1. In present petitions the petitioner has prayed that:-
(A) This Hon'ble Court may kindly be pleased to issue an appropriate writ, order or direction quashing and setting aside the impugned order dated 9.4.2012 notified in Government Gazette part III, Section 4 by notification dated 30.4.2012 being unjust illegal, arbitrary, without jurisdiction and violative of articles 14, 19(1)(g) and 21 of the Constitution of India.
(B) Pending admission, hearing and final disposal of this petition, this Hon'ble Court may kindly be pleased to stay the implementation, execution and operation of the impugned tariff order dated 9.4.2012 notified on 30.4.2012 at Annexure-A and be pleased to restrain respondent No.2 from issuing demand notices to the members of the petitioner on the basis of the tariff order at Annexure-A.
(C)........
(D)........
2. The petitioner has placed under challenge order dated 9.4.2012 passed by respondent No.3 and the subsequent notification dated 4.5.2012 whereby the respondent No.3 has disposed of proposal for tariff revision made by respondent No.2 and directed revision in the tariff i.e. lease rentals for salt land of respondent No.2.
3. At the outset it is necessary to address the objection against maintainability of petitions on the ground of lack of territorial jurisdiction and to also address the issue whether this Court should entertain present petitions in view of certain Public Interest Litigation (PIL for short) pending before Delhi High Court.
4. So as to address said issues it is necessary to take into account some of the facts which are relevant and involved in present petitions.
4.1 It emerges from the record and the submissions by the learned advocates for the contesting parties that the petitioner herein is an Association of manufacturers of salt who were granted lease of lands by Kandla Port Trust (KPT for short) for manufacturing salt. It is claimed that the petitions are preferred by the association viz. Kandla Salt Leaseholder Welfare Association, for and on behalf of its members.
4.2 It is claimed that members of the petitioner association were granted land on lease basis for 30 years by Kandla Port Trust, for manufacturing salt.
4.3 The petitioner has clarified that about 25 members were allotted plots admeasuring 10 Acres and some other members were allotted plots admeasuring 100 Acres or more and certain other members were allotted plots admeasuring more than 500 Acres. At the relevant time rates of lease were fixed by the Central Government. Subsequently in January 1997 the respondent No.3 was constituted with the authority to decide the tariff Scale of Rate (SOR for short) for salt land of respondent No.2 and other major ports.
4.4 Since January 1997 it is the respondent No.3 who determines tariff / SOR or lease rentals for salt lease of respondent No.2.
4.5 It is the case of the petitioner that the authority of fixing and revising tariff / SOR and lease rental has to be undertaken in accordance with the Guidelines for Regulations of Tariff at Major Port 2004.
4.6 As mentioned above, initially the petitioner was granted lease of salt land in question for period of 30 years. Certain other members of the petitioner association applied for allotment of plots subsequently and they were allotted plots later in point of time.
4.7 It appears that in 2011 the respondent No.2 forwarded a proposal to respondent No.3 for revision of SOR / lease rentals. It is the said proposal which came to be decided by respondent No.3 under impugned order dated 9.4.2012.
4.8 At this stage it is relevant to mention that somewhere in 2009 proceedings in nature of Public Interest Litigation raising diverse issues related to lease of salt land granted by respondent No.2 came to be initiated in Delhi High Court.
4.9 In the said Public Interest Litigation proceedings the petitioner claimed, inter alia, that the lease of salt land should not be granted by respondent No.2 except through auction.
4.10 It appears, from the record that the issue related to the rate at which the lease should be granted was also one of the issues agitated in the said petition before Delhi High Court.
4.11 After the receipt of the proposal / request from respondent No.2 for revision of lease rental, the respondent No.3 initiated the proceedings for considering the said proposal.
4.12 The petitioner has claimed that the respondent No.2 Kandla Port Trust had forwarded proposal to revise and fix the lease rental at Rs.13,750/- and the respondent No.3 had issued notice calling for response and explanation from members of the petitioner.
4.13 It appears that the members of petitioner association submitted their objections. Thereafter the respondent No.3 conducted the hearing at the premises of KPT at Kandla and heard the respondent No.2 and the members of the petitioner association.
It also emerges from the record that so as to find out the market value of the plots Delhi High Court had directed respondent No.2 to put up certain plots for auction. Since Delhi High Court was not satisfied with the outcome of the auction, the respondent No.2 was directed to put more / larger plots for auction. Hence second phase of auction was also conducted and lease rental on that basis.
4.14 In the meanwhile the proceedings related to the Public Interest Litigation instituted in the Delhi High Court continued and from time to time diverse orders came to be passed.
4.15 The parties to present petitions have placed some of the orders passed by Delhi High Court on record of present petitions. In the said proceedings the Delhi High Court has directed, inter alia that the allotment should be made only through auction.
4.16 Somewhere in May 2011 joint hearing of the proposal forwarded by respondent No.2 Kandla Port Trust was conducted by respondent No.3 at the premises of the respondent Kandla Port Trust. The hearing was attended by members of the petitioner and the respondent KPT.
4.17 During the pendency of the proceedings, somewhere in August 2011 the respondent No.2 issued notices asking the members of petitioner Association to handover vacant and peaceful possession of the land allotted to them on lease basis.
4.18 Subsequently somewhere in November 2011 the Estate Officer under the Public Premises (Eviction of Unauthorized Occupants) Act 1971 issued notices to the members of the petitioner association to vacate the plots allotted on lease basis.
4.19 Aggrieved by the said notification some of the members of petitioner association and the association as well filed petitions in this Court challenging the demand for possession of the lease land. It appears that the petitions filed by the members of the petitioner association and some of its members came to be admitted under order dated 27.2.2012. However the Court declined to grant any interim relief. In the said order also the Court has taken into account the pendency of the proceedings (Public Interest Litigation) before Delhi High Court.
4.20 In this context the Court has observed, in paragraph No.40 of the said order dated 24.2.2012 that:-
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 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.
It appears from the record the submissions that after considering the rates quoted by the bidders in the fist auction and in the second auction and also after taking into account the other aspects relevant for deciding the proposal by respondent No.2, the respondent No.3 passed order dated 9.4.2012 whereby respondent No.3 has fixed the lease rental at the rate of Rs.23,250/- for salt lease of respondent No.2 with effect from 5.7.2010.
After said order was passed requisite notification in accordance with the provisions of the Act, declaring order passed by respondent No.3 implementing the direction under the said order dated 9.4.2012 came to be issued on 4.5.2012. The said order dated 9.4.2012 and consequential notification dated 4.5.2012 are challenged in present petitions.
4.21 The aforesaid order dated 24.2.2012 was carried in Appeal by way of LPA No.569 of 2012 and allied Appeals. While hearing the said LPA and allied matters the division bench also took into consideration the PIL proceedings before Delhi High Court and orders passed by Delhi High Court in the said proceedings. The division bench has observed, in common CAV judgment dated 16.7.2012 in the said group of LPAs, that:-
2.2 It is clear from the above successive observations and orders of the Delhi High Court in the public interest litigation pending before it that non-renewal of leases and consequent eviction proceedings against the appellants are pursuant to and in consonance with the judicial orders of the Delhi High Court. Not only that, but the Delhi High Court appears to be seized of larger issues related to the administration of KPT and grant of lease of lands under its administration. The attempt of some of the appellants herein to challenge before the Supreme Court the orders dated 11.11.2009, 18.12.2009, 11.3.2010, 20.4.2010, 11.8.2010, 20.10.2010, 15.12.2010, 4.4.2011, 1.6.2011, 24.8.2011, 12.10.2011 and 18.1.2012 of the Delhi High Court has ended in withdrawal on 09.4.2012 of Special Leave to Petition (Civil) Nos.5889-5901 of 2012. Even the application for permission to file transfer petition was rejected, at that stage, by the Apex Court.
4.22 So far as the proceedings pending before Delhi High Court are concerned in the said group of petition the petitioner of Public Interest Litigation has prayed, inter alia that:-
In view of the facts and circumstances stated above, it is most respectfully prayed that this Hon'ble Court in public interest may be pleased to;
a.
issue a writ of Mandamus against Union of India to take back possession of 16000 acres of government land and evict trespassers who are in illegal occupation of the said land at the Kandla port.
b.
issue a writ of Mandamus against Union of India to seek damages which according to its own guidelines are 18% of the market value of the said land for every year of illegal occupation of the said land from the lessees who did not vacate after the termination of their lease agreement.
c.
declare that leases granted arbitrarily on nomination basis on port land henceforth as null and void and direct that land henceforth may be leased out to private sectors and individuals only on the basis of competitive bidding and lease rentals of 6% of the market value of property must be charged.
d.
Order an independent investigation by an SIT into the role of officers of Shipping Ministry and KPT in allowing illegal occupation of government land at the Kandla Port.
e.
issue such other writ, direction or order, which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.
4.23 Upon consideration of the observations in the above mentioned orders dated 27.2.2012 in SCA No.18842 of 2011 and allied matters and the order dated 16.7.2012 in LPA No.569 of 2012 and connected Appeals, it emerges that the issue regarding allotment of land to the members of the petitioner association and connected issues are pending by way of Public Interest Litigation before Delhi High Court.
5. Mr. Pandya, learned advocate for the petitioner has assailed the order on various grounds.
5.1 He submitted that the impugned order is passed in violation of principles of natural justice inasmuch as when the rates fetched in the second auction were placed before respondent No.3, the said respondent did not give any notice and / or opportunity of hearing to the petitioner before taking into consideration the said rates while deciding the proposal by respondent No.2. He further submitted that actually respondent has relied on the said rates and the said rates have been made base for fixing lease rental with reference to the proposal submitted by respondent No.2. Mr. Pandya, learned advocate for the petitioner also submitted that the impugned order is unsustainable because it is beyond the scope of the proposal submitted by respondent No.2. It is claimed that the respondent No.2 had forwarded its proposal to respondent No.3 in February 2011 with the request that the rates structure of lease rental for salt land may be revised to Rs. 13,570.00 per acre / per annum with escalation of 2% per annum for period of 5 years. However, respondent No.3 has traveled beyond the scope of the said proposal and has actually granted higher rate than what was asked by respondent No.2. Learned advocate for the petitioner has assailed the impugned order also on the ground that as against the demand for lease rental rate of Rs. 13,570/-, the respondent No.3 has granted rate of Rs. 23,250/- and therefore the respondent No.3 has travelled beyond demand itself.
5.2 Learned advocate for the petitioner further submitted that the respondent No.3 has not taken into account the criterion which are prescribed under Guidelines of Tariff Fixation and that therefore also the rate fixed by respondent No.3 are unsustainable. Learned advocate for the petitioner further claimed that the respondent No.3 has also not taken into consideration the rates prevailing at other major ports as a result of which wide difference between the rate fixed for the land / plot in question and the plots at other major ports has arisen. According to the petitioner, the said disparity vitiates the rate fixed by respondent No.3. It also reflects that the respondent No. 3 fixed the leased rental without proper and due application of mind to the relevant aspects. It is also claimed that even the procedure prescribed under the Guidelines for Tariff Fixation has not been followed by respondent No.3 while fixing the rate and passing impugned order.
5.3 It is also contended that Section 49 (1) of the Act would be rendered redundant if the auction price is substituted in case of SOR. It is also contended that members of the petitioner association were not put to notice that the rate may be decided on the basis of second auction of land of respondent No.2. Mr. Pandya, learned advocate for the petitioner has also assailed the impugned order on the ground that the respondent No.3 has, without any authority in law and without any justification and by travelling beyond the proposal by the respondent No.2, given retrospective effect to the order and the revised rates. It is contended that respondent No.2 had raised the proposal in February 2011 and respondent No.3 passed order more than one year after the proposal was made (order is passed on 9.4.2012) and that therefore respondent No.3 should not have made the revised rates effective from July 2010 as it amounts to making the rate effective retrospectively.
5.4 The petitions have been resisted by respondent Nos. 2 and 3. The respondent No.1 has also opposed the petitions. While respondent Nos. 2 and 3 have filed reply affidavit and affidavit by respondent No.1 is not filed.
5.5 The respondent No.1 has raised objection against locus standi of the petitioner. Mr. Champaneri, learned Asst. Solicitor General of India submitted that petition by an association is not maintainable. He also submitted that association does not have any fundamental right and association is not lessee who has to pay rental for the land in question and that the petitioner association is not affected in any manner by the impugned order, and that therefore, the petitioner is not affected or aggrieved party and consequently petition by the association is not maintainable.
5.6 Respondent No.3 has opposed the petitions on diverse grounds. Learned Senior Counsel for respondent No.3 has vehemently defended the impugned order and submitted that the order does not suffer from any infirmity or illegality. Learned Senior advocate for respondent No.3 also submitted that concerned persons were heard by respondent No.3 at length and that therefore the allegation about breach of violation of principles of natural justice is incorrect and unjustified. Learned Senior Counsel for respondent No.3 further submitted that the impugned order dated 9.4.2012 has been passed after taking into account all relevant aspects and after diligently following the prescribed procedure including the procedure prescribed by Guidelines for Tariff Fixation as well as the land policy. Learned Senior Counsel for the respondent No.3 raised objection about maintainability of the petitions and he contended that the this Court does not have territorial jurisdiction to entertain petitions against order passed by the respondent No.3 since the sit of respondent No.3 is within the territorial jurisdiction of Bombay High Court.
5.7 Learned Senior advocate for the respondent No.2 has also opposed the petitions. In substance learned Counsel for respondent No.2 adopted the submissions and objection (except the objection on ground of lack of territorial jurisdiction) raised by respondent No.3. He also referred to the orders passed by the Delhi High Court from time to time in the pending PIL Proceedings.
5.8 Learned Senior advocate for respondent No.2 also submitted that since March 31, 2011 members of petitioner are in unauthorized occupation of the plots in question. He submitted that eviction orders have been passed by competent authority and that therefore members of the petitioner association did not have any right to continue to occupy the plots in question, though appeal against order passed by the competent authority is pending.
5.9 He submitted that since members of the petitioner association are unauthorized occupants, now the issue raised by the petitioner with regard to lease rental is only academic. Learned Senior Counsel for respondent No.2 relied on the decision in case of L.H. Mehta and ors vs. Kandla Port Trust and ors (2011 (3) GLR 1841).
It also appears that the issue related to the rate at which the lease should be granted was also one of the issues agitated in the said petition before Delhi High Court. Actually the respectfully No.2 and the respondent No.3 have asserted that the issues raised in present petitions are part of the larger issue pending before Delhi High Court.
6. While considering the group of petition being SCA No.18842 of 2011 and connected matters as well as while deciding LPA No.569 of 2012 and allowed Appeals, the Court has taken into consideration the said PIL pending before Delhi High Court and the orders passed by the Delhi High Court in the said proceedings.
6.1 In view of the said proceedings, the issue about propriety of entertaining these petitions and considering petitioner's request to stay, by way of interim relief, the operation of the impugned order dated 9.4.2012 passed by respondent No.3, arises.
6.2 Actually, the learned Senior Counsel appearing for respondent No.3 also raised, during oral submission, objection against maintainability of the petitions on the ground of territorial jurisdiction and submitted that considering the fact that the sit of respondent No.3 is at Mumbai, this Court does not have territorial jurisdiction to entertain petition.
6.3 The respondent Nos.1, 2 and 4 have not raised any objection against maintainability of petitions on ground of territorial jurisdiction.
6.4 As regards the issue about entertaining the petitions in this Court while the PIL petition is pending in Delhi High Court is concerned, learned advocate for the petitioner would submit that the issue related to tariff and / or lease rental and / or revision in tariff / lease rental is neither the main or connected or ancillary issue in the proceedings before the Hon'ble Delhi High Court.
However, the learned Counsel for respondent No.2 and 3 would contend and assert that the issue of lease rentals is part of the diverse issues raised in PIL pending before Delhi High Court.
6.5 Learned Counsel for the petitioner made reference of the orders passed by the Delhi High Court in the said Public Interest Litigation proceedings and submitted that until now any order concerning tariff / lease rental is not passed by Delhi High Court and any grievance with regard to tariff / lease rental is not raised and any relief in connection with the tariff / lease rental is not prayed for in the said PIL proceedings.
7. So far as the contention raised on the ground of territorial jurisdiction is concerned, learned Counsel for petitioner submitted that substantial cause of action has arisen within the territorial jurisdiction of this Court and the property in question is also situate within territorial jurisdiction of this Court and that therefore the petitions are maintainable in this Court.
7.1 Learned Counsel for the petitioner submitted that even if the issue regarding territorial jurisdiction is to be considered in view of the sit of respondent No.3 then also only a fraction of, or only a small part of, cause of action can be said to have arisen within the territorial jurisdiction of Bombay High Court and therefor the petitions are maintainable before this Court.
8. So far as the objection against maintainability of the petitions on ground of lack of territorial jurisdiction is concerned, the respondent No.3 who has passed impugned order has contended that the petition in this Court is not maintainable because authority who passed order is situate at and has its sit at Mumbai and therefore territorial jurisdiction would lie with Bombay High Court.
8.1 So as to consider said objection, it is relevant to take into account the facts that:-
(a) the subject matter of the dispute i.e. the plots in questions are situate at Kandla within the territorial jurisdiction of this Court
(b) owner of the plots in question i.e. KPT is situate at Kandla i.e. within territorial jurisdiction of this Court
(c) real affected party, being the beneficiary of the order is respondent No.2 and the said respondent No.2 is situate within territorial jurisdiction of this Court
(d) the members of the petitioner association and also the petitioner association as well as the respondent KPT are situate within territorial jurisdiction of this Court
(e) the effect of the order impugned in present petitions has fallen within territorial jurisdiction of this Court
(f) though the sit of the respondent No.2 is at Mumbai, actual hearing of the proposal made by respondent No. 2 and the objection raised against the said proposal by members of the petitioner association, was held by respondent No.3 at premises of respondent No.2 KPT at Kandla i.e. the proceedings were actually held within territorial jurisdiction of this Court
(g) the plots in question are situate within territorial jurisdiction of this Court, the revised lease rental in respect of lands (which are situate within territorial jurisdiction of this Court) is to be paid by the persons who are within the territorial jurisdiction of this Court and they are to be paid to the authority who is within the territorial jurisdiction of this Court, and that therefore, substantial cause of action has arisen within territorial jurisdiction of this Court.
8.2 When the above mentioned aspects are taken into consideration, it follows that even if the objections on the ground of sit of respondent No.3 were to be taken into account then also, only a small part of cause of action can be said to have been arisen within territorial jurisdiction of Bombay High Court whereas substantial part of cause of action has arisen within territorial jurisdiction of this Court.
8.3 Besides this, above mentioned aspects also demonstrate that the aggrieved and affected parties as well as the beneficiary of the order in question are within territorial jurisdiction of this Court and the effect and consequences of the order has fallen within the territorial jurisdiction of this Court.
8.4 Besides this, in view of the facts of present case it is also pertinent that the entire hearing in connection with the proposal submitted by respondent No.2 has, though the sit of respondent No.3 is at Mumbai, been held by respondent No.3, at the premises of respondent No.2 at Kandla i.e. within territorial jurisdiction of this Court.
Moreover the proposal emated from respondent No.2 who is situate within the jurisdiction of this Court and therefore on over all consideration of the above mentioned facts and having regard to the aspects mentioned herein above, the objections raised by the petitioner on ground of territorial jurisdiction is not sustainable.
8.5 Present petitions are preferred under Article 226 of the Constitution of India. Therefore, cause of action is a relevant and important criterion for determining the objection related to territorial jurisdiction of the Court. Article 226 of the Constitution of India postulates that a writ petition can be maintained in the Court within whose territorial jurisdiction even part of cause of action arises.
8.6 Learned Counsel for the petitioner has relied on the decision in case of Kusum Ingots and Allys Ltd vs. Union of India (AIR 2004 SC 2321) to support its submission that the writ petition is maintainable before this Court because cause of action has arisen within the territorial jurisdiction of this Court and merely because sit of the authority who has passed order is within the territorial jurisdiction of Bombay High Court, it will not take away jurisdiction of this Court to entertain the writ petition.
Therefore, having regard to the aspects mentioned in para 8.1 and also the foregoing discussion and reasons, the said contention is not sustainable.
9. Likewise so far as the petitioner's objections against the impugned order on the ground that it has given retrospective effect to the revision of rates is concerned, the said objection is also not sustainable because in its proposal itself the respondent No.2 claimed revision with effect from 5.7.2010.
Besides this, even in regular course and in routine course and in routine manner, the revision in rates had, undisputedly, become due in July 2010 and that therefore respondent No.2 had demanded revision of lease rental with effect from 5.7.2010 in view of the fact that it was around the said period i.e. in June - July 2010 that the tenure of the earlier revision had come to an end.
9.1 Ordinarily when revision in statutory rental are permitted the concerned authority would have jurisdiction to allow such revision either from the date on which the revision became due or from the date on which demand is raised or from the date on which the order is passed. In present case, the respondent No.3 has given effect to the revision from the date when the revision fell due which is also the date requested for by the respondent No.2 and incidentally it is the period around which the revision, in regular course, had become due because the tenure of the previous revision came to an end around that time.
9.2 Under the circumstances when the respondent No.3 has given effect to the revision in lease rental from the date on which revision fell due and the date which was requested for as effective date, it prima facie appears that the authority has not travelled beyond the scope of the demand by giving retrospective effect i.e. for period beyond the period from which demand was made. Thus, prima facie, the said contention is also not sustainable.
10. Having regard to the other contentions raised by the learned Counsel for the petitioner against the impugned order dated 9.4.2012, it prima facie also appears that the petitioner has raised debatable issues which require consideration by the Court.
10.1 However, in view of the facts of the case, the issue which arise is about propriety in maintaining and entertaining these petitions rather than about territorial jurisdiction of this Court more particularly in view of the pendency of PIL proceedings before Delhi High Court wherein various issues related to and connected with the plots in question and issue about allotting the plots on lease basis are under consideration by the Court on larger canvass.
11. On this count, learned advocate for the petitioner has vehemently submitted that the issue raised and involved in the petitions has no connection with the issue raised and involved in Public Interest Litigation pending before Delhi High Court. He submitted that the relief prayed for in the said petition is against the allotment of the plots in favour of the petitioner or other applicants and the issue regarding lease rental of the plots in question is not the issue pending before or under consideration by Delhi High Court. He also vehemently submitted that the said issue / subject has not been even touched or referred to by Delhi High Court in any of the orders which have been passed until now in the said proceedings.
12. Learned Senior Counsel for respondents No.2 and No.3 has relied on the orders passed by Delhi High Court and on the memo of Public Interest Litigation petition pending before the Delhi High Court and particularly he referred to various averments made in the said petition at pages 322 to 332. He also referred to the documents at pages 83, 102, 111 and 272.
In the facts and circumstance of present case it is appropriate and also necessary to ascertain as to whether (a) the issue/s and dispute/s raised in present petitions are, in any manner, connected with or they have bearing on the issues or disputes covered within the purview of the petition pending before Delhi High Court;
(b) whether any order of interim nature / relief would in any manner affect and / or come in conflict with the subject matter of the petition before Delhi High Court and / or with any order/s passed in the petition pending before Delhi High Court and / or order likely or required to be passed in the said proceedings before Delhi High Court (c) whether any order of interim nature in present petitions will have any repercussion on the pending petition before Delhi High Court or its subject matter or the directions regarding lease of salt land of respondent Kandla Port Trust and whether such order of interim nature would create, in any manner, either directly or indirectly, any right or equity or claim by the members of the petitioner association which may be in conflict with or may come in conflict with the proceedings of the petition before Delhi High Court.
13. So as to examine the rival submissions by the petitioner and the respondents as regards petitioner's action of taking out and maintaining present writ petition while proceedings with wider scope are pending before Delhi High Court, it is also relevant to refer to and take into account certain orders passed by Delhi High Court in the said pending Public Interest Litigation petition.
In order dated 20.4.2010 it is, inter alia, observed that:-
Despite our order dated 11th March, 2010 the Ministry of Shipping has skirted the issues identified by us namely the following:
Look into the issue of granting sanction as requested by the CBI.
Respond to the queries raised by the CVC (3) Take effective steps for protecting the interest of the Kandla Port Trust so that land owned by the Kandla Port Trust is not frittered away for an inadequate lease amount and where it has been so frittered away, necessary steps should be taken to now protect and safeguard the interest of the Revenue including the Kandla Port Trust;
In order dated 11.8.2010 it is, inter alia, observed that:-
(Ports / Admn.) by communication dated 13th July, 2010 has directed renewal of the lease and the said communication has been sent to the Chairman, Kandla Port Trust and to the Registrar, High Court of Gujarat, Ahmedabad despite the order passed by this Court on 09th September, 2009, 18th December, 2009 and 11th March, 2010. It is submitted by Mr. Bhushan, if the aforesaid orders are appreciated in proper prospective, there would be shadow of doubt that the respondents could not have renewed the lease and only could put the land to public auction after fixing the reserve price on the basis of valuation report. Mr. Bhushan has invited our attention to the communication made by the Joint Secretary of the Ministry of Shipping whereby he has issue clear cut instructions that in respect of the land which was given on lease to M/s. Friends Salt Works and Allied Industries situated at Kandla steps should be taken for renewal.
That apart, Mr. Prashant Bhushan, learned Counsel for petitioner has also invited out attention to the communication by Mr. R. Srinivasa Naik, Director (Port Operation)...
In order dated 4.4.2011 it is, inter alia, observed that:-
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 sale 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 30 years but the total payment has to be attront. As far as 100 acres plots are concerned, the highest bid is approximately Rs.2.75 lacs for each acre for 30 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.
In order dated 12.10.2011 it is, inter alia, observed that:-
Two issues are to be addressed to in this writ petition. First pertains to the lease of land belonging to Kandla Port Trust.
The petitioner had made the grievance that even when the lease in respect of land belonging to Kandla Port had expired, the lease allowed to continue. This issue has almost been resolved by various orders passed by this Court in this petition from time to time. The position which emerges is that the Kandla Port Trust authorities are not to lease through public auction and the lease are to be granted for production of salt. The terms on which the auction takes place have also been finalized. The persons who will be the successful bidders in the auction would be given lease only for the aforesaid purpose and such a condition, as Mr. Chandhiok, learned ASG, says, has already been included in the E-Tender cum E-Auction for allotment of plots between Village Padana and Village Chirai for production of salt on 30 years lease on as is where is basis and the said would be included in the lease deed as well quoted in terms of orders dated 4th April 2011.
Mr.
Chandhiok, learned ASG, also submitted that the persons whose lease have come to an end and are in illegal occupation, in respect of some to them eviction order have already been passed by the Estate Officer and in some cases proceedings before the Estate Officer are in progress. Mr. Chandhiok, further informs that those person against whom eviction orders have been passed have filed the appeal under Section 9 of the Public Premises (Eviction of Unauthorized Occupant) and the District Judge has passed the orders that these appeals will be decided within 2 months, though, in the meantime status quo orders are passed.
In these circumstances, we expect that all proceedings under Section 9 of the Public Premises (Eviction of Unauthorized Occupants) would be concluded within three months from today.
In order dated 16.5.2012 it is, inter alia, observed that:-
8. We may record that the leases of these applicants have expired. Though these applicants are claiming right of renewal and the petitions in this behalf are pending in the Gujarat High Court, till date there is no determination of these issues in favour of the applicants. It is for this reason that we reiterate that the proceedings before the Estate Officers as well as the District Judges should continue. In fact on 12.10.2011, orders were passed expecting these proceedings would be over within a period of three months.
In order dated 4.7.2012 it is, inter alia, observed that:-
Application No.7777/2012 and connected matters. It becomes clear from the reading of the said order that so far as the courts in Gujarat are concerned, in none of the proceedings any interim orders in favour of the applicants herein have been granted. In fact this very issue of interim relief raised by the applicants in LPA 569 of 2012 and other connected matters is already argued before the Division Bench of the Gujarat High Court and the judgment is reserved.
We are considering the matter in Public Interest Litigation and the applicants have raised their individual grievances which can always be gone into by the Gujarat High Court.
In the facts of the case it is appropriate to also take into account the below mentioned averments made in the PIL pending before Delhi High Court.
3. Petitioner submits that land is a precious input in port operations for increasing traffic both of imports and exports. Utility of these lands has increased progressively as there has been an expansion in sea-borne trade. Considering the importance of port land and in view of provisions contained in Section 34(1) of the Act, specifically in light of the second proviso to that sub-section, to regulate the allotment of port land, Union of India has been issuing guidelines from time to time. Union of India framed a policy in the year 1983 which among other things, envisaged that the Port Trust may lease surplus land to individual firms and companies which were connected with and directly contributed to the working of the port and its operations. It directed that selection of leases should be carefully made and the requirements related to their immediate needs and not for expansion of their own activities. It envisaged that preference be given to public sector undertakings. It also envisaged that suitable form of lease agreements which would fully protect the interests of Port Trusts be drafted and importantly, it also envisaged that valuation of port land should be done on a rantional basis and the rates of rent should be determined in accordance with those values and periodical revision of lease rates with the appreciation of and value must be made. More importantly, the policy envisaged that Central Government to review all cases of land from time to time and ensure that lands are used only for the purpose for which they have been allotted.
5.Approximately 16,112 acres of precious land adjoining Kandla Port was leased out to exporters and salt manufacturing firms by KPT which is a statutory authority under the administrative control of Shipping Ministry as per provisions of the Act. The leases granted by KPT involve 15,112 acres of land and 41 lessees. Nearly 15,862 acres of land are with 16 parties on paper but are effectively in the hands of 5-6 families who have been deriving huge undue pecuniary benefits from the said land.
6.The land has been allowed to remain in unauthorized occupation of chosen few industrialists and firms by the clandestine support of Central Government and KPT. The Kandla Port land was leased out initially in 1960s and 170s on nomination basis without any due diligence. The initial lease(s) were not renewable, and yet such leases were renewed on two occasions in the year 1996 and in the year 2000 for 4 years with retrospective effect and importantly without any competitive bidding and without finding market rate of land so essential to determine the amount of lease rentals. Letter of renewal of 29 and 26 parties in the year of 1996 and in 2000 respectively are annexed and are marked as Annexure P2 (Colly). The leases were renewed despite the fact that the original lease holder had transferred leases without the consent of Central Government. In fact, despite being non-saleable many of these leases have been clandestinely sold off to third parties.
11. Facts on record if summoned would reveal that the Union of India never got the land of Kandla Port of 16,212 acre ever valued. As a result land leased out at throw away and doctored prices have been allowed to be mortgage at a very high price and at times even sold off. The said land has been repeatedly leased out on nomination basis at throw away prices without getting the market prices Union of India arbitrarily fixed extremely low rate without valuation of land to suit private interests. In exercise of its powers conferred under Section 49 of the Act, Tariff Authority for Major Ports (TAMP) a body of the Central Government, has approved revised annual lease rent of Rs.144 per acre. This is a extremely low figure and is in complete violation of government's own guidelines. TAMP in its order dated 17.01.2006 notes: The lease rent has to be fixed at 6% of the market value of the land so determined. However, the order at other place states, The KPT has stated that valuation of its salt land is not available.... in view of the constraints faced by KPT in obtaining the market value......... this Authority is inclined to accept the proposed rates. The authority in its order concludes, As no Market Value of the Salt land is available, calculation of lease rent @ 6% does not arise. A copy of TAMP Order dated 17.01.2006 is annexed and is marked as Annexure-P5. It is submitted that the said Order of TAMP is patently illegal and malafide. An acre of the land is worth crores of rupees and yet TAMP approves the lease rent rate of Rs.144 per acre which is pittance. The TAMP order violates of Union of India guidelines made under Section 34 of the Act.
14. Having regard to the facts of the case and submission by respondents and also the above quoted averments and submissions from the PIL pending before Delhi High Court and also in light of the diverse orders passed by Delhi High Court in the said PIL it prima facie appears that there may be substance in the submissions by the respondents that the subject matter of present petitions is connected with the issues pending in PIL before Delhi High Court. It prima facie appears that the issue raised in present petitions are intertwined with the issues raised in pending PIL before Delhi High Court.
15. In that view of the matter, this Court would not invite situation or create a situation or pass any order which may be in conflict with any order already passed or is likely to be passed by the Delhi High Court or which may have conflicting effect on the issue yet to be decided by the Delhi High Court in the said PIL.
16. Therefore, it appears necessary for the petitioner to either move appropriate application for transfer of present proceedings before Delhi High Court or to atleast seek appropriate order from Delhi High Court that present proceedings and / or any order of interim nature would not come in conflict with the said proceedings or orders passed by or likely to be passed by Delhi High Court and would not affect the said proceedings and it may not have any repercussion including consequence of creating any right or equity in favour of members of petitioner which may come in conflict with or have adverse consequence on the said proceedings or on the orders passed or required to be passed in the said proceedings and present petitions may be maintained and continued in this Court and appropriate orders including order in nature of interim relief as prayed for or otherwise with appropriate condition may be passed.
17. Therefore, petitioner is granted time until 25.12.2012 to seek appropriate order from Delhi High Court. Until then the ad-interim arrangement made under the earlier order dated 31.5.2012 in Special Civil Application No. 7455 of 2012 is allowed to continue on condition that every member of the petitioner association shall make requisite and appropriate payment / deposit of lease rental at the rate of Rs.13,750/- and so far as the balance amount i.e. difference between lease rate at Rs.23,250/- (as fixed by respondent No.3) and Rs.13,750/- is concerned every member of the petitioner association shall furnish bank guarantee (issued by a Nationalised Bank) which, should, initially be valid for a period of 100 days and thereafter members of the petitioner association shall keep the bank guarantee alive until further order by the Court. The said deposit / payment and the bank guarantee/s shall be without prejudice to the rights and contentions of petitioner and respondents and will be subject to the order/s that may be passed by way of interim relief subsequently (i.e. after the petitioner places on record order by Delhi High Court). The benefit of the order shall be available only to those members who deposit the amount as aforesaid on or before 10.12.2012.
(K.M.THAKER, J.) suresh Page 22