIN RAVAL, SR. ADVOCATE with MR DHAVAL D VYAS for Respondent : 2 & 4
NOTICE SERVED BY DS for Respondent : 3,
=========================================
CORAM : HONOURABLE MS.JUSTICE HARSHA DEVANI
Date : 27/02/2012
ORAL ORDER :
1. Learned advocates for the petitioners have tendered draft
SPECIAL CIVIL APPLICATION/18842/2011 08/11/2012 04:57:23 PM
SCA/18842/2011 2/34 ORDER
amendments in each of the petitions. The amendments are
allowed in terms of the drafts. The same shall be carried out
forthwith.
2. All these petitions raise common questions of facts and law
and hence, the same were heard together for the purpose of
admission and grant of interim relief. Since Special Civil
Application No.18843 of 2011 has been argued as the lead
petition, reference is made to the facts as appearing in the said
petition.
3. By these petitions under Article 226 of the Constitution of
India, the petitioners have challenged the decision dated
26.8.2011 of the respondent No.2 – Kandla Port Trust of not
renewing the leases of the petitioners and demanding back the
possession of the leased lands from the petitioners. The
petitioners have prayed that the respondent No.1 be directed
to grant approval to the separate resolutions passed by the
respondent No.2 – Kandla Port Trust in respect of each of the
petitioners whereby decisions have been taken to renew the
leases in favour of the petitioners for a further period of thirty
years or less as the case may be. The petitioners have also
challenged the decision dated 8.7.2011 of the respondent No.1
refusing to grant approval to the resolutions of the Kandla Port
Trust and directing the respondent No.2 not to renew the
leases of the petitioners; the notices of eviction issued by the
respondent No.4 under the Public Premises (Eviction of
Unauthorized Occupants) Act, 1971 in case of individual
petitioners as well as the revised compensation bills issued by
the respondent No.2 in case of individual petitioners.
SPECIAL CIVIL APPLICATION/18842/2011 08/11/2012 04:57:23 PM
SCA/18842/2011 3/34 ORDER
4. The facts giving rise to the present petitions stated briefly are
that the petitioners in each of the petitions were given lands on
lease by the respondent No.2 – Kandla Port Trust from time to
time by separate leases for a period of thirty years; in some
cases, for a period of less than thirty years. The lease period in
the case of each of the petitioners expired in the years 2003
and 2004. Prior to the expiry of the lease, the petitioners
exercised option under clause (9) of the respective indentures
of lease for renewal of the leases for a further period of thirty
years. The Kandla Port Trust vide separate resolutions in case
of individual petitioners, decided to renew the leases for a
further period of thirty years and forwarded the proposals
recommending such renewal to the Central Government. In the
meanwhile, somewhere around September, 2009, a writ
petition by way of public interest litigation came to be
presented before the Delhi High Court, seeking a writ of
mandamus against the Union of India to take back possession
of 16,000 acres of Government land and seeking eviction of
the persons in occupation of the said lands. The petitioners
therein, inter alia, sought a declaration that leases granted
arbitrarily on nomination basis on port land henceforth be
declared as null and void and it be directed that the land
henceforth may be leased out to private sectors and
individuals only on the basis of competitive bidding and lease
rental of 6% of the market value of property. The petitioners
also sought an independent investigation by a Special
Investigation Team into the role of officers of the Shipping
Ministry and Kandla Port Trust in allowing illegal occupation of
Government land at the Kandla Port Trust.
5. Before the Delhi High Court, the learned Assistant Solicitor
SPECIAL CIVIL APPLICATION/18842/2011 08/11/2012 04:57:23 PM
SCA/18842/2011 4/34 ORDER
General was initially directed by the court by an order dated
9.9.2009 not to execute/renew any lease except in accordance
with the guidelines issued by the Ministry of Shipping in 2004.
The proceedings are still pending before the Delhi High Court
which is monitoring the entire process and has directed that
leases should not be renewed and that fresh lease should be
given by way of public auction. The court also appears to have
directed that steps be taken under the provisions of the Public
Premises (Eviction of Unauthorized Occupants) Act, 1971 for
evicting the lessee whose leases have expired, within a
stipulated time frame. Subsequently, on 15.12.2010, the
learned Assistant Solicitor General assured the Delhi High
Court that before the next date of hearing, no further renewal
of lease shall take place without leave of the said court. Later
on, vide order dated 23.2.2011, the court ordered that the
interim order passed on the earlier occasion shall remain in
force until further orders.
6. It appears that the writ petitioners in Special Civil Application
No.18843 of 2011 approached this court by way of a writ
petition being Special Civil Application No.2362 of 2008 to set
aside the decision of the respondents conveyed to the
petitioners through the mode of caveat dated 2.2.2008 by the
respondent No.1 filed before the Court of the learned Principal
Civil Judge, Gandhidham, Kutch, for taking back the land
admeasuring 1010.156 acres, situated at Kandla allotted by
the respondent No.1 – Kandla Port Trust on lease basis. The
petitioners also prayed for an appropriate writ directing the
respondents to renew the lease of the land admeasuring
1010.156 acres allotted by the Kandla Port Trust as per clause
(9) of the indenture of lease deed executed between the
SPECIAL CIVIL APPLICATION/18842/2011 08/11/2012 04:57:23 PM
SCA/18842/2011 5/34 ORDER
Kandla Port Trust and the erstwhile allottee. The said petition
came to be disposed of vide order dated 25.2.2010 with a
direction to the respondent No.1 to afford an opportunity of
hearing to the petitioners therein and after considering the
reply of the petitioners, take appropriate decision thereon and
communicate the same to the petitioners within a period of
four weeks from the date of conclusion of the hearing. The
court further directed that status quo prevailing on the said
date qua construction, title and possession of the land in
question shall be maintained save and except the day to day
routine manufacturing and other business activities of the
petitioner company. Pursuant to the aforesaid order, after
affording an opportunity of hearing to the said petitioners, vide
order dated 13.7.2010, the lease came to be extended till
31.3.2011. It may be noted that in the case of the other writ
petitioners, they had no occasion to approach this court and as
such, there was no direction to the respondent No.1 to consider
their cases. However, in case of all the other petitioners, the
Ministry vide order dated 27th July, 2010 renewed the
respective leases upto 31.03.2011. Thereafter, individual
notices came to be issued to the individual petitioners on
different dates for handing over the possession of the premises
on the ground that the Central Government has, by
communication dated 8.7.2011, decided not to extend the
leases any further. Subsequently, the notices came to be
issued under the provisions of the Public Premises (Eviction of
Unauthorized Occupants) Act, and the proceedings are pending
before the Estate Officer. Later on, compensation bills have
been raised by the Kandla Port Trust seeking payment
thereunder. Being aggrieved, the petitioners have presented
the present writ petitions.
SPECIAL CIVIL APPLICATION/18842/2011 08/11/2012 04:57:23 PM
SCA/18842/2011 6/34 ORDER
7. It may be noted that in response to the averments made in the
petitions, none of the respondents have chosen to file any
affidavit in-reply in the matter. However, a copy of the writ
petition filed before the Delhi High Court as well as various
orders passed by the Delhi High Court from time to time have
been placed on record by the learned advocate appearing on
behalf of the Kandla Port Trust.
8. Mr. Mihir Thakore, learned Senior Advocate with Mr. Asim
Pandya, learned advocate appearing on behalf of the
petitioners in Special Civil Application No.18843 of 2011 invited
attention to the provisions of clause (9) of the original
indenture of lease, to submit that the same specifically
contains a covenant for renewal at the option of the lessee. It
was submitted that the petitioners having already exercised
their option for renewal of the lease of the demises premises,
the Kandla Port Trust is, therefore, obliged to renew the lease.
It was pointed out that the Kandla Port Trust, on an
independent assessment of the matter, had vide separate
resolutions decided to renew the lease for a further period of
thirty years with effect from 10.4.2004 to 9.4.2034. Section 34
of the Major Ports Trust Act, 1963 (hereinafter referred to as
“the Act”), contemplates obtaining the approval of the Central
Government where the lease is for a period exceeding thirty
years. It was contended that in the present case, the
petitioners seek renewal of lease for a period of thirty years
which is well within the authority of the Kandla Port Trust as
envisaged under section 34 of the Act and hence, there was no
need for the Kandla Port Trust to seek the approval of the
Central Government. It was submitted that renewal of a lease
SPECIAL CIVIL APPLICATION/18842/2011 08/11/2012 04:57:23 PM
SCA/18842/2011 7/34 ORDER
amounts to a fresh lease and hence, each lease being a
separate lease, the period of the separate leases cannot be
clubbed together. Accordingly, if a particular lease is for a
period not exceeding thirty years, no approval of the Central
Government is necessary.
9. Inviting attention to the order dated 13.7.2010 whereby the
Government of India has renewed the lease till 31.3.2011, it
was argued that if the Kandla Port Trust has taken a decision to
renew the lease for thirty years, the Central Government has
no authority to reduce the same as Kandla Port Trust has a
statutory right to grant leases not exceeding a period of thirty
years. Referring to clause 6.2.2.2 of the Land Policy for Major
Ports (hereinafter referred to as the “Land Policy”), it was
submitted that clause (b) thereof provides that if renewal is
provided for in the existing lease agreement, it can be renewed
for a total period not exceeding thirty years including the
original lease period; and clause (d) thereof provides that
extension/renewal of any lease for the original lessee beyond
thirty years would be made only after the recommendation of
the Board, recording clearly the reasons thereof and the
approval of the Empowered Committee and that such cases
will be finalized by the Ministry of Shipping. It was submitted
that the said clause runs contrary to the provisions of section
34 of the Act inasmuch as, section 34 vests in the Kandla Port
Trust a right to execute leases for a period not exceeding thirty
years. Reliance was placed upon the decision of the Supreme
Court in the case of Delhi Development Authority v. Durga
Chand Kaushish, (1973) 2 SCC 825, for the proposition that a
renewal of a lease is really the grant of a fresh lease. It is
called a “renewal” simply because it postulates the existence
SPECIAL CIVIL APPLICATION/18842/2011 08/11/2012 04:57:23 PM
SCA/18842/2011 8/34 ORDER
of a prior lease which generally provides for renewals as of
right. In all other respects, it is really a fresh lease. It was
submitted that under the circumstances, renewal of lease
being a fresh lease, there is no question of clubbing the period
of earlier lease and the subsequent lease for computing the
period of thirty years under section 34 of the Act. It was further
submitted that the leases granted by the Kandla Port Trust are
statutory leases and that the right of the Kandla Port Trust to
enter into leases for a period not exceeding thirty years is
unfettered. Accordingly, the Port or the Ministry has to
exercise discretion in consonance with the Act and the Policy.
10.Next it was submitted that the entire decision not to renew the
leases in favour of the petitioners is based upon the orders
passed by the Delhi High Court in the writ petition by way of a
public interest litigation presented before the said court.
Inviting attention to the resolutions passed by the Kandla Port
Trust approving of the proposals for renewing the lease in
favour of the petitioners for a period of thirty years, it was
submitted that the petitioners are seeking enforcement of the
aforesaid decision of the Kandla Port Trust which has authority
to renew the lease. However, the leases have been renewed
only upto March 2011 as a result of the public interest litigation
filed before the Delhi High Court. It was submitted that the
petitioners are aggrieved by the reference by the Kandla Port
Trust to the Central Government seeking approval of the lease.
According to the learned counsel, the Kandla Port Trust which is
the competent authority to take a decision in this regard has
taken a decision to extend the lease for thirty years and that
the petitioners are seeking enforcement of the said decision.
In the meanwhile, till the leases are renewed, no coercive steps
SPECIAL CIVIL APPLICATION/18842/2011 08/11/2012 04:57:23 PM
SCA/18842/2011 9/34 ORDER
should be taken against the petitioners. It was argued that
though no new lease deeds have been executed, there is an
approval by the authority who has to approve it. It was argued
that the Kandla Port Trust is required to independently consider
the question of renewal of the leases in favour of the
petitioners and that it is not permissible for the Central
Government to issue directions interfering with the exercise of
the Kandla Port Trust of its statutory powers under section 34
of the Act. Referring to the various provisions of the Act, it was
submitted that even under section 111 of the Act, the Central
Government cannot issue directions which are violative in the
face of the statute.
11.It was argued that the entire cause of action in the abovereferred
writ petition presented before the Delhi High Court has
arisen within the territorial jurisdiction of this High Court and
the Delhi High Court lacks territorial jurisdiction to decide the
said case or to pass any orders thereon. Under the
circumstances, the orders passed by the Delhi High Court
being without jurisdiction are non est and required to be
ignored by this court. It was urged that the petitioners have a
right to approach this court for enforcement of a statutory right
in respect of which they have come before this court which has
the jurisdiction to adjudicate the same. It was further
submitted that even if the respondents do not renew the lease
in the light of the orders of the Delhi High Court, but the
petitioners should not be evicted from the premises in
question. It was urged that in the circumstances, the petitions
deserve to be admitted by granting interim relief restraining
the respondents from evicting the petitioners.
SPECIAL CIVIL APPLICATION/18842/2011 08/11/2012 04:57:23 PM
SCA/18842/2011 10/34 ORDER
12..Mr. Dhaval Dave, learned Senior Advocate, with Mr. Udayan
Vyas, learned advocate for the writ petitioners in Special Civil
Application No.18800 to 18003 of 2011, adopted the
submission advanced by the Mr. Thakore and further submitted
that in view of the provisions of section 34 of the Act, the
Kandla Port Trust is empowered to execute leases for a period
not exceeding thirty years. By the various resolutions passed
by it, the Kandla Port Trust has decided to renew the leases in
favour of the petitioners for a period of thirty years. Though the
resolutions operate on their own strength, concurrence of the
Central Government has been sought under section 34(1) of
the Act. It was submitted that the decision taken by the Central
Government not to renew the leases in favour of the
petitioners beyond 31.3.2011 appears to be in view of the
statement made by the learned Assistant Solicitor General
before the Delhi High Court. According to the learned counsel,
the counsel for the respondent No.1 could not have made any
statement contrary to the statutory provisions and that even if
such statement has been made, the same would not prevent
the petitioners from seeking an appropriate redressal before
this court. It was urged that pending the petitions, the
possession of the petitioners is required to be protected.
13.Mr. Dave further submitted that in exercise of powers under
section 34 of the Act, the Kandla Port Trust is required to
exercise discretion on its own and should not be weighed down
by instructions of any other authority. Reliance was placed
upon the decision of the Supreme Court in the case of
Commissioner of Police, Bombay v. Gordhandas Bhanji,
AIR 1952 SC 16, for the proposition that when a discretion is
vested in an authority, he is bound to exercise it and bring to
SPECIAL CIVIL APPLICATION/18842/2011 08/11/2012 04:57:23 PM
SCA/18842/2011 11/34 ORDER
bear on the matter his own independent and unfettered
judgement and decide for himself. Adverting to the facts of the
present case, it was submitted that the Kandla Port Trust
instead of exercising discretion by independently deciding the
question as to whether or not the leases should be renewed, is
acting upon the instructions of the Central Government. It was
submitted that the authority which is vested with the power is
required to exercise it and it should not be acted upon
instructions of any other authority while exercising its statutory
powers. The learned counsel submitted that nonimplementation
of the decision of the Kandla Port Trust and the
threat of eviction has been opposed by the respondents on the
ground of litigation before the Delhi High Court. It was
submitted that assuming that the respondents are right in their
submission that they have to honour the statement made
before the Delhi High Court, at best, the petitioners cannot
pray for renewal of the lease. However, today the petitioners
are in possession and if ultimately no relief is granted and the
petitioners are removed, then even if possession is to be
restored, they will suffer irreparable damages. In the
circumstances, the possession of the petitioners is required to
be protected for the time being. Referring to the order dated
12.10.2011 passed by the Delhi High Court, it was submitted
that the same would cover those persons whose leases have
come to an end and are in illegal occupation, whereas in the
facts of the present case, a decision has been taken by the
Kandla Port Trust to renew the leases and as such, the
petitioners would not fall within the ambit of the order dated
12.10.2011 passed by the Delhi High Court. It was submitted
that in the circumstances, there is no question of any
conflicting orders being passed by this court in case relief is
SPECIAL CIVIL APPLICATION/18842/2011 08/11/2012 04:57:23 PM
SCA/18842/2011 12/34 ORDER
granted to the petitioners.
14.Mr. Asim Pandya, learned advocate appearing for the writ
petitioners in Special Civil Applications No.18442 of 2011 and
18844 to 18865 of 2011 was emphatic about the fact that the
Kandla Port Trust has not chosen to file any reply controverting
the averments made in the petitions. It was submitted that
before the Delhi High Court, the counsel for the Union of India
had made a wrong concession stating that the leases would
not be renewed without the approval of the Delhi High Court.
According to the learned counsel a wrong concession made by
the counsel cannot bind the parties, more so, when it was not a
statement made by the Kandla Port Trust which is the authority
vested with the statutory powers of renewing the leases. In
support of his submissions, the learned counsel placed reliance
upon the decision of the Supreme Court in the case of Union
of India v. Mohanlal Likumal Punjabi, AIR 2004 SC 1704,
for the proposition that wrong concession made by a counsel
cannot bind the parties when statutory provisions clearly
provided otherwise. That apart, the applicability of the statute
or otherwise to a given situation or the question of statutory
liability of a person/institution under any provision of law would
invariably depend upon the scope and meaning of the
provisions concerned and has got to be adjudged not on any
concession made. Any such concessions would have no
acceptability or relevance while determining rights and
liabilities incurred or acquired in view of the axiomatic
principle, without exception, that there can be no estoppel
against statute. It was submitted that the statement made by
the learned Assistant Solicitor General, at best, is a stand of
the Central Government which has to be tested on the anvil of
SPECIAL CIVIL APPLICATION/18842/2011 08/11/2012 04:57:23 PM
SCA/18842/2011 13/34 ORDER
the statutory provisions. It was submitted that the statement
made by the learned Assistant Solicitor General was without
any authority of law and flies in the face of the provisions of
section 34 of the Act. Under the circumstances, the power of
judicial review cannot be taken away. It was further submitted
that the petitioners before the Delhi High Court have not joined
the affected parties and hence, the statement will not bind the
petitioners as well as this court.
15.Mr. Pandya invited the attention of the court to the affidavit
filed by the Kandla Port Trust before the Delhi High Court in the
above referred writ petition to submit that the litigation before
the Delhi High Court is different in nature and this court should
not be influenced by the said litigation. Referring to the
relevant Land Policy, it was submitted that the same states
that a lease can be renewed even if there is no renewal clause.
The only requirement is that if it is needed for the Port's use,
such renewal may not be granted. It was urged that the
respondents have not filed any affidavit stating that the land is
required for the use of the port and as such there is no
justification for denying renewal of the leases in favour of the
petitioners.
16.Ms. Megha Jani, learned advocate for the writ petitioners in
Special Civil Application No.136 of 2012 adopted the
submissions made by Mr. Thakore and invited attention to the
Land Policy of 2010, to submit that the same contemplates
renewal of existing leases and that the ground not to renew the
lease is contrary to the Land Policy. It was further submitted
that insofar as the question of revised compensation bill is
concerned, the Kandla Port Trust has forwarded the proposal to
SPECIAL CIVIL APPLICATION/18842/2011 08/11/2012 04:57:23 PM
SCA/18842/2011 14/34 ORDER
the Tariff Authority for Major Ports (TAMP) and that as of today,
they are paying lease rent as per the rates prescribed by the
TAMP. However, the revised compensation bill has been issued
on the basis of the proposed rates for the last year, which are
not yet approved. It was submitted that the Kandla Port Trust
can charge as per the rates prescribed by the TAMP and it is
not permissible for it to charge on the basis of proposed rates.
It was submitted that the petitioners are already paying rent at
the rates prescribed by the TAMP and that they can be put to
condition of payment of 10% of the proposed rates.
17.Ms. Jani further submitted that the petitioner was never
informed regarding the renewal of the lease upto 31.3.2011
and came to know about the same only when the petitioner
received the letter dated 26.8.2011 informing the petitioner
that the competent authority – Union of India has by the
communication dated 8th July, 2011 conveyed its decision not
to renew/extend the term under/of lease and rights there
under. It was submitted that the Kandla Port Trust which is the
competent authority had, on 4.2.2003, taken a decision to
renew the lease for a period of twenty years, under the
circumstances, since the lease does not exceed a period of
thirty years, in view of the provisions of section 34 of the Act it
was well within the authority of the Kandla Port Trust to renew
the lease and as such the decision of the Union of India not to
renew the lease is without any authority of law.
18.Mr. Satyajeet Desai, learned advocate for the petitioners in
Special Civil Applications No.18794 to 19797 of 2001 has
reiterated the submissions advanced by Mr. Mihir Thakore and
Mr. Dhaval Dave.
SPECIAL CIVIL APPLICATION/18842/2011 08/11/2012 04:57:23 PM
SCA/18842/2011 15/34 ORDER
19.Opposing the petitions, Mr. Harin Raval, learned Senior
Advocate with Mr. Dhaval Vyas, learned advocate for the
respondent No.2 – Kandla Port Trust invited attention to the
provisions of the Act and more particularly to section 2(ia),
which defines “immovable property” and section 2(k) which
defines “land” and section 29(1)(a) which relates to public
properties vested in the Board, to point out that 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. Referring to the provisions of section 34 of the Act,
it was submitted that there has to be a purposive and
meaningful interpretation of section 34, otherwise it will tend
to permit the Board to circumvent the provision by executing
successive contracts. According to the learned counsel, what
has to be seen is the overall tenure and that the provisions of
section 34 of the Act, cannot be interpreted to defeat the
statutory intent. Inviting attention to sub-section (i) of section
111 of the Act, which empowers the Central Government to
issue directions to the Board, it was submitted that the
authority and every Board, in the discharge of its functions
under the Act, is bound by such directions on questions of
policy as the Central Government may give in writing from
time to time. It was submitted that under the circumstances,
the Board is bound by the Policy framed by the Central
Government in the discharge of its functions under the Act.
20.The learned counsel further invited the attention of the court
to the various orders passed by the Delhi High Court from time
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SCA/18842/2011 16/34 ORDER
to time in the above referred writ petition. Referring to the
order dated 9.9.2009 whereby the learned Assistant Solicitor
General was directed till further orders not to execute/renew
any lease except in accordance with the guidelines issued by
the Ministry of Shipping in 2004, it was submitted that the said
order was never vacated. Inviting attention to the order dated
23.2.2011, it was pointed out that it has been directed that the
interim order passed on an earlier occasion shall remain in
force until further orders. It was submitted that the Delhi High
Court is in seisin of the matter and is monitoring the same and
as such, any interim relief granted by this court would be in
direct conflict with the directions issued by the Delhi High
Court. It was submitted that the petitioners have been
communicated that by orders dated 13.7.2010 and 27.7.2010
as the case may be, the competent authority – Union of India
has extended their leases till 31.3.2011. It was submitted that
the said orders also fly in the face of the orders passed by the
Delhi High Court and as such the officer who has passed the
orders is under a serious cloud. It was urged that in keeping
with judicial comity, unless there is a variation of the order of
the Delhi High Court in the matter of auction, extension and in
the matter of expectation that all proceedings under the Public
Premises (Eviction of Unauthorized Occupants) Act, would be
concluded within three months from the order dated 11th
January, 2010, this court ought not to grant any interim relief
as any order of protection that may be passed by this court
would be contradictory to the orders passed by the Delhi High
Court. It was submitted that an order without jurisdiction does
not bear any seal of invalidity unless the same is expressly set
aside. Reliance was also placed upon the decision of the
Supreme Court in the case of Krishnadevi Malchand
SPECIAL CIVIL APPLICATION/18842/2011 08/11/2012 04:57:23 PM
SCA/18842/2011 17/34 ORDER
Kamathia and others v. Bombay Environmental Action
Group and others, (2011) 3 SCC 363, and more particularly
paragraph 16 thereof, to submit that it is a settled legal
proposition that even if an order is void, it requires to be so
declared by a competent forum and it is not permissible for
any person to ignore the same merely because in his opinion,
the order is void. It was submitted that the competent forum to
say that the order of the Delhi High Court is bad is the
Supreme Court which is the appropriate forum. Under the
circumstances, the respondent authorities are bound by the
orders passed by the Delhi High Court and as such, the
respondents would be put in an embarrassing position if orders
contradictory to the directions issued by the Delhi High Court
are passed by this court in the present petitions. It was
submitted that in all the cases, the leases have been extended
till 31.3.2011 and vide order dated 13.7.2010 in the case of the
writ petitioners in Special Civil Application No.18843 of 2011
and vide order dated 27.7.2010 in cases of other writ
petitioners, and the said orders are duly communicated to the
petitioners. Inviting attention to the reliefs claimed in the
petitions, it was pointed out that the orders dated 13.7.2010
and 27.7.2010 are not subject matter of challenge in any of the
petitions and that the said orders have been permitted to live
through and the petitioners have acquiesced with the same.
21.Reliance was placed upon a decision of the Supreme Court in
the case of APM Terminals S.B.V. v. Union of India and
another, (2011) 6 SCC 756, for the proposition that the
Government is entitled to change its policy with changing
circumstances. The Government has the discretion to adopt a
different policy, alter or change its policy to make it more
SPECIAL CIVIL APPLICATION/18842/2011 08/11/2012 04:57:23 PM
SCA/18842/2011 18/34 ORDER
effective. The only qualifying condition is that such a change in
policy must be free from arbitrariness, irrationality, bias and
malice and must be in conformity with the principle of
Wednesbury reasonableness. Reverting to the facts of the
present case, it was submitted that the Central Government
has decided to go for auctioning the lands held by the Kandla
Port Trust as stated before the Delhi High Court. Accordingly,
the petitioners have been communicated by the Kandla Port
Trust vide communications dated 26.8.2011 that the
competent authority – Union of India has conveyed its decision
not to renew/extend the term under/of the lease and their
rights thereunder. It was submitted that in view of the fact that
the lease had not been renewed beyond 23.3.2011, notices
dated 25.11.2011 came to be issued under sub-section (1) and
clause (b) (ii) of sub-section (2) of section 4 of the Public
Premises (Eviction of Unauthorized Occupants) Act, 1971.
Reliance was placed upon an unreported decision of the
Supreme Court in the case of Centre for Public Interest
Litigation and others v. Union of India and others in Writ
Petition (Civil) No.423 of 2010, on 2.2.2012, wherein the
Supreme Court has held that in the field of contracts, the State
and its instrumentalities should design their activities in a
manner which would ensure competition and nondiscrimination.
They can augment their resources but the
object should be to serve the public cause and to do public
good by resorting to fair and reasonable methods. The learned
counsel further submitted that the matter is under examination
of the Delhi High Court whose jurisdiction has not been
questioned. In the memorandum of the petitions, the
petitioners have themselves stated that they would be filing
appropriate proceedings before the Delhi High Court and the
SPECIAL CIVIL APPLICATION/18842/2011 08/11/2012 04:57:23 PM
SCA/18842/2011 19/34 ORDER
Supreme Court to set right the whole proceedings. In the
circumstances, at this juncture, there is no cause for
entertaining the petitions. Reliance was placed upon a decision
of the Supreme Court in the case of Union of India and
another v. International Trading Co. & another, (2003) 5
SCC 437, for the proposition that if the State Government acts
within the bounds of reasonableness, it would be legitimate to
take into consideration the national priorities and adopt trade
policies. The ultimate test is whether on the touchstone of
reasonableness the policy decision comes out unscathed.
Reasonableness of restriction is to be determined in an
objective manner and from the standpoint of interests of the
general public and not from the standpoint of the interests of
persons upon whom the restrictions have been imposed or
upon abstract consideration. A restriction cannot be said to be
unreasonable merely because in a given case, it operates
harshly. It was submitted that in the facts of the present case,
the action of the respondents has not been challenged as
being mala fide.
22.Inviting attention to the provisions of clause (9) of the lease
deed, it was pointed out that the right sought to be enforced
by the petitioners is a right of contract. The right to renewal is
a one time stand alone right and there is no time limit. It was
submitted that the said right has been dealt with by the
appropriate authority and stands exhausted. In the
circumstances, there is no further right to seek an extension. It
was submitted that in the present case, no prejudice is caused
to the petitioners who are not debarred from taking part in a
transparent mode of dealing with the government property and
that discretionary remedy and equitable considerations prevail
SPECIAL CIVIL APPLICATION/18842/2011 08/11/2012 04:57:23 PM
SCA/18842/2011 20/34 ORDER
and public interest outweighs the private interest. It was,
accordingly, urged that the petitions being devoid of merit, are
required to be dismissed.
23.Mr. P. S. Champaneri, learned Assistant Solicitor General for
the respondent No.1 – Union of India has adopted the
submissions advanced by Mr. Harin Raval.
24.In rejoinder, dealing with the contention that the order dated
13.7.2010 has not been challenged by the petitioners, Mr.
Thakore invited attention to the first paragraph of the writ
petition which sets out the challenge in the petition wherein
the petitioner has specifically stated that the petitioner is
challenging the decision dated 13.7.2010. It was submitted
that, however, it appears that due to inadvertence, the same
has been left out in the relief clause. It was submitted that in
other cases, such orders extending the leases have never been
communicated to the petitioners. It was argued that according
to the respondents, a public interest litigation is pending before
the Delhi High Court wherein the orders have been passed
from time to time. The question that, therefore, arises for
consideration is as to whether this court has jurisdiction to
entertain the present petitions and if the petitioners have a lis,
whether the court can grant the relief. It was argued that the
Union of India may be bound by the directives of the Delhi High
Court; however, though they are directly affected, the
petitioners herein are not parties before the Delhi High Court. It
was submitted that the orders passed by the Delhi High Court
being without jurisdiction are non-est and not binding upon the
petitioners though binding upon the Government. According to
the learned counsel the orders passed by the Delhi High Court
SPECIAL CIVIL APPLICATION/18842/2011 08/11/2012 04:57:23 PM
SCA/18842/2011 21/34 ORDER
have put an embargo on the petitioners approaching the
jurisdictional High Court. Reliance was placed upon the
decision of the Supreme Court in the case of Kiran Singh and
others v. Chaman Paswan, AIR 1954 SC 340, for the
proposition that it is a fundamental principle well established
that a decree passed by a court without jurisdiction is a nullity,
and that its invalidity could be set up whenever and wherever
it is sought to be enforced or relied upon, even at the stage of
execution and even in collateral proceedings. A defect of
jurisdiction, whether it is pecuniary or territorial, or whether it
is in respect of the subject-matter of the action, strikes at the
very authority of the court to pass any decree, and such a
defect cannot be cured even by consent of parties. It was
submitted that under the circumstances, the petitioners can
plead that the orders of the Delhi High Court are nullity in
collateral proceedings. Reliance was placed upon the decision
of the Supreme Court in the case of Chief Engineer, Hydel
Project v. Ravinder Nath, AIR 2008 SC 1315, for the
proposition that neither consent nor waiver nor acquiescence
can confer jurisdiction upon a court, otherwise incompetent to
try the suit. It is well settled and needs no authority that
“where a court takes upon itself to exercise a jurisdiction it
does not possess, its decision amounts to nothing”. A decree
passed by a court having no jurisdiction is non-est and its
invalidity can be set up whenever it is sought to be enforced as
a foundation for a right, even at the stage of execution or in
collateral proceedings. A decree passed by a court without
jurisdiction is a coram non judice. Adverting to the facts of the
present case, it was submitted that the jurisdiction to decide
the controversy vests with this court and as such, the
petitioners cannot be forced to approach the Delhi High Court.
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SCA/18842/2011 22/34 ORDER
It was submitted that all the orders of the Delhi High Court
cannot deprive the petitioners of their rights as they have not
been passed after hearing them. It was submitted that the
petitioners are claiming rights under section 34 of the Act,
which contemplates the Kandla Port Trust taking a decision on
the question of renewal of lease. The Kandla Port Trust having
taken a decision to renew the same, the Union of India has no
power to reduce the period. It was submitted that the
petitioners are not disputing that the lands leased out to the
petitioners are not natural resources. However, the petitioners
have applied to the Kandla Port Trust for renewal of leases and
that the Kandla Port Trust has passed resolution renewing the
same and that a third party, namely, Union of India cannot
over ride the jurisdiction of the Kandla Port Trust. It was,
accordingly, urged that the applications for renewal have to be
considered only by the Kandla Port Trust and none other and at
this stage, the petitioners require protection from proceedings
taken under the Public Premises (Eviction of Unauthorized
Occupants) Act as they have a valid and sustainable right, as
pleaded by them.
25.The facts as appearing in the petitions are that initially, leases
have been either granted to the petitioners or to their
predecessors in title from whom the leases have been
transferred in their favour with the approval of the competent
authority. The initial leases granted in favour of the petitioners
have expired in the years 2003 and 2004. The petitioners have
exercised their right under clause (9) of the indenture of lease
seeking renewal of the respective leases for a period of thirty
years. The Kandla Port Trust has passed separate resolutions in
case of individual petitioners and decided to renew the leases
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SCA/18842/2011 23/34 ORDER
for thirty years or twenty years, as the case may be, and have
forwarded proposals for the approval of the Central
Government. In the meanwhile, the above referred writ petition
has been filed by way of public interest litigation before the
Delhi High Court wherein the said High Court has passed
various orders from time to time. A perusal of the orders
passed by the Delhi High Court indicates that on 9.9.2009, the
learned Assistant Solicitor General had been directed not to
execute/renew any lease except in accordance with the
guidelines issued by the Ministry of Shipping in 2004. The order
dated 11.11.2009 records that an affidavit in-reply has been
filed by the Kandla Port Trust stating that it has set up a portbased
Special Economic Zone (SEZ) at Kandla with an area of
6000 hectares against which formal approval from the Ministry
of Commerce and Industry has been received in May 2007 for
an area of 5000 hectares. It is further stated in the affidavit
that the Kandla Port Trust has also informed the Central
Government of their intention of taking back possession of salt
lands falling under the area of the proposed SEZ. The Kandla
Port Trust has requested the Ministry not to renew the leases of
the salt lands. However, no decision appears to have been
taken by the Central Government in respect of the above
request made by the Kandla Port Trust. Vide order dated
15.12.2010, the Delhi High Court has recorded that,
“Though many a issues have been raised today by the
learned counsel for the parties yet, at present, we are only
inclined to address to one issue whether there should be
renewal of lease beyond March, 2011.
There has to be a long debate on this issue and on the
points which have been canvassed by Mr. Prashant Bhushan
with regard to non-initiation of prosecution against the
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SCA/18842/2011 24/34 ORDER
officers concerned and the action required to be taken
against the Joint Secretary, Ministry of Shipping. In
praesenti, we only record that Mr. Chandiok has assured this
Court that before the next date of hearing, no further
renewal of lease shall take place without leave of this
Court.”
26.Vide order dated 23.2.2011, the court directed that interim
order passed on earlier occasion shall remain in force until
further orders. On 4.4.2011, the court passed an order, inter
alia, in the following terms:
“[3] The next issue that emerges for consideration
pertains to steps required to be taken in respect of
grant/renewal of the lease hold rights of the salt land. Mr.
A.S. Chandhiok submitted that 6500 acres of land has
been demarcated by the Kandla Port Trust to be part of
the Special Economic Zone. It is stated that proceedings
for eviction have been initiated against persons who are
in unauthorized occupation of the said area. The same
shall be finalized within a period of three months from
today.
[4] We have been apprised that tenders were called for
in respect of 10 plots to arrive at a set price. The plots
were of 50 acres and 100 acres. The highest bid
obtained in the auction for a 50 acres plot is
approximately Rs.2.52 lacs per acre for a period of thirty
years but the total payment has to be affront. As far as
100 acres plots are concerned, the highest bid is
approximately Rs.2.75 lacs for each acre for thirty years.
Mr. Chandhiok has submitted that this is the price which
has been obtained in the tenders and there might be
negotiations with the previous lease holders.
[5] In order to ensure that best offers are received, we
feel that more plots should be put to tender-cum-auction
bidding after wide publicity and accordingly, it is directed
that 10 more plots admeasuring 100 acres and 5 more
plots admeasuring 50 acres be put to competitive bidding
through fresh tender-cum-auction. Wide publicity shall be
given in national newspapers as well as taking recourse
to e-tendering process within two months hence.”
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SCA/18842/2011 25/34 ORDER
27.On 3.6.2011, the matter was adjourned to 24.8.2011 for the
learned Assistant Solicitor General to state what steps have
been taken to comply with the order dated 4.4.2011 and an
affidavit of the Chairman of the Kandla Port Trust was also
directed to be filed. Vide order dated 12.10.2011, the Delhi
High Court observed that it expects that all proceedings under
section 9 of the Public Premises (Eviction of Unauthorized
Occupants) Act would be concluded within three months from
the said date.
28.Thus, it appears that pursuant to the above referred writ
petition, which has been entertained by the Delhi High Court,
the said High Court is monitoring the matter and has passed
interim orders from time to time. It is not in dispute that the
above referred writ petition has been filed in respect of the
lands held on lease by the petitioners and that various orders
have been passed by the Delhi High Court from time to time in
compliance with which, the Central Government has issued
various directions to the respondent No.2 – Kandla Port Trust.
29.Adverting to the facts of the present case, various indentures
of lease have been executed between the respective
petitioners on the one hand and the Kandla Port Trust on the
other. In case of four of the petitioners, lease deeds contain
clause (9). Insofar as the other petitioners are concerned, they
have placed reliance upon the Land Policy framed by the
Central Government in respect of the lease of lands by the
Kandla Port Trust. Clause (9) of the said lease deed reads as
follows :
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SCA/18842/2011 26/34 ORDER
“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 as may by mutual
arrangements be decided to commence from the date of
expiry thereof on such conditions as the lessor may in his
absolute direction then determine.”
Thus, under clause (9) of the lease deed, upon the expiration of
the lease, a new lease can be granted by the Kandla Port Trust
at the option of the lessee of the demised premises by way of
renewal for a further period as may by mutual arrangement be
decided.
Insofar as the other petitioners are concerned, the indenture of
lease does not contain any clause for renewal of the lease.
However, the said petitioners have placed reliance upon clause
6.2.2.2 of the Land Policy which inter alia provides for renewal
of existing leases and have contended that for the purpose of
granting fresh lease not exceeding a period of thirty years, the
Kandla Port Trust is not required to obtain approval of the
Central Government.
30.Thus, the basis of the claim of the petitioners is section 34 of
the Act which makes provision for “Mode of executing contracts
on behalf of Board” and reads thus:
34. Mode of executing contracts on behalf of Board.—
(1) Every contract shall, on behalf of a Board, be made by
the Chairman 1[or by any such officer of the Board not below
the rank of the Head of a department as the Chairman
may, by general or special order, authorise in this behalf]
and shall be sealed with the common seal of the Board:
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SCA/18842/2011 27/34 ORDER
Provided that no contract whereof the value or amount
exceeds such value or amount as the Central Government
may from time to time fix in this behalf shall be made unless
it has been previously approved by the Board:
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 in this in this behalf, shall be made unless it has been
previously approved by the Central Government.
(2) Subject to the provisions of sub-section (1), the form and
manner in which any contract shall be made under this Act
shall be such as may be prescribed by regulations made in
this behalf.
(3) No contract which is not made in accordance with the
provisions of this Act and the regulations made thereunder
shall be binding on the Board.
The second proviso to section 34 of the Act which is relevant
for the present purpose mandates 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, shall be
made unless it has been previously approved by the Central
Government.
31.The crux of the matter, therefore, depends upon interpretation
of the second proviso to section 34 of the Act, as to whether
the duration of thirty years mentioned therein would include
the original lease or would apply to each individual lease, viz.,
original lease as well as renewed lease.
32.In the opinion of this court, on a meaningful reading of section
34 of the Act, prima facie, it appears that the same would
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SCA/18842/2011 28/34 ORDER
mean the total period of lease granted in favour of each lessee
in respect of a particular plot of land and would include the
period of the original lease. Else, as rightly contended by Mr.
Harin Raval, the Kandla Port Trust could circumvent the
provisions of section 34 of the Act by granting successive
leases, each for a period not exceeding thirty years.
33.From the facts as emerging from the record of the case, it is
apparent that the lease period in case of each of the
petitioners has expired a long time back in the years 2003-
2004. The said leases have been extended upto 31.3.2011 by
the orders dated 13.7.2010 and 27.7.2010 respectively passed
by the respondent No.1. Thus, as on date, there is no
subsisting lease between the petitioners and the Kandla Port
Trust.
34.On behalf of the petitioners, strong reliance has been placed
on the separate resolutions passed by the Kandla Port Trust in
the year 2003 and 2004 in case of each of the petitioners,
deciding to renew the leases in favour of the petitioners for a
period of thirty years/twenty years, as the case may be. By
these petitions, the petitioners seek a direction to the
respondent No.1 to grant approval to the resolutions passed by
the Kandla Port Trust to renew the leases in favour of the
petitioners for a further period of thirty/twenty years. The
aforesaid claim is primarily based on the argument that in view
of the provisions of section 34 of the Act, the Kandla Port Trust
is not required to obtain the approval of the Central
Government while executing the lease for a period not
exceeding thirty years, inasmuch as, each lease is a fresh
lease, accordingly while computing the period of thirty years as
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SCA/18842/2011 29/34 ORDER
contemplated under section 34, the period of the original lease
is not required to be included. Considering the above view
taken by this court on an interpretation of section 34 of the
Act, the said contention as a necessary corollary would stand
negatived. Moreover, as is apparent from the averments made
in the petitions, the resolutions passed by the Kandla Port Trust
are in the nature of notings on a file. Pursuant to the said
resolutions, it does not appear as if the decision of the Kandla
Port Trust has been communicated to the petitioners, nor have
the petitioners been assured as regards renewal of their leases
as sought for by them. It is well settled that notings recorded in
official files merely represent expression of opinion by the
particular individual/individuals. Such notings even if recorded
by the competent authority on merits of matter under
consideration, cannot be termed as a decision unless acted
upon by issuing an order pursuant thereto. The Kandla Port
Trust appears to have construed the provisions of section 34 of
the Act to mean that it is not authorized to renew the lease in
favour of the lessee beyond a period of thirty years inclusive of
the period of the original lease, and has, accordingly, sought
the approval of the Central Government for further renewal of
the leases. It also appears to be the case of the Kandla Port
Trust that it requires some of the lands for its own purpose and
has, accordingly, requested the Central Government not to
extend the leases in such cases.
35.Section 34 of the Act provides for the manner in which every
contract made on behalf of the Board is required to be
executed. In the facts of the present case, it is apparent that
there is no subsisting contract between the Kandla Port Trust
and the petitioners renewing the leases in favour of the
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SCA/18842/2011 30/34 ORDER
petitioners. Renewal of the leases in favour of the petitioners
has been made by the Central Government under orders dated
13.7.2010 and 27.7.2010, whereby the leases have been
extended till 31.3.2011. In the circumstances, as noticed
earlier with effect from 31.3.2011, there is no subsisting lease
in favour of the petitioners in terms of section 34 of the Act.
36.A perusal of the order dated 13.7.2010 made in the case of the
petitioner in Special Civil Application No.18843 of 2011,
extending the lease for a period till 31.3.2011 shows that in
respect of the proposal for renewal of the said lease, the
Kandla Port Trust had filed a reply stating that they have
formed a business development plan for Kandla Port Trust as
per which the area currently held by M/s Friends Salt Works &
Allied Industries (M/s FSWAI) is shown to be area reserved for
commercial activity. Therefore, the lease should not be
renewed in favour of M/s FSWAI. It is further recorded that the
Kandla Port Trust is of the view that land, if auctioned, will fetch
hefty income and will be helpful for overall development of
Kandla Port Trust and also encourage port related activities of
SEZ. Kandla Port Trust further reported that as per CWPRS
report, the area for salt production near Nankil creek will add to
the siltation problem in the Kandla creek, it will increase
dredging cost, and therefore, no further allotment has been
made in its report.
37.Thus, it appears that the Central Government, in the light of
the fact that the Kandla Port Trust requires some of the lands
for its own purposes as well as for the reasons aforesaid, and
considering the orders passed by the Delhi High Court from
time to time, has taken a decision not to renew the leases in
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SCA/18842/2011 31/34 ORDER
favour of the petitioners. Insofar as the order dated 13.7.2011
is concerned, prima facie, the said petitioner has no reason to
be aggrieved by the same, as the said order has been passed
pursuant to proceedings taken in compliance with the order
passed by this High Court in Special Civil Application No.18843
of 2011. Moreover, the said order does not contain any
observations or findings adverse to the petitioners. The same
merely records submissions of the petitioners and the Kandla
Port Trust and extends the lease since the Kandla Port Trust
was yet to report sufficient progress in furtherance of their
business development plan where the land held by the said
petitioner is shown to be reserved for commercial activities. As
regards the order dated 27.7.2011 passed in case of the other
petitioners, the same does not form part of the record.
However, it appears that vide the said order all that is done is
that the leases granted in favour of the said petitioners have
been extended upto 31.3.2011.
38.Under section 111 of the Act, the Central Government is
empowered to issue directions to the Board in the discharge of
its functions under the Act and the Board is bound by such
directions on question of policy as the Central Government
may give in writing to it from time to time. In exercise of the
said powers, the Central Government has framed the Policy for
Major Ports, 2001, clause 6.2.2.2 of which reads as under:
“6.2.2.2 – Renewal of Existing Leases :
[a] The port should first verify if land is required for its
own use. If it is so required, the Port shall take
possession of the land on expiry of the lease.
[b] If the land is not required by the port for its own
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SCA/18842/2011 32/34 ORDER
use, the port should then check whether land use is
consistent with the Land Use Plan. If it is so, and if
renewal is provided for in the existing lease agreement, it
can be renewed for a total period not exceeding thirty
years including the original lease period. The lease
rent/upfront premium should not be less than prevailing
SoR or on market value, whichever is higher. No
compensation will be payable by the port in the event of
refusal to renew the lease.
[c] If the option for renewal is not provided for in the
existing lease agreement, the port at its discretion, may
decide to grant a fresh lease in favour of the existing
lease at the terms to be approved by the Board, without
public auction/tender. The lease rent/upfront premium
should not be lower than the SoR duly updated or the
market value as the case may be.
[d] Extension/renewal of any lease for the original
lessee beyond thirty years would be made only after the
recommendation of the Port Trust Board, recording
clearly the reasons thereof, and the approval of the
Empowered Committee. Such cases will be finalized by
the Ministry of Shipping.
[e] After the expiry/termination/determination of lease
and despite receiving the notice thereof, or forfeiture of
lease on account of change of user, assignment etc., if
the lessee continues to occupy it unauthorizedly, the
lessee shall be liable to pay compensation for wrongful
use and occupation at three (3) times the lease rent in
accordance with the prevailing SoR till vacant possession
is obtained.
[f] For existing leases, at the time of
expiry/termination/ determination of lease the provisions
related to removal of structures will be applicable. If no
such provisions exist, the lessee shall remove all
structures at his own cost within three (3) months of
expiry/termination/determination failing which these will
vest with the port free from all encumbrances. If the port
so decides for reasons to be recorded, it may also take
over the structures on terms mutually agreed with the
lease holder.”
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SCA/18842/2011 33/34 ORDER
39.Under the above referred policy, it has been specifically
provided that if renewal is provided in the existing lease
agreement, it can be renewed for a total period not exceeding
thirty years, including the original lease period. Clause (d)
thereof provides that such cases shall be finalized by the
Ministry of Shipping. Thus, prima facie, it cannot be said that
the policy is not in consonance with the provisions of section
34 of the Act. In the opinion of this court, clause (9) of the
lease deed has to be read in consonance with section 34 of the
Act whereby, the lease can be renewed at the option of the
lessee for a further period as may by mutual agreement be
decided, and the Kandla Port Trust is empowered to renew the
lease for a period not exceeding thirty years including the
period of the original lease. However, if the lease period
exceeds thirty years, the same would be subject to the
approval of the Central Government.
40.Considering the fact that the petitions involve the
interpretation of provisions of section 34 of the Act as well as
the validity of the Land Policy framed by the Central
Government, the court is of the view that the matters require
consideration. Hence, Issue Rule in each of the petitions.
However, in the light of the aforesaid discussion, the court is
not inclined to grant interim relief as prayed for in the petition.
Nonetheless, considering the fact that the decision taken by
the Central Government not to renew the leases in favour of
the petitioners appears to be primarily based upon the
proceedings filed before the Delhi High Court by way of Public
Interest Litigation (WP) No.11550 of 2009 wherein various
orders have been passed by the Delhi High Court from time to
time, in which proceedings the petitioners though directly
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SCA/18842/2011 34/34 ORDER
affected, have not been impleaded as respondents, it would be
in the interest of justice if the petitioners are granted some
protection for the purpose of approaching the appropriate
forum.
41.While declining to grant interim relief as prayed for by the
petitioners, in the interest of justice, the respondents are
directed to maintain status quo in respect of the lands
possessed by the petitioners in each of these cases for a period
of four weeks from today to enable the petitioners to approach
the appropriate forum.
42.It is clarified that the observations made hereinabove are
tentative in nature and that the same shall not act to the
prejudice of the petitioners in any proceeding before any
forum.
[HARSHA DEVANI, J.]
parmar*
SPECIAL CIVIL APPLICATION/18842/2011 08/11/2012 04:57:23 PM
Anirudh
(Expert) 03 June 2013
That is good.
This is more than a year old case/decision.
Have you asked the question to your lawyer
before posting the query here in the LCI?
What was his reply?
Anirudh
(Expert) 05 June 2013
First provide the answer to my specific query.
