IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JULY, 2019 BEFORE BETWEEN:
THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.44244/2014(GM-RES) CAUVERY COFFEE TRADERS A REGISTERED PARTNERSHIP FIRM HAVING ITS ADDRESS AT I FLOOR PRAGATHI PLAZA, CHILIMBI, MANGALOORU-575003.
REPRESENTED BY ITS PARTNER PURUSHOTHAM PAI.
... PETITIONER (BY SRI M. VINAYA KEERTHY, ADVOCATE ) AND:
NEW MANGALORE PORT TRUST, A GOVT. OF INDIA UNDERTAKING HAVING ADDRESS AT PANAMBUR MANGALOORU-575010.
REPRESENTED BY ITS ESTATE MANAGER.
(BY SRI SUBRAMANYA R., ADVOCATE) … ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED LETTER DATED 21.5.2014, VIDE ANNEXURE-J, ISSUED BY THE RESPONDENT.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner- partnership firm has filed the present writ petition for a writ of certiorari to quash the impugned letter dated 21.5.2014 bearing No.3/44/2014/EBL.1(IOF), Annexure-J issued by the respondent and a writ of mandamus directing the respondent to consider its representations dated 5.7.2013 and 20.5.2014, Annexures-G and H as well as to refund the security deposit of Rs.50,00,000/- along with interest @ 18% per annum from 2010 till the date of actual payment.
2. It is the case of the petitioner-firm that it is engaged in the business of export of minerals and in connection with its business, it approached the respondent for allotment of a plot inside their port yard for the purpose of storage of their minerals before export of the same from Mangalooru Port. The respondent after verification of the records submitted by it, considered its application for allotment of a plot and allotted an unpaved area plot totally measuring 2000 sq.mts. inside the wharf for stacking of iron ore fines. Subsequent to allotment of the plot, it had complied with all the conditions stipulated in the allotment including remittance of security deposit of Rs.50 lakhs. Considering exports being done by it, the respondent allotted additional area of 3000 sq. mts., and in all total area measuring 5000 sq. mts.
3. It is further case of the petitioner that in the year 2010, the State Government imposed ban on export of iron ore from Karnataka and due to this reason, it could only clear the stock available in its plot in the respondent’s port and also could not secure any material for the purpose of export. Therefore, it submitted a letter to the respondent intimating the fact that it had cleared the entire quantity of iron from its plot and requested the respondent to take back the plot and refund the security deposit of Rs.50 lakhs immediately. After surrender of the plot, it repeatedly requested the respondent to refund the security deposit in response to which the respondent issued a letter stating that some more materials were available in the yard and hence, its submission of surrendering the plot in vacant position was not accepted, but in view of the reason that the ground rent for the plot was not paid, the respondent cancelled the allotment of the plot with immediate effect. In turn, the petitioner wrote a letter stating that it had handed over the vacant land on 7.5.2010 after shipping the entire quantity of iron ore fines, which was available in its plot. It was also further stated that the entire plot was cleared from all the materials and no mineral was available and hence, requested the respondent to refund the security deposit of Rs.50 lakhs. In response, the respondent-authorities communicated the petitioner that it is due for a sum of Rs.1,30,29,297/- and after adjusting the security deposit available, the outstanding amount due on the part of the petitioner to the respondent was Rs.79,67,668/-. Hence, the present writ petition is filed by the petitioner.
4. The respondent has filed its statement of objections denying the averments made in the writ petition and sought to justify the impugned action. It has further contended that the petitioner claimed to have made its last shipment on 13.5.2010 and the petitioner by the letter dated 17.9.2010 stated that it wished to surrender the land to it. On receipt of the said communication, it found that still Iron Ore Stock was available in the plot allotted to the petitioner. Accordingly, it has specifically communicated to the petitioner by the letter dated 29.9.2010 that its claim that it had surrendered the land/plot cannot be accepted or considered till the plot is handed over to it in vacant position. It further directed the petitioner to pay the penal licence fee till the plot is surrendered in vacant position. Subsequently, the allotment came to be cancelled on 28.1.2011 for non performance of terms of allotment of land. It further contended that the petitioner had made its last shipment on 13.5.2010, but nonetheless, it continued to occupy the plot and in possession of the land allotted. As per the terms of the allotment, the petitioner should have surrendered the land in vacant position. However, some materials were left in the plot/land allotted. Though the fact that the materials were available was informed through the letter dated 29.9.2010 as the petitioner was in continuous unauthorised possession even after cancellation of plot on 28.1.2011, the demand raised by the petitioner is not fully justified since it had vacated the land only on 18.4.2012. Therefore, the contention that the petitioner is not liable for payment of land rent due upto 18.4.2012 is unacceptable in the light of the terms of the allotment of land. Therefore, sought to dismiss the writ petition.
5. I have heard the learned Counsel for the parties to the lis.
6. Sri M. Vinayakeerthy, learned Counsel for the petitioner reiterating the grounds urged in the writ petition contended that the impugned letter dated 21.5.2014, Annexure-J issued by the respondent demanding the petitioner to pay an amount of Rs.79,67,668/- is erroneous and cannot be sustained. He would further contend that inspite of representations made by the petitioner as per Annexures-G and H for refund of the entire security deposit, the authorities have wrongly deducted the amount even though the petitioner has surrendered the plot as long back as on 7.5.2010. Therefore, the impugned order is not sustainable. He would further contend that the respondent/authorities by a resolution dated 21st October, 2013 has taken a decision that the Trustees representing Users were of the view that it was the carpet cargo that was lying in the plot during the Joint Inspection and carpet cargo cannot be considered as cargo lying in the plot, as it cannot be exported. The Trustees desired that the information relating to the cargo brought for shipment, cargo shipped by the party to be furnished, so as to decide whether the cargo left over in the plot is carpet cargo or not and the Agenda was deferred for the next meeting. He further contended that even convening the said meeting and without taking any decision on the letters of the petitioners, Annexures-G and H, Annexure-J has been passed which is not sustainable. Therefore, sought to allow the writ petition 7. Per contra Sri Subramanya R., learned Counsel for the respondent reiterating the grounds urged in the statement of objections contended that the petitioner vacated the plot on 18.4.2012 when the joint inspection took place along with officials of the respondents and petitioner, which clearly states that the petitioner had not cleared the plot on 13.5.2010. Hence, the respondent has adjusted the amount of security deposit against the dues upto the date of vacation i.e., on 18.4.2012. The same was intimated to the petitioner through the letter dated 21.5.2014 and the petitioner further requested the respondent to pay the balance amount of Rs.79,67,668/- since it had violated the terms and conditions of allotment and continuously occupied the land till 18.4.2012. He would further contend that even after cancellation of land on 28.1.2011, the authorities were justified in passing the impugned order. Therefore, sought to dismiss the writ petition.
8. Having heard the learned Counsel for the parties, it is an undisputed fact that on the date of application filed by the petitioner, the respondent by the letter dated 16/17.11.2004 allotted 2000 sq.m. of unpaved area inside the security compound wall for a period of one month from the date of issue of allotment order. On further request made by the petitioner, respondent allotted additional area of 3000 sq.m., and in all totally measuring 5000 sq.m. According to the petitioner, he had vacated the plot on the ground that the State Government has imposed ban on export of iron ore from Karnataka in the year 2010. Therefore the petitioner made representation on 7.5.2010 requesting the respondent to refund the deposit/advance amount of Rs.50 lakhs. It is also not in dispute that subsequent to the representation made by the petitioner, the Minutes of 6th Ordinary Meeting of the Board of Trustees for the year 2013-14 was held on 21st October, 2013 at 11.00 a.m. consisting of 12 Trustees + 2 Trustees. In the said meeting, Resolution No.115/2013- 14 reads as follows:
“Reso.No.115/2013-14: Read the Agenda Item No.21 regarding Waver of Penal Licence fee in respect of M/s Cauvery Coffee Traders, Mangalore.
While on the subject, Traffic Manager I/c stated that M/s Cauvery Coffee Traders, Mangalore were allotted with 5,000 sq. mtrs. of unpaved area inside the wharf and the party has deposited Rs. 50 lakhs as caution money deposit. The party has paid the ground rent upto 31.8.2010 and their last shipment was on 13.5.2010. They have not brought any IOF cargo after 13.5.2010. The party vide their letter dated 7.5.2010 had requested for refund of the Caution Deposit money, as they do not have any stock of iron ore at their allotted plot. The site when inspected by the Estate Office along with the representatives of M/s Cauvery Coffee Traders, some left over cargo was found and the party was asked to hand over the plot in a vacant condition after clearing the cargo. Subsequently on 18.4.2012 the plot was again inspected by the Estate Officer along with the representative of the firm and found that the plot was in vacant condition. In case the vacation of the plot is considered as 18.4.2012, then licence fee/penal licence fee is to be collected from the Party, as brought out in detail in the Agenda Note.
The Board’s view was sought with regard to recognition of the date for calculation of the penal licence fee in respect of M/s Cauvery Coffee Traders. It was also indicated to the Board that the Party is requesting for refund of Rs.10,19.081/- considering the date of vacation of the plot as 13.05.2010 i.e. the date of completion of the last shipment.
The issue was deliberated in detail. Shri T.K,. Jajoria, Trustee representing Ministry stated that the surrender of the plot after clearing the stock to be taken as date of surrender. The Trustees representing Users were of the view that it was the carpet cargo that was lying in the plot during the Joint inspection and carpet cargo cannot be considered as cargo lying in the plot, as it cannot be exported. The Trustees desired that the information relating to the cargo brought shipment, cargo shipped by the party to be furnished, so as to decide whether the cargo left over in the plot is carpet cargo or not. In view of the above, the Agenda item is deferred for the next meeting? ”
9. On careful perusal of the resolution, it clearly depicts that the petitioner has paid the ground rent upto 31.8.2010 and the last shipment was on 13.5.2010. The petitioner had not brought any IOF cargo after 13.5.2010. The petitioner by the letter dated 7.5.2010 had requested for refund of the Caution Deposit money as it did not have any stock of iron ore at their allotted plot. The site when inspected by the Estate Officer along with the representatives of M/s Cauvery Coffee Traders, some left over cargo was found and the petitioner was asked to hand over the plot in a vacant condition after clearing the cargo. Subsequently on 18.4.2012, when the plot was again inspected by the Estate Officer along with the representative of the firm, it was found that the plot was in vacant condition. Under those circumstances, the Trustees of the Board was of the view that the carpet cargo that was lying in the plot at the time of joint inspection and the carpet cargo cannot be considered as cargo lying in the plot, as it cannot be exported. The Trustees desired that the information relating to the cargo brought for shipment, cargo shipped by the party has to be furnished, so as to decide whether the cargo left over in the plot is carpet cargo or not. Therefore the Agenda Item was deferred to the next date of hearing. Without conducting any further meeting by the Board, the Assistant Estate Management (Grade-I) of the respondent has proceeded to issue Annexure-J informing the petitioner that on the ground that he vacated the plot only on 18.4.2012 and after adjustment of the amount from the security deposit, it worked out to Rs.1,30,29,297 (Rupees One Crore Thirty Lakhs Twenty Nine Thousand Two Hundred and Ninety Seven Only). Hence, the total dues pending with Port after adjusting the deposit available worked out to Rs.79,67,668/-.
10. In view of the above, there is no reference to the resolution passed by the Board of Trustees and as to whether the carpet cargo was cleared by the petitioner only on 18.4.2012 and whether he was liable to pay the rent or not which have not been decided by the Board of Trustees and as the meeting was deferred to the next date of hearing, what happened before the next date of hearing is not forthcoming. The Trustees representing Users were of the view that it was the carpet cargo that was lying in the plot during the joint inspection and the carpet cargo cannot be considered as cargo lying in the plot, as it cannot be exported. Before a decision is taken, the Assistant Estate Manager has proceeded to pass the impugned order. In the meeting, if the respondent has decided that the petitioner has vacated the plot on 13.5.2010 as per the letter written by the petitioner, it has to be readjusted and if ultimately, the Board of Trustees has come to the conclusion that the petitioner has vacated the plot only on 18.4.2012 and if some left over cargo was found to be lying on the plot, the same has to be readjusted by the respondents. Since the impugned letter, Annexure- J is issued before convening the meeting by the Board of Trustees, it is not sustainable and it is for the Board of Trustees to take a decision as to whether the petitioner is liable to pay the rent for the carpet cargo which cannot be considered as cargo lying in the plot as it cannot be exported. Therefore, till a decision is taken by the Board of Trustees, Annexure-J has to be kept in abeyance.
11. For the reasons stated above, writ petition is disposed off. The respondent shall place the issue involved in the present case including payment made by the petitioner as per Annexures-G and H before the Board of Trustees and it is for the Board of Trustees to take a decision. Till such decision is taken by the Board of Trustees, Annexure-J is kept in abeyance.
12. The respondent is directed to place the matter before the Board of Trustees, who shall take a decision in accordance with law within a period of one month from the date of receipt of a copy of this order. However, all the contentions raised by both parties are left open to be urged at the appropriate point of time.
Ordered accordingly.
Sd/- Judge Nsu/-