1) Heard Mr. Mihir Thakore, learned senior advocate with Ms. V.D. Nanavati learned advocate for the petitioners and Mr. Dhaval D. Vyas learned advocate for the respondents at length.
2) This petition challenges the show-cause notice dated 26th August 2011 issued by the respondent No.3 calling upon the petitioner to show cause on the aspects mentioned therein, failing which the respondent No.1 would initiate required actions including action for resumption of the subject land; and further and seeks a direction restraining the respondents from resumption of the plot in question from the petitioners.
3) The main grievance ventilated in the present petition is that pursuant to the order dated 07.09.2010 passed by this court in Special Civil Application No.9343 of 2008, the respondent authority, viz., the respondent No.2 therein, that is, the Chairman of the Kandla Port Trust was required to decide the renewal of lease application afresh, without being influenced by the earlier order of non-renewal of lease, within a period of two weeks from the date of receipt thereof, that is, on or before 24.9.2010. That pursuant to the said order, the respondent had by a notice dated 13th September 2010, called upon the petitioner to submit its representation along with the documents, if any, on which it wants to rely for consideration of the representation to the competent authority, that is, the Chairman, Kandla Port Trust. Pursuant to the said notice, the petitioner has submitted its representation dated 17th September 2010. It appears that after the representation was submitted, certain clarifications were sought for from the petitioner, which came to be duly replied by the petitioner. However, subsequently, by the impugned show-cause notice, the petitioner has been called upon to show-cause in respect of the aspects stated therein.
4) It is a case of the petitioners that discriminatory treatment has been meted out to the petitioners inasmuch as no action is sought to be taken against similarly situated allotees and the petitioner alone is sought to be singled out for taking such action.
5) Mr.
Dhaval D. Vyas, learned advocate for the respondent No.3 submitted that it is pursuant to the direction issued by this court in the writ petition filed by the petitioners that the Chairman, Kandla Port Trust is required to decide the issue of renewal of license of the petitioners. The attention of the court was drawn to the further affidavit filed by the respondent No.1 in Civil Application No.11473 of 2011, wherein it has been averred as follows:
"3.
I respectfully submit that the Board of Trustees of the Kandla in meetings dated 28.9.2011 & 12.10.2011, had considered the suggestion to in turn recommend respective cases for long term lease including allotment through public auction. Ultimately, after deliberation, it was decided by the Board to refer the matter to the land Allotment Committee, constituted under the statutory regulations, for detailed examination and in turn recommendation to the Board.
4. The Committee convened the meeting for such consideration and recommendation, wherein it is observed that the case of the petitioner cannot/would not be considered along with the case of other live and license holders/allotee's of the Trust, on the issue, particularly, for adjudication on its status to be pending.
5. However, it is decided by the Committee that in view of the instructions conveyed by the Ministry of Shipping to keep granting lands on lease by the Board in abeyance and likelihood of modification in the prevailing land policy guideline and therefore, it was observed that it would not be in a position to make recommendation to the Board, on the issue, and the item at agenda was deferred.
6. In view of such intervening facts and the issues attached therewith, the Chairman, KPT would not be in a position to decide on such issue and the same, if at all, would have to be decided by the appropriate authority as and when (if) required."
6) It was submitted that thus, it is the Land Allotment Committee constituted by the Board, which would examine the cases for long term and make its recommendations to the Board, which would be the competent authority to decide on the question of renewal of lease after considering the recommendation of the Land Allotment Committee. It was submitted that, however, in view of the order passed by this Court in Special Civil Application No.9343 of 2008, in case of the petitioner company, it is the Chairman, who would be deciding renewal of lease application. It was submitted that it is, therefore, that the petitioner is treated differently, inasmuch as in other cases it would be the Board who would be deciding on the question of renewal of leases after considering the recommendation of the Land Allotment Committee.
7) From the facts noted hereinabove, it is apparent that a piquant situation has arisen whereby though the competent authority for taking a decision on the renewal application of the petitioners is the Board on the recommendation of the Land Allotment Committee, by virtue of the order dated 7.9.2010 passed by this court in Special Civil Application No.9343 of 2008, the Chairman, Kandla Port Trust has been directed to decide the renewal of lease application made by the petitioner company. In the opinion of this court the situation can be taken care of by directing that instead of the Chairman, Kandla Port Trust deciding the application made by the petitioner company for renewal of its lease as directed vide order dated 7.9.2010 in Special Civil Application No.9343 of 2008, the Board on the recommendation of the Land Allotment Committee, would also decide the application for renewal of lease made by the petitioner company along with all other similarly situated persons, by treating the petitioners on a par with all other similarly situated persons. In case, any notice is required to be issued to the petitioners, such notice shall be issued to all the other similarly situated persons and the petitioners shall not be meted out any discriminatory treatment. The petitioners as well as the respondents have no objection to the aforesaid course of action being adopted.
8) Mr.
Dhaval Vyas, learned advocate for the respondent No.3, under the instructions from Mr. Suresh Balan, Deputy Secretary, (Estate), Kandla Port Trust, has further stated that in the light of the aforesaid direction, the show-cause notice dated 26th August 2011 issued by the Estate Officer on behalf of the Chairman, Kandla Port Trust would no longer survive. He has further stated that the Land Allotment Committee is inquiring into breaches in respect of allotment made in case of all 42 allotees.
9) In the light of the aforesaid discussion, it is directed that instead of the Chairman, Kandla Port Trust deciding the application made by the petitioner company for renewal of its lease as directed vide order dated 7.9.2010 in Special Civil Application No.9343 of 2008, the Board on the recommendation of the Land Allotment Committee, would also decide the application for renewal of lease made by the petitioner company along with all other similarly situated persons, by treating the petitioners on a par with all other similarly situated persons. In case, any notice is required to be issued to the petitioners, such notice shall be issued to all the other similarly situated persons and the petitioners shall not be meted out any discriminatory treatment.
10) The petition, accordingly, stands disposed of in the aforesaid terms.
(HARSHA DEVANI, J.) Vahid Top