TaxTMI 
TaxTMI 
2019 (5) TMI 1980
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....oner(s) (in SCA Nos. 2535/2017, 2536/2017, 2537/2017 & 2538/2017 MR SN SOPARKAR, SR. ADVOCATE for NANAVATI ASSOCIATES for the Petitioner(s) (in SCA Nos. 2607/2012 & 673/2014) MR SN SOPARKAR, SR. ADVOCATE WITH MR AMAR BHATT for the Petitioner(s) (in SCA Nos. 13371/2013 & 8538/2016) MRS SANGEETA PAHWA, ADVOCATE for the Petitioner(s) (in SCA Nos. 5218/2014, 5219/2014, 5222, 5223/2014, 5224/2014, 10983/2015 and 10984/2015) MR MIHIR THAKORE, SR. ADVOCATE WITH MR SALIL THAKORE for the Petitioner(s) (in SCA No. 16225/2013) MR SN SOPARKAR, SR. ADVOCATE WITH MS. MINOO SHAH for the Petitioner (in SCA Nos. 16530/2013, 372/2016 & 6909/2012) MR MANISH BHATT, SR. ADVOCATE for MR BHATT & CO., for the Petitioner(s) (in SCA No. 13409/2014) MR MIHIR THAKORE, SR. ADVOCATE WITH MS.ARCHANA ACHARYA for the petitioner(s) (in SCA Nos. 2905/2015, 10306/2015) MRS SUMAN KHARE WITH MR AKSHAT KHARE for the petitioner(s) (in SCA No. 9342/2015) MR BD NAIK, SR. ADVOCATE & MR SHALIN MEHTA, SR. ADVOCATE WITH MR PREMAL RACHH for the petitioner(s) (in SCA Nos. 11497/2015, 10730/2016, 10891/2016, 10892/2016) MR KS NANAVATI, SR. ADVOCATE WITH MR RAJENDRA GOLANI for the petitioner(s) (In SC....
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....r Ports (hereinafter referred to as "TAMP"), the authority constituted under the Major Port Trusts Act, 1963 (hereinafter referred to as "said Act") exercising the powers and discharging functions inter alia with respect to the fixation of tariff for major ports including the respondent No. 3 KPT. The respondent No. 3 is one of the Major Port Trusts in whose premises the petitioner No. 1 is operating a common user liquid bulk tank farms. The petitioner No. 1 and its associate company JRE Tank Terminals Private Limited claim to be the lessees in respect of four plots in question, within the premises of the respondent No. 3. 3.3. The respondent No. 3 KPT had issued a letter of allotment dated 27th October, 1995 to the USTTL (predecessor of the petitioner No. 1) allotting land admeasuring 12 acres (equivalent to 48552 sq. mtrs.) for a period of 30 years i.e. till October 26, 2025, on "as is where is" basis for the purpose of storage and handling of hazardous and non-hazardous liquid bulk at Kandla. According to the petitioners, the said land was allotted under the lease on Premium-cum-Lease rent basis. Accordingly, the USTTL paid a lump sum premium of Rs. 40,00,000/- (Rupees forty ....
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.... by the Government of India, Ministry of Shipping, in exercise of the powers conferred under Section 111 of the the said Act, in supersession of the earlier Land Policy for Major Ports - 2004, for implementation by all Major Ports and Ennore Port limited with immediate effect. 3.8. Clause 6.3 of 2010 Policy provided for the manner and method for determination of market value. Accordingly, the SoR had to be recommended to the TAMP by the KPT as per the procedure and after taking into consideration the factors mentioned therein. The SoR had to be arrived at taking 6% of the market value as rent per annum, and was liable to be revised every five years. It was also provided inter alia that the Committee of the KPT should recommend to the TAMP, varying SoR in accordance with the end use as reflected in the Land Use Plan. 3.9. The respondent KPT keeping in view the Land Policy of 2010, once again sought to revise the lease rentals with regard to the lands comprised in the port and addressed a letter dated 29.4.2010 to the respondent TAMP proposing a revision in rent structure since 1999. The respondent No. 2 TAMP proposed a meeting on 29.7.2010 at Kandla for discussing the proposal....
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....o. 1 issued the policy guidelines for Land Management by Major Ports revising the earlier Policy of 2010. The Clause 18 thereof provided for the manner and method of determination of market value of Port lands. Keeping in mind the said guidelines the respondent No. 3 KPT again vide the letter dated 26.6.2014 filed its comprehensive proposal for revision of rate structure of lands before the respondent No. 2 TAMP. The respondent TAMP after undergoing the consultative process and after conducting the joint hearing of the KPT and the stakeholders, passed the order dated 13.11.2014, which was notified vide the Notification dated 4.12.2014, by which the respondent TAMP revised and increased the annual lease rentals for the KPT's lands under the categories "A to G". The categories A to F were based on their geographical location, however, the category G was created specifically based on its use for liquid storage tanks. Two sub-categories G-1 and G-2 were also created therein, whereby the category G-1 was given to the lands situated from Eastern bank of Kandla creek to Western bank of Nakti creek, and the category G-2 was in respect of the lands situated from West side of Nakti creek....
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....itioner No. 1 in the year 2003 against the respondent KPT, in relation to the demand of premium made under the lease in question). The respondent KPT reiterated its stand and informed the petitioners that if the dues as per the demand notices for lease rent were not cleared, it would initiate action. The petitioners, therefore, filed the present petition, seeking following reliefs as prayed for in paragraph 81 of the petition:- "81. a) That this Hon'ble Court be pleased to issue a writ of certiorari/a writ in the nature of certiorari and/or any other appropriate writ, order, or direction calling for the records and proceedings relating to the implementation of the order dated March 25, 2011 notified vide Notification G. No. 106 on May 11, 2011 by respondent No. 2 (2011 TAMP order) and after considering the legality and validity thereof, be pleased to quash and set aside the same; b) That this Hon'ble Court be pleased to issue a writ of certiorari/a writ in the nature of certiorari and/or any other appropriate writ, order, or direction calling for the records and proceedings relating to the implementation of the order dated November 13, 2014 notified vide N....
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....issued by the respondent KPT to the original allottee USTTL for the parcel of land in question was not maintainable. There was a huge outstanding amount payable by the allottee. 4.3. The respondent KPT vide its letter dated 27.10.1995 had informed the allottee USTTL that the parcel of land in question was decided to be allotted to the said company on the conditions mentioned therein. However, in violation of the mandatory conditions accepted by the original allottee USTTL, the parcel of the land was transferred to the present petitioner under the Scheme of Amalgamation, though there was absolute prohibition against the transfer of the plot in question without prior permission or sanction of the respondent KPT. The KPT being not a party to the proceeding of the Scheme of Amalgamation approved by the Calcutta High Court, the same was not binding to the KPT, and the present petitioners being third party cannot claim any right under the letter dated 27.10.1995. 4.4. In view of the provisions made in the land policy issued by the Government of India in exercise of the powers conferred under Section 111 of the said Act, a transfer of port land cannot be affected by an allottee with....
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....s per the prevailing guidelines issued by the Government of India on 8.3.2004. With a view to avoid duplication and multiple proposals to be made to TAMP it was decided to send a combined proposal for the subject lands i.e. the lands type A, B, C, D, and E after finalization of the allotment of the said 17 plots. 4.9. Though the bids for 17 plots were opened in the year 2006, the allotment to the bidders could not be made till 2009 because of pending permissions from the Government of India. Thereafter a Committee was appointed for fixing market value of the lands and schedule of rates as per the Land Policy. The Committee after going through various aspects and considering the parameters given in the Land Policy accepted the market value of land assessed by the approved land valuer. The KPT thereafter based on the said report had submitted the proposal to the TAMP on 19.4.2010 suggesting revision of rates for three consecutive slabs i.e. from July 1999 to 31st December 2004, 1st January 2004 to 31st December 2008 and 1st January 2009 to 31st December 2013. 4.10. On the receipt of the proposal from the KPT the TAMP following the consultative procedure had called for the objec....
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....ld not be said to be having retrospective effect, inasmuch as the TAMP had affected the lease rentals for the relevant period for which there was no revision, being 6% of the market value at the end of every five years as required under the document of lease and the land policy. In any case, the TAMP had the jurisdiction to retrospectively revise rates and escalate the lease rentals. 4.13. It has been contended without prejudice that the duration for the tariff provided in the order dated 25.3.2011 was to endure till 31.12.2013. The KPT, therefore, had made comprehensive proposal dated 26.6.2014, recommending revision of rates to the TAMP for the period commencing from 1.1.2014. The TAMP after following the consultative process and after conducting the joint hearing of the KPT and the stakeholders, passed the order dated 13.11.2014, which was notified vide Notification dated 4.12.2014. The KPT in its proposal had recommended the annual rent at 6% of the market value at Rs. 15,086.13 for G-1 category lands, being the rate received for similar lands (Storage Tank Farms) during auction conducted in the year 2011 and after 2% escalation every year to arrive at the land valuation as ....
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....nt rate under 2011 Tamp Order: 1999-2004 = Rs. 30/- per s.m/ annum 5% escalation 2004-2009 = Rs. 39/- per s.m/ annum 2% escalation 2009-2011= Rs. 80.4/- per s.m/ annum 2% escalation 11. Revised lease rent rate under 2014 TAMP Order 2014: Rs. 905.17 * Rate escalation @ 2% every year from 2014. 12. Whether there is change in category? C1 as per order of 2011 G1 as per order of 2014 13. Breakup of amount due from allottee: (As per KPT's claim) 1999-2004 = Rs. 37,10,344/- 2004-2009 = Rs. 28,67,966/- 2009-2011 = Rs. 63,70,416/- 2011-2013 = Rs. 21,83,363/- 2014-2018 = Rs. 22,24,81,912/- *Amount payable towards transfer fees & interest for delay payment have not been included. 14. Date of petition: 16.1.2017 15. Prayers 1. To quash and set aside TAMP Order dated 25.3.2011 and 13.11.2014 2. The change in categorization of lands on the basis of its use under order dated 13.11.2014 3. Setting aside the notices issued by KPT in relation to the demand of lease rent as per the orders of TAMP. 4. To declare that unilateral change to the premium cum lease rent structure as per existing lease deed to be illegal. (Page 6263) ....
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....905.17 * Rate escalation @ 2% every year from 2014. 12. Whether there is change in category? C1 as per order of 2011 G1 as per order of 2014 13. Breakup of amount due from allottee: (As per KPT's claim) 1994-1999 = Rs. 1,12,977/- 1999-2004 = Rs. 21,57,844/- 2004-2009 = Rs. 28,82,308/- 2009-2011 = Rs. 44,15,218/- 2011-2013 = Rs. 2,03,072/- 2014-2018 = Rs. 16,10,86,619/- * Amount payable towards transfer fees & interest for delay payment have not been included. * 3 times TAMP rate charged from 01/04/2017. 14. Date of petition: 16.1.2017 15. Prayers/ Challenge 1. To quash and set aside TAMP Order dated 25.3.2011 and 13.11.2014 2. The change in categorization of lands on the basis of its use under order dated 13.11.2014 3. Setting aside the notices issued by KPT in relation to the demand of lease rent as per the orders of TAMP. 4. To declare that unilateral change to the premium cum lease rent structure as per existing lease deed to be illegal. (Page 61) 16. Relief Granted No interim relief. 17. Status of Public Premises Eviction proceedings Not started due to proceedings pending before the High court of Gujara....
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.... relation to the demand of lease rent as per the orders of TAMP. 4. To declare that unilateral change to the premium cum lease rent structure as per existing lease deed to be illegal. 5. Seeking renewal of lease for a further period of 30 years WEF 2008. 16 Relief Granted No interim relief. 17 Status of Public Premises Eviction Proceedings Proceedings not started by Estate Officer under the PP Act due to Court Case filed by the above party. 18 Specific Facts: * Undertaking filed by petitioner to pay revised ground rent WEF 23.6.2008 as may be fixed by the competent authority Pg. 102 D * IMC had challenged KPT's decision to cancel the 2005 tenders. (2011 2 GLH 283) * IMC has made bid(s) for land(s) earmarked for tank farms (G1 category) Pg. 440. 19 Nature of preliminary objections * In absence of details of transfer provided by the petitioner, the right is reserved. 20 Issue of Renewal * Clause of renewal in the lease deed and the renewal is sought vide the present petition. SCA No. 2537 of 2017 Sr. No. Details 1 Petitioner JRE TANK TERMINALS PVT LTD (a company) 2 Lessee/Allottee Copy of Lease....
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.... Transfer made by the partnership firm is in contravention of the terms of allotment. * Group Company IMC had challenged KPT's decision to cancel the 2005 tenders. (2011 2 GLH 283) * Group Company has made bid(s) for land(s) earmarked for tank farms (G1 category) Pg. 435. 19 Nature of preliminary objections Transfer in breach of conditions of allotment letter is void and therefore no (legal) right ensues unto the transferee company. 20 Issue of Renewal No clause for renewal and no reliefs for renewal sought. SCA No. 13371 of 2013 Sr. No. Details 1 Petitioner Mother Dairy Fruit & Vegetables Pvt. Ltd. 2 Lessee/Allottee Copy of Lease Deed/Allotment Letter and Important terms/clauses Lease deed with respect to parcel of land admeasuring 27458 sq.mts. issued in favour of National Dairy Development Board executed on 28.6.2001. (Page 4874) 3 Duration of lease/holding 29.5.1989 to 28.5.2019 4 Status of lessee/allottee Lease due to expire on 29.5.2019 5 Name of original lessee/allottee National Development Dairy Board. 6 Nature of change/transfer Order dated 13.8.2008, the Hon'ble High Court of ....
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....he terms of lease Wrt to the subject land 21 Issue of renewal No clause for renewal and no reliefs for renewal sought SCA No. 8538 of 2016 Sr. No. Details 1 Petitioner Mother Dairy Fruit & Vegetables Pvt. Ltd. 2 Lessee/Allottee Copy of Lease Deed/Allotment Letter and Important terms/clauses Lease deed with respect to parcel of land admeasuring 27458 sq.mts. issued in favour of National Dairy Development Board executed on 28.6.2001. (Page 101-121) 3 Duration of lease/holding 29.5.1989 to 28.5.2019 4 Status of lessee/allottee Lease due to expire on 29.5.2019 5 Name of original lessee/allottee National Development Dairy Board. 6 Nature of change/transfer Order dated 13.8.2008, the Hon'ble High Court of Delhi sanctioning the amalgamation scheme between Dhara Ltd. and the petitioner. (separately given) 7 Date of Application for transfer made to KPT. Letters dated 8.10.2008 & others the petitioner had requested DPT to change the name from Dhara Ltd. to Mother Dairy Fruit & Vegetables Pvt. Ltd on the record of the Port. (AnnexureH as per amendment) 8 Response by KPT to application for transfer....
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....ssue of renewal No clause for renewal and no reliefs for renewal sought SCA No. 10611 of 2016 Sr. No. Details 1 Petitioner Ineos Styrolution India Limited 2 Lessee/Allottee Copy of Lease Deed/Allotment Letter Possession note dated 6.1.1990 in favour of ABS Plastics Ltd. Wrt land admeasuring 11,695 sq.mtrs. Indenture of lease in favour of ABS Industries Ltd. dated 15.2.1997. (Page 4041) 3 Duration of lease/holding 06.01.1990 to 05.01.2020. 4 Status of lessee/allottee Unauthorized occupant since transfer by erstwhile allottee / lessee (as the transfer agreement have not been produced, the transfer date is not known) 5 Name of original lessee/allottee ABS Industries Ltd. 6 Nature of change/transfer Under Share Purchase Agreement's. * Petitioner seeks change on the premise of the change of name of the company @ pg. 62/63. 7 Date of Application for transfer made to KPT. NA 8 Response by KPT to application for transfer. Show cause notice dated 18.2.2014 as to why transfer effected without previous permission, and the copies of agreement of transfer called for.(Page 66) * Reply by ....
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....on Ltd. 2 Lessee/Allottee Copy of Lease Deed/Allotment Letter and Important terms/clauses Lease deed WRT parcel of land admeasuring 4,68,103 sq.mts issued in favour of Indian Oil Corporation Ltd. on 30.5.2004. Lease deed WRT parcel of land admeasuring 15,602 sq.mts issued in favour of Indian Oil Corporation Ltd. Lease deed WRT parcel of land admeasuring 55,050 sq.mts issued in favour of Indian Oil Corporation Ltd. Lease deed WRT parcel of land admeasuring 1,16,774 sq.mts issued in favour of Indian Oil Corporation Ltd. Lease deed WRT parcel of land admeasuring 86,700 sq.mts issued in favour of Indian Oil Corporation Ltd. Letter of allotment WRT parcel of land admeasuring 10,430 sq.mts issued in favour of Indian Oil Corporation Ltd. Letter of allotment WRT parcel of land admeasuring 6,589 sq.mts issued in favour of Indian Oil Corporation Ltd. Letter of allotment WRT parcel of land admeasuring 220 acres issued in favour of Indian Oil Corporation Ltd on 28/10/1993. Thereafter, M/s. IOCL surrendered the portion of land of 54.18 acres on 05/04/2002. (Page 131B) 3 Duration of lease/holding 1.2.1988 to 31.1.2018 for a period of 30 years for land ad....
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....2014 TAMP Order Land admeasuring & 671078 sq. mtrs, 86700 sq. mtrs & 15602 sq. mtrs 2014: Rs. 905.17 * Rate escalation @ 2% every year from 2014. Land admeasuring 116774 sq. mtrs. 2014: Rs. 108 * Rate escalation @ 2% every year from 2014. Land admeasuring 4,68,103 sq.mts. & 55050 sq. mtrs. 2014: Rs. 597.59 * Rate escalation @ 2% every year from 2014. Land admeasuring 10430 sq.mts. & 6589 sq. mtrs. 2014: Rs. 108/- * Rate escalation @ 2% every year from 2014. 12 Whether any change in category? Land admeasuring 4,68,103 sq.mts C1 as per order of 2011 G2 as per order of 2014 Land admeasuring 6,71,078 sq.mts C1 as per order of 2011 G1 as per order of 2014 Land admeasuring 15,602 sq.mts : C1 as per order of 2011 G1 as per order of 2014 Land admeasuring 55,050 sq.mts C1 as per order of 2011 G2 as per order of 2014 Land admeasuring 1,16,774 sq.mts : No change in category. Land admeasuring 86,700 sq.mts : C1 as per order of 2011 G1 as per order of 2014 Land admeasuring 6,589 sq.mts : No change in category Land admeasuring 10,430 sq.mts : No change in category. 13 Breakup of amount ....
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.... of Lease Deed/Allottme nt Letter and Important terms/clauses Lease deed WRT parcel of land admeasuring 2,63,107 sq.mts issued in favour of Bharat Petroleum Corporation Ltd. on 10.1.1991 (Page 152A) Letter of Allotment WRT parcel of land admeasuring 4,441 sq.mts issued in favour of Bharat Petroleum Corporation Ltd. on 23.11.1998 (Page 155) 3 Duration of lease/holding 1.10.1983 to 31.7.2013 for a period of 30 years for land admeasuring 2,63,107 sq.mts. 23.11.1998 to 31.7.2013 coterminus with land admg. 2,63,107 for land admeasuring 4,441 sq.mts. 4 Status of lessee/allottee Unauthorized occupant since 31.7.2013 for land admeasuring 2,63,107 sq.mts. and land admeasuring 4,441 sq.mts. 5 Name of original lessee/allottee Bharat Petroleum Corporation Ltd. 6 Nature of change/transfer No change/transfer 7 Date of Application for transfer made to KPT. NA 8 Response by KPT to application for transfer. N.A. 9 Original lease rent rate Rs. 11 per sq.mt for land admeasuring 2,63,107 sq.mts. Rs. 28 per sq.mt for land admeasuring 4,441 sq.mts. 10 Revised lease rent rate under TAMP Order 2011 For land admeasuring 2,6....
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....industan Petroleum Corporation Ltd on 19021990 Letter of Allotment WRT parcel of land admeasuring 50,799 sq.mts issued in favour of M/s. Hindustan Petroleum Corporation Ltd. on 20031998 Letter of Allotment WRT parcel of land admeasuring 2,786 sq.mts issued in favour of M/s. Hindustan Petroleum Corporation Ltd . Letter of Allotment WRT parcel of land admeasuring 1,28,618 sq.mts issued in favour of M/s. Hindustan Petroleum Corporation Ltd on 16/10/1984 Letter of Allotment WRT parcel of land admeasuring 91,567 sq.mts issued in favour of M/s. Hindustan Petroleum Corporation Ltd on 11111983 3 Duration of lease/holding 1.3.1990 to 29.2.2020 for a period of 30 years for land admeasuring 78,370 sq.mts. 20.3.1998 to 29.2.2020 for a period of land admeasuring 50,799 sq.mts. 1.8.1984 to 31.7.2014 for a period of 30 years for land admeasuring 2,786 sq.mts. 1.11.1984 to 31.10.2014 for a period of 30 years for land admeasuring 1,28,618 sq.mts. 1.12.1983 to 30.11.2013 for a period of 30 years for land admeasuring 91,567 sq.mts. 4 Status of lessee/allottee Petitioner has handed over possession WRT land admeasuring 1,28,618 sq.mts. With respect to land a....
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....2018 = Rs. 26,49,72,483/- For land admeasuring 78,370 sq.mts & land admeasuring 50,799 sq.mts & 2,786 sq.mts 1994-1999 = Rs. 0.00/- 1999-2004 = Rs. 0.00/- 2004-2009 = Rs. 0.00/- 2009-2011 = Rs. 0.00/- 2011-2013 = Rs. 0.00/- 2014-2018 = Rs. 0.00/- * Amount payable towards interest for delay payment have not been included. 14 Date of petition: 18.10.2013 15 Prayers A. To admit and allow the present petition. B. To set aside the order dated 25.3.2011 of TAMP. C. To set aside the demand notes claiming amount of Rs. 32,58,74,733/levied for the revised rentals and interest with retrospective effect by KPT on the basis of TAMP order dated 25.3.2011. D. To direct that amount of Rs. 3,28,42,389/paid under protest for period 20122013 and amount of Rs. 1,26,31,037/( for 2 plots) for year 20132014 be adjusted with future rentals. (Page 2526) 16 Relief Granted Relief granted vide order dated 4.12.2013 passed in SCA No. 16225 of 2013 observing that the impugned notices and letters issued by KPT qua the recovery of tariff with retrospective effect only shall remain stayed till then. 17 Status of Public Premises Eviction proceedings....
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....annum. iv) Land admg. 50,799 sq.mts = Rs. 28/per sq. mtrs/per annum v) Land admg. 2786 sq.mts = Rs. 11/per sq. mtrs/per annum 10 Revised lease rent rate under TAMP Order 2011 For land admeasuring 91,567 sq.mts & 128618 sq. mtrs.. 1994-1999 = Rs. 11/- per sm/per annum 1999-2004 = Rs. 30/- per s.m/per annum 2% escalation 2004-2009 = Rs. 39/- per s.m/ per annum 2% escalation 2009-2011= Rs. 80.4/- per s.m/per annum 2% escalation For land admeasuring 78,370 sq.mts. & 50,799 & 2786 sq. mtrs. 1994-1999 = Rs. 11/- per sm/per annum 1999-2004 = Rs. 30/- per s.m/ per annum 2% escalation 2004-2009 = Rs. 39/- per s.m/per annum 2% escalation 2009-2013= Rs. 80.4/- per s.m/per annum 2% escalation 11 Revised lease rent under 2014 TAMP Order For land admeasuring 91,567 sq.mts & 128618 sq. mtrs. 2014: Rs. 597.59/- * Rate escalation @ 2% every year from 2014. For land admeasuring 78,370 sq.mts. & 50,799 & 2786 sq. mtrs. 2014: Rs. 108/- * Rate escalation @ 2% every year from 2014. 12 Whether any change in category? For land admeasuring 91,567 sq.mts & 128618 sq. mtrs. C1 as per order of 2011 G2 as per order of 2014 For ....
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.... Allotment letter WRT parcel of land admeasuring 7,330 sq.mts issued in favour of ONGC on 9.3.1993 for allotment of land on Leave and Licence Agreement. (Page 34) 3 Duration of lease/holding Last renewal was from 23.8.2006 to 22.02.2007. (Page 37) 4 Status of lessee/allottee Unauthorized occupant since 23.2.2007 5 Name of original lessee/allottee Oil and Natural Gas Corporation Ltd. (ONGC) 6 Nature of change/transfer NA 7 Date of Application for transfer made to KPT. NA 8 Response by KPT to application for transfer. N.A. 9 Original lease rent rate Rs. 1,20,945/-( for 11 months) 10 Revised lease rent rate under TAMP Order 2011 1994-1999 = Rs. 16/Per sq. mtr/per annum 1999-2004 = Rs. 37.80 Per sq. mtr/per annum 2004-2009 = Rs. 48.60 Per sq. mtr/per annum 2009-2011 = Rs. 100.2 Per sq. mtr/per annum 11 Revised lease rent under 2014 TAMP Order 2014: Rs. 205.80 per sq. mtr /per annum *Rate escalation @ 2% every year from 2014.* 12 Whether any change in category? There is no change in category. 13 Breakup of amount due : 1999-2004= Rs. 7,99,116/- 2004-2009 = Rs. 7,35,053/- ....
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....eriod of 30 years. 4 Status of lessee/allottee Unauthorized occupant since 7.11.2013 5 Name of original lessee/allottee M/s. LAXMI MOTORS LTD 6 Nature of change/transfer NA 7 Date of Application for transfer made to KPT. NA 8 Response by KPT to application for transfer. NA 9 Original lease rent rate Rs. 2.70 per sq.mt./per annum 10 Revised lease rent rate under 2011 Tamp Order: 1994-1999 = Rs. 16/-per sm/annum 1999-2004 = Rs. 36/-per s.m/ annum 5% escalation 2004-2009= Rs. 46.2/-per s.m/ annum 2% escalation 2009-2011= Rs. 94.80/-per s.m/ annum 2% escalation 11 Revised lease rent rate under 2014 TAMP Order 2014: Rs. 403.2 * Rate escalation @ 2% every year from 2014. 12 Whether there is change in category? F2 as per order of 2011 F2 as per order of 2014 13 Breakup of amount due from allottee: (As per KPT's claim) 1994-1999 = Rs. 16,820/- 1999-2004 = Rs. 2,37,845/- 2004-2009 = Rs. 3,20,854/- 2009-2011 = Rs. 3,47,048/- 2011-2013 = Rs. 1,85,578/- 2014-2018 = Rs. 87,05,134/- ** interest for delay payment not included in the dues. * 3 times TAMP approved rate c....
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....ase rent rate Rs. 1,15,240.95/( yearly) 10 Revised lease rent rate under TAMP Order 2011 2001-2004 = Rs. 45.64/- per s.m/ annum 5% escalation 2004-2009 = Rs. 53.4/- per s.m/ annum 2% escalation 2009-2011= Rs. 110.40/- per s.m/ annum 2% escalation * Lease expired during the year 2001. 11 Revised lease rent under 2014 TAMP Order 2014: Rs. 236.52 (A category) * Rate escalation @ 2% every year from 2014. 12 Whether any change in category? "A" as per order of 2011 "A" as per order of 2014 13 Breakup of amount due : As per KPT's claim 2001-2004 = Rs. 19,72,614/- 2004-2009 = Rs. 1,87,82,749/- 2009-2011 = Rs. 5,19,36,267/- 2011-2013 = Rs. 5,39,26,247/- 2014-2018 = Rs. 23,56,76,229/- H. The above Outstanding dues is without interest. 14 Date of petition : 7.1.2014 15 Prayers 1. To direct the respondents to retrospectively renew the lease agreement dated 25.9.1971 pursuant to the application dated 16.2.2000. 2. To declare that the bills of compensation dated 1.11.2013 raising the demand at such exorbitant rate without any basis is bad and illegal. 3. To quash and set TAMP Order dated 25.3.2011 an....
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....annum 2% escalation 2009-2011= Rs. 110.4/- per s.m/ annum 2% escalation 11 Revised lease rent under 2014 TAMP Order 2014: Rs. 236.52 * Rate escalation @ 2% every year from 2014. 12 Whether any change in category? Category A in 2011 Category A in 2014. 13 Breakup of amount due: (As per KPT's Claim) 1994-1999 = Rs. 0.00/- 1999-2004 = Rs. 0.00/- 2004-2009 = Rs. 1,34,45,606/- 2009-2011 = Rs. 1,94,48,567/- 2011-2013 = Rs. 2,02,35,139/- 2014-2018 = Rs. 7,10,23,622/- * Diff. bill for the period from 1994 to 2008 not issued to the party due to court case pending in the High Court of Gujarat. 14 Date of petition : 16.2.2012 15 Prayers C. To direct respondent no.1 to dispose off the application for renewal of lands and fixing rate commensurate and appropriate to the nature of industry of the petitioner. D. To set aside the bills of compensation issued by KPT. E. To direct respondent no.2 to exercise powers under the Act and conditionality clause available in order of TAMP dated 28.8.2003 and renew the lease at the rates commensurate and appropriate to the nature of industry of the petitioner. E/1 To quash an....
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....A 8 Response by KPT to application for transfer. NA 9 Original lease rent rate Rs. 1.50 per sq.mt. / per month. 10 Revised lease rent rate under TAMP Order 2011 2002-2004 = Rs. 43.76 Per sq. mtr/per annum 2004-2009 = Rs. 48.60 Per sq. mtr/per annum 2009-2011 = Rs. 100.2 Per sq. mtr/per annum 11 Revised lease rent under 2014 TAMP Order 2014: Rs. 205.80 per sq. mtr /per annum *Rate escalation @ 2% every year from 2014.* 12 Whether any change in category? There is no change in category. 13 Breakup of amount due : (As per KPT's claim) 2002-2004 = Rs. 31,43,000/- 2004-2009 = Rs. 41,84,007/- 2009-2011= Rs. 2,44,41,287/- 2011-2013 = Rs. 1,94,94,439/- 2014-2018 = Rs. 4,50,39,996/- *Amount payable towards interest for delay payment have not been included. 14 Date of petition : 7.4.2014. 15 Prayers 22. To admit and allow the petition. 23. To declare that bills of compensation raised are unreasonable and without any basis. 24. To declare clause 6.2.2.2(e) and clause 6.2.2.3(g) of Land Policy, 2010 being unreasonable and arbitrary. 25. To set aside Land Policy 2010 and 2014. (Page 2122)....
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.... clause 6.2.2.2(e) and clause 6.2.2.3(g) of Land Policy, 2010 being unreasonable and arbitrary. To set aside Land Policy 2010 and 2014. (Page 2021) 16 Relief Granted Vide order dated 22.04.2014, the Hon'ble Court granted relief staying the operation and implementation of Bills of Compensation and further restraining respondents from taking coercive steps 17 Status of Public Premises Eviction proceedings PP Act Case no. 6 of 2013 concluded holding the petitioner to be in unauthorized occupation of the subject premises. 18 Specific Facts : Possession handed back to DPT pending the petition. 19 Nature of Preliminary Objections NA 20 Issue of Renewal No clause for renewal in the agreement and no reliefs sought. SCA No. 5222 of 2014 Sr. No. Details 1 Petitioner PSL Limited. 2 Lessee/Allottee Copy of Lease Deed/Allotment Letter and Important terms/clauses Letter of Allotment WRT parcel of land admeasuring 39,934 sq.mts issued in favour of Punj Sons Pvt.Ltd.(PSL) on 18.10.1985. (Page 26) 3 Duration of lease/holding Initial allotment was from 18.10.1985 to 31.10.1988 i.e. for a period of 3 years w....
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....ion handed over to DPT pending the petition. * Order passed u/s 5 and section 7(pg.270 of SCA 5222/14) of PP ACT. 13.4.2007 undertaking to pay license fees if revised upwardly covering the period of license. Pg. 192 19 Nature of Preliminary Objections NA 20 Issue of Renewal Para 11 (B) of the prayer clause is with respect to renewal of lease agreement. SCA No. 5223 of 2014 Sr. No. Details 1 Petitioner PSL Limited. 2 Lessee/Allottee Copy of Lease Deed/Allottment Letter and Important terms/clauses Leave and License agreement on temporary basis WRT parcel of land admeasuring 51,000 sq.mts issued in favour of PSL PIPE COATERS, vide letter dated 29.05.1992. (Page 26) 3 Duration of lease/holding Initial allotment was from the date of occupation i.e. for a period of 11 months which was further extended up to a period i.e. up to 31.7.2007 4 Status of lessee/allottee Unauthorized occupant since 1.8.2008. 5 Name of original lessee/allottee PSL PIPE COATERS, (ON LEAVE & LICENSE BASIS) 6 Nature of change/transfer No details of transfer provided. 7 Date of Application for transfer made to KPT.....
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....992. (Page 26) 3 Duration of lease/holding Initial allotment was from 09.12.1991 to 08.11.1992 i.e. for a period of 11 months which was further extended up to a period i.e. up to 31.7.2007 4 Status of lessee/allottee Unauthorized occupant since 1.8.2008. 5 Name of original lessee/allottee PSL PIPE COATERS PVT. LTD., (ON LEAVE & LICENSE BASIS) 6 Nature of change/transfer No details of transfer provided. 7 Date of Application for transfer made to KPT. NA 8 Response by KPT to application for transfer. NA 9 Original lease rent rate Rs. 0.50 per sq.mt. 10 Revised lease rent rate under TAMP Order 2011 1994-1999 = Rs. 16/Per sq. mtr/per annum 1999-2004 = Rs. 37.80 Per sq. mtr/per annum 2004-2009 = Rs. 48.60 Per sq. mtr/per annum 2009-2011 = Rs. 100.2 Per sq. mtr/per annum 11 Revised lease rent under 2014 TAMP Order 2014: Rs. 205.80 per sq. mtr /per annum *Rate escalation @ 2% every year from 2014.* 12 Whether any change in category? There is no change in category. 13 Breakup of amount due : (As per KPT's claim) 1999-2004 = Rs. 69,81,000/- 2004-2009 = Rs. 94,45,537/- 200....
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.... 1.01.2008 to 31.12.2008 = Rs.6.77 Per sq. mtr/per month 1.01.2009 to 31.12.2009 = Rs.16.50 Per sq. mtr/per month 1.01.2010 to 31.12.2010 = Rs. 16.83 Per sq. mtr/per month. 1.01.2011 to 31.12.2011 = Rs. 17.17 Per sq. mtr/per month 1.01.2012 to 31.12.2012 = Rs. 17.51 Per sq. mtr/per month 1.01.2013 to 12.09.2013 = Rs. 17.86 Per sq. mtr/per month 13.09.2013 to 31.12.2013 = Rs. 53.58 Per sq. mtr/per month 1.01.2014 to 31.12.2014 = Rs. 54.65 Per sq. mtr/per month 1.01.2015 to 3.2.2015 = Rs. 55.74 Per sq. mtr/per month 11 Revised lease rent under 2014 TAMP Order The rates applicable with effect from 1.01.2014 have been not approved by TAMP hence the difference of rate shall be payable as per revised rate as and when approved by TAMP 12 Whether any change in category? NA 13 Dues under 2014 TAMP Order : Retrospective/Pros Pective As per column 11 14 Date of petition: 03.07.2015 15 Prayers A. To admit and allow the petition. B. Unreasonable demand at such exorbitant rates without any basis as being illegal, unreasonable, arbitrary and violative Art 14 and 19(1)(g) of the constitution of India; C. To issue an appro....
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....77 Per sq. mtr/per month 1.01.2009 to 31.12.2009 = Rs. 16.50 Per sq. mtr/per month 1.01.2010 to 31.12.2010 = Rs. 16.83 Per sq. mtr/per month. 1.01.2011 to 31.12.2011 = Rs. 17.17 Per sq. mtr/per month 1.01.2012 to 31.12.2012 = Rs. 17.51 Per sq. mtr/per month 1.01.2013 to 12.09.2013 = Rs. 17.86 Per sq. mtr/per month 13.09.2013 to 31.12.2013 = Rs. 53.58 Per sq. mtr/per month 1.01.2014 to 18.11.2014 = Rs. 54.65 Per sq. mtr/per month 11 Revised lease rent under 2014 TAMP Order The rates applicable with effect from 1.01.2014 have been not approved by TAMP hence the difference of rate shall be payable as per revised rate as and when approved by TAMP 12 Whether any change in category? NA 13 Dues under 2014 TAMP Order : Retrospective/Pr ospective As per column 11 14 Date of petition: 03.07.2015 15 Prayers A. To admit and allow the petition. B. Unreasonable demand at such exorbitant rates without any basis as being illegal, unreasonable, arbitrary and violative Art 14 and 19(1)(g) of the constitution of India; C. To issue an appropriate writ, order or direction declaring clauses 6.2.2.2(e) and clause 6.2.2.3(g) of the La....
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.... 2% escalation 2009-2011= Rs. 180.60/-per s.m/ annum 2% escalation 11. Revised lease rent under 2014 TAMP Order 2014: Rs. 905.17 * Rate escalation @ 2% every year from 2014. 12. Whether any change in category? E as per order of 2011 G1 as per order of 2014. 13. Dues under 2014 TAMP Order : Retrospective/Prospective Jan, 2014 - Nov, 2014= Rs. 1,86,77,278/- Nov, 2014 - Dec, 2018: = Rs. 9,24,76,367/- 14. Breakup of amount due : (As per KPT's claim) 1994-1999 = Rs. 9,22,341/- 1999-2004 = Rs. 22,79,644/- 2004-2009 = Rs. 22,45,598/- 2009-2011 = Rs. 69,73,952/- 2011-2013 = Rs. 98,88,431/- 2014-2018 = Rs. 11,11,53,645/- * transfer fees & interest for delay payment not included in the dues. * 3 times TAMP approved charged from 03/07/2008 15. Date of petition: 6.7.2015 16. Prayers 1. To quash and set aside the bills of compensation. 2. To direct respondent authorities to renew lease agreement dated 3.7.1978 at the rates prevalent at prevalent time. 3. Quash and set aside the order dated 13.11.2014 passed by the TAMP 4. To declare that the subject land leased to petitioner is covered under Category E instead of ....
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....7.2010. 9. Original lease rent rate Rs. 2.50 per sq.mt. 10. Revised lease rent rate under Tamp Order 2011 2004-2009 = Rs. 87.6/-per s.m/ annum 2% escalation 2009-2011= Rs. 180.60/-per s.m/ annum 2% escalation 11. Revised lease rent under 2014 TAMP Order 2014: Rs. 350.16/- * Rate escalation @ 2% every year from 2014. 12. Whether any change in category? There is no change in the category. 13. Breakup of amount due : (As per KPT's claim) 2014-2018 = Rs.1,29,20,418 /- 14. Date of petition : 30.6.2016 15. Prayers 1. To quash and set aside impugned notices dated 3.6.2016 and 3/8.12.2014 issued by respondent no.2 and 3. 2. To direct the respondents to renew the Leave and License Agreement in respect of subject plot admeasuring 2534.530 sq.mts. at the rates prevalent at the relevant time. 3. To hold and declare the Bills of Compensation raising unreasonable demand at exorbitant rates bad and illegal. 4. To direct respondent authorities not to take any coercive steps and to stay the impugned notices dated 3.6.2016 and 3/8.12.2014. 5. To stay the operation and execution of compensation bills raised by respondents in respect of s....
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....provided details of the order of amalgamation of companies vide a communication of 11.7.2010. (Page 68) 9 Original lease rent rate Rs. 2.50 per sq.mt. 10 Revised lease rent rate under TAMP Order 2011 : 1996-1999 = Rs.30-/per sm/annum 1999-2004 = Rs. 67.8/-per s.m/ annum 5% escalation 2004-2009 = Rs. 87.6/-per s.m/ annum 2% escalation 2009-2011= Rs. 180.60/-per s.m/ annum 2% escalation 11 Revised lease rent under 2014 TAMP Order 2014: Rs. 350.16/- * Rate escalation @ 2% every year from 2014. 12 Whether any change in category? There is no change in the category. 13 Breakup of amount due : (As per KPT's claim) 2014-2018 = Rs. 27,60,673/- 14 Date of petition : 30.6.2016 15 Prayers 1. To quash and set aside impugned notices dated 3.6.2016 and 3/8.12.2014 issued by respondent no.2 and 3. 2. To direct the respondents to renew the Leave and License Agreement in respect of subject plot admeasuring 542 sq.mts. at the rates prevalent at the relevant time. 3. To hold and declare the Bills of Compensation raising unreasonable demand at exorbitant rates bad and illegal. 4. To direct respondent authorities not....
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....ide letter dated 23.3.2012 petitioning company had provided details of the order of amalgamation of companies vide a communication of 11.7.2010. (Page 60) 9. Original lease rent rate Rs. 1.50 per sq.mt. 10. Revised lease rent rate under TAMP Order 2011 2008-2009 = Rs. 42.21/-per s.m/ annum 2% escalation 2009-2011= Rs. 80.40/-per s.m/ annum 2% escalation 11. Revised lease rent under 2014 TAMP Order 2014: Rs. 108/- * Rate escalation @ 2% every year from 2014. 12. Whether any change in category? There is no change in category. 13. Dues under 2014 TAMP Order : Retrospective/P rospective Jan, 2014 - Nov, 2014: = Rs. 79,168/- Nov, 2014 - Dec, 2018: = Rs. 62,76,960/- 14. Breakup of amount due: 2014-2018 = Rs. 63,56,128/- 15. Date of petition : 30.6.2016 16. Prayers 1. To quash and set aside impugned notices dated 3.6.2016 and 3/8.12.2014 issued by respondent no.2 and 3. 2. To direct the respondents to renew the Leave and License Agreement in respect of subject plot admeasuring 3617.50 sq.mts. at the rates prevalent at the relevant time. 3. To hold and declare the Bills of Compensation raising unreasonable demand at exorbitant ....
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....14: Rs. 403.2 * Rate escalation @ 2% every year from 2014. 12 Whether there is change in category? F2 as per order of 2011 F2 as per order of 2014 13 Dues under 2014 TAMP Order: Retrospective/Prospective Jan, 2014 - Nov, 2014: = Rs. 23,75,123/- Nov, 2014 - Dec, 2018: = Rs. 2,23,23,242/- 14 Breakup of amount due from allottee: (As per KPT's claim) 1994-1999 = Rs. 7,35,875/- 1999-2004 = Rs. 24,84,195/- 2004-2009 = Rs. 19,38,849/- 2009-2011 = Rs. 21,00,619/- 2011-2013 = Rs. 21,93,248/- 2014-2018 = Rs. 2,46,98,365/- * interest for delay payment not included in the dues. 15 Date of petition: 23.6.2015 16 Prayers 1. To direct the respondent to forthwith renew the lease of land admeasuring 11,983 sq.mts in pursuance to the application dated 9.5.2011 at the rate prevalent at the relevant time. 2. To set aside the notice dated 18.5.2015 and 26.5.2015 issued by respondent no.2 3. To declare that the bills of compensation, raising unreasonable demand at such exorbitant rates are without any basis. 4. To declare differential bills raising unreasonable demand at such exorbitant rates are without any basis. 5....
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.... years commencing from 24.6.1978. (Page 75A) 7 Date of Application for transfer made to KPT. No details on record 8 Response by KPT to application for transfer. No details on record. 9 Original lease rent rate Rs. 1.80 per sq.mt./per annum 10 Revised lease rent rate under : 1994-1999 = Rs. 16/-per sm/annum 1999-2004 = Rs. 41.4/-per s.m/ annum 5% escalation 2004-2009 = Rs. 53.4/-per s.m/ annum 2% escalation 2009-2011= Rs. 110.40/-per s.m/ annum 2% escalation 11 Revised lease rent under 2014 TAMP Order 2014: Rs. 905.17 * Rate escalation @ 2% every year from 2014. 12 Whether any change in category? A as per order of 2011 G1 as per order of 2014 13 Dues under 2014 TAMP Order : Retrospective/P Rospective Jan, 2014 - Nov, 2014: = Rs. 0.00/- Nov, 2014 - Dec, 2018: = Rs. 0.00/- 14 Breakup of amount due : (As per KPT's claim) 1994-1999 = Rs. 3,18,761/- 1999-2004 = Rs. 9,37,332/- 2004-2009 = Rs. 9,22,233/- 2009-2011 = Rs. 0.00/- 2011-2013 = Rs. 0.00/- 2014-2018 = Rs. 0.00/- 15 Date of petition : 11.2.2015 16 Prayers A. To direct respondents to forthwith renew the lea....
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....piry of the period of lease, and therefore, such petitioner had no locus standi to maintain the petition. In case of M/s. Mother Dairy Fruits & Vegetable Pvt. Ltd., also the transfer was in breach of conditions of lease and without prior permission of KPT, and therefore, the transfer was void. No interest could be said to have been transferred to enforce the terms of lease. In case of M/s. INEOS Styrolution India Ltd., the change in the name of the Company was consequence to the change in the shareholdings of the Company under the share purchase agreement and was a facade to cover the transfer in contravention of the conditions of deed. The transferee Company M/s. INEOS Styrolution India Limited is not the lessee under the lease deed, and therefore, not entitled to the enforcement of rights on the basis of lease created in favour of the original allottee. 7.2. The basic postulate of the argument of Mr. Joshi is that the petitioners in the afore-stated petitions are the transferees and in unauthorised occupation of their respective plots in question, and therefore, they have no locus standi to file and maintain the petitions claiming relief against the KPT. Elaborating his submis....
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....ot justified in levying the transfer charges is contrary to the legal position settled by the Supreme Court in various judgments and such contention should not be accepted by the Court. Placing reliance upon various decisions of the Supreme Court in case of General Radio and Appliances Co. Ltd. & Ors. Vs. M.A. Khader (Dead) by LRs., (1986) 2 SCC 656, in case of Singer India Ltd. Vs. Chander Mohan Chadha & Ors., reported (2004) 7 SCC 1, and in case of U.P. State Industrial Dev. Corp. Ltd. Vs. Monsanto Manufacturers (P) Ltd. & Anr., reported in AIR 2015 SCW 1205, he submitted that such transfer is voluntary and the company is not entitled to seek lifting of corporate veil to contend that two entities are one and the same. Placing reliance on the decision of the Delhi High Court, Mr. Joshi submitted that even conversion of partnership firm to a joint stock company under the provisions of Companies Act 1956 amounts to transfer. Since transfer could be affected only with the prior approval of KPT, the contention of the petitioners that the transfer fees ought to be computed as on the date of transfer was misconceived. He further submitted that in case where no lease deed was executed, t....
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.... would have been defended by IMC only, however, the KPT had merely ignored the transfer. He further submitted that, in any case, the issue of eviction of IMC on the ground of non-payment of the rent for an illegal occupation of the land in question, is not the issue to be decided in the present petitions. In any event, though the KPT was duly informed about the transfer in the year 2010, the KPT had not taken any action or filed any proceedings against the IMC. The KPT has not taken any decision as to whether the land should be re-auctioned or not in view of the Clause 16(3)(i) of the land policy guidelines for Major Ports issued in 2014. 8.2 In case of the petitioner JRE Tank Terminals Pvt. Ltd. (SCA No. 2537 of 2017) Mr. Soparkar submitted that the JRE Tank was incorporated on November 16, 2004 under Part-IX of the Companies Act and was earlier known as M/s. JR Enterprises, a partnership firm, which was registered as a company after complying with all the requirements under Part-IX of the Companies Act. Pressing into service the provisions contained in Section 575 of the Companies Act, he submitted that on the registration of the company under Part-IX of the said Act, the erst....
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....97 of 2015, 10730 of 2016, 10891 of 2016 and 10892 of 2016 filed by Kesar Terminals and Infrastructure Limited, the learned Sr. Advocate Mr. B.B. Naik appearing with Mr. Premal Rachh has submitted that in the year 1979, Distiller Trading Corporation Ltd., was amalgamated with Kesar Sugar Work Ltd., by virtue of the order passed by the Bombay High Court on 13.6.1979 and thereafter the name of the Company i.e. Kesar Sugar Work Ltd., was changed to Kesar Enterprises Ltd., by certificate of incorporation on change of name dated 29.9.1984. The Kesar Enterprises Limited thereafter got engaged in the business of bulk liquid storage terminals at the Port of Kandla dealing in the storage of petroleum and other chemicals on behalf of the public and private sector units and also of traders. He further submitted that by a scheme of arrangement under Sections 391 to 394 of the Companies Act, 1956 for demerger of the storage undertaking known as "Distillers Trading Corporation (DTC), a division of Kesar Enterprises Ltd. (KEL) as going concern into Kesar Terminals & Infrastructure Ltd. (KTIL), the resulting company" came to be proposed before the High Court of Bombay, which scheme was sanctioned ....
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....ithout any demur or objection. According to him, even the amount of Rs. 2,50,00,000/- paid by the petitioner under the order of this Court was adjusted against the outstanding amount of Lanxess ABS Limited, which is reflected in the notice dated 3.12.2016. Only the nomenclature of the company was changed, for which the permission of the respondent KPT was not required to be taken. Hence, change of name alone cannot be presumed to be a transfer and the petitioner company cannot be said to be an unauthorised occupant as sought to be submitted by the learned Advocate for the respondent KPT. FINDINGS ON PRELIMINARY OBJECTIONS:- 9. So far as the preliminary objection raised by the learned Sr. Advocate Mr. Mihir Joshi for the respondent KPT as regards the locus standi of the petitioners M/s. IMC Limited, M/s. JRE Tank Terminals, M/s. Kesar Terminals, M/s. Mother Dairy and M/s. INEOS Styrolution India Ltd., is concerned, it would be apt to mention that the Supreme Court in case of Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed and Ors., (supra) after elaborately discussing the English decisions on "who could be said to be an aggrieved person to invoke the writ jurisdicti....
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....he relief prayed for must be one to enforce a legal right. In fact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same. 10. A "legal right", means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, "person aggrieved" does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must therefore, necessarily be one, whose right or interest has been adversely affected or jeopardized." 11. From the afore-stated legal position, it is clear that there must be a judicially enforceable right available to the petitioner for the enforcement, on the basis of which writ jurisdiction is resorted to. The relief prayed must be one to enforce a legal right. Such legal right must be existing in favour of the petitioner, which has been adversely affected or jeopardized, before invoking the extraordinary writ ....
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.... CIT Haryana AIR 1991 SC 70 (para 6), it has been held that there can be no doubt that when two companies amalgamate and merge into one, the Transferor Company loses its identity as it ceases to have its business. However, their respective rights or liabilities are determined under the scheme of amalgamation, but the corporate identity of the Transferor Company ceases to exist with effect from the date the amalgamation is made effective. Therefore, in view of the settled legal position, the original lessee, namely, the American Company ceased to exist with effect from the Appointed Day i.e. 1.1.1982 and thereafter the Indian Company came in possession and is in occupation of the premises in dispute. 9 and 10..... 11. These cases clearly hold that even if there is an order of a Court sanctioning the scheme of amalgamation under Sections 391 and 394 of the Companies Act whereunder the leases, rights of tenancy or occupancy of the Transferor Company get vested in and become the property of the Transferee Company, it would make no difference in so far as the applicability of Section 14(1)(b) is concerned, as the Act does not make any exception in favour of a lessee wh....
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.... afore-stated cases, on the amalgamation by virtue of the amalgamation order, the amalgamated company ceases to exist in the eye of law, and it effaces itself for all practical purposes. Such transactions of amalgamation are voluntary transactions and could not be said to be involuntary transactions even though they come in to effect by virtue of orders of the Court. 15. In case of the petitioner M/s. JRE Tank Terminals also, Mr. Soparkar had sought to submit that the earlier partnership firm known as M/s. JR enterprises having been registered as the company under Part-IX of the Companies Act, the erstwhile partnership firm had stepped into the shoes of the company and the assets and liabilities of the erstwhile firm had vested in the newly incorporated company by virtue of Section 575 of the Companies Act. According to him, such vesting being statutory could not be termed as "transfer". In this regard, Mr. Soparkar has relied upon the judgment of the High Court of Andhra Pradesh in case of Vali Pattabhirama Rao (supra). In the opinion of the Court, even if it is accepted that the original partnership firm was converted into a private limited company i.e. the petitioner company ....
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....f which two were originally allotted to the USTTL and one plot was allotted to M/s. Indian Mollasis Company itself. Out of these three plots KPT had issued LOA in favour of USTTL in respect of one plot (subject matter of SCA No. 2535 of 2017) for a period of 30 years from 1995 to 2025. In respect of other two plots lease deeds were executed for thirty years from 1986 to 2016 (SCA 2536 of 2017) and from 1978 to 2008 (SCA No. 2538 of 2017). In case of JRE Tank (SCA No. 2537 of 2017), the lease deed was executed in favour of M/s. JR Enterprise, a partnership firm, for a period of 30 years from 1986 to 2016. In case of Kesar Terminals (SCA Nos. 10730 of 2016, 11497 of 2015, 10891 of 2016, and 10892 of 2016), out of four parcels of lands, KPT had issued LOA on temporary leave and licence basis in respect of three parcels of land in favour of original allottee Kesar Enterprises Limited, the term of which has already expired in 2006; and one lease deed was executed in favour of said original allottee Kesar Enterprises for a period of 30 years from 1978 to 2008. The Scheme for arrangement under Section 391 and 394 of the Companies Act for demerger was approved by the Bombay High Court on 1....
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....he foundation and precondition for maintaining the petition under Article 226 of the Constitution of India. The legal right that can be enforced must ordinarily be the right of the writ petitioner himself, who complains infraction of such right, as held by Supreme Court in case of Ayaaubkhan Noorkhan Pathan Vs. State of Maharashtra and Ors. (supra). The concerned petitioners being in unauthorized occupation of the plots in question, and their legal rights having not been recognized by the respondent KPT, they could not be said to be the persons, who have suffered any legal injury or the "persons aggrieved" to file the writ petition under Article 226 of the Constitution of India. 21. At this juncture, it would be apposite to mention that the Court has made the aforesaid observations only for limited purpose of examining the locus of the petitioners against whom the preliminary objections for maintaining the petitions at their instance, were raised by the respondent KPT, and has not gone into the issue of their liability to pay the transfer fees. The Court is required to make this clarification as the predecessor of the petitioner IMC Limited i.e. the USTTL, the original allottee ....
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....d not be said to have any locus standi to invoke the writ jurisdiction under Article 226 of the Constitution of India. Of course, the Court had permitted the concerned Advocates appearing for these petitioners to make their submissions on merits, in view of the fact that the Court was simultaneously hearing the other petitions involving similar issues as raised by the said petitioners. COMMON SUBMISSIONS IN ALL THE PETITIONS: 23. Learned Sr. Advocate Mr. Soparkar having led the group has made following common submissions, which are applicable to the facts of almost all the petitions, and which have also been adopted by all the learned Advocates appearing for the respective petitioners. (i) There was no delay on the part of the petitioners in challenging the action of the KPT and the Notifications issued by the Temp, on the contrary the demands raised by the KPT were hopelessly time barred. Even otherwise, the provisions of Limitation Act do not apply to the writ proceedings as held by the Supreme Court in case of Smt. Sudama Devi Vs. Commissioner & Ors., reported in (1983) 2 SCC 1 and in case of M.R. Gupta Vs. Union of India, reported in (1995) 5 SCC 628. (i....
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....9;s response to the TAMP's queries were misleading, evasive and inaccurate, and the TAMP also had taken into consideration irrelevant factors in determining the rates, without taking into consideration the specific representations made by the petitioners/association representing Liquid Tank Terminals. (viii) After the rejection of KPT's proposal for revision of rates by the TAMP during the period of natural disasters, the KPT had consciously chosen not to take any action till 2010, and therefore, lease rentals for the past years would be hit by the law of limitation and the KPT would also be estopped from claiming such amounts. (ix) The TAMP's order/notification of 2011 was initially valid only till December 2013 and thereafter was extended till June 2014 as the proposal for revising the lease rentals was not ready. However, the order passed by the TAMP on 13.11.2014 was sought to be retrospectively applied from January 1, 2014, instead of giving effect from July 1, 2014. (x) The TAMP had abdicated its function as an adjudicator by accepting all the submissions made by the KPT with respect to retrospectivity in the impugned orders/notification....
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....facie perverse and based on surmises. There was no independent verification carried out to corroborate the information given to the valuers. (xvi) The TAMP in 2011 order should not have accepted the calculations made by the KPT erroneously relying upon 2005 tender, because the payment model under 2005 tender was changed from 'premium-cum-lease rent' structure followed earlier to a 'single lump sum consideration' in the form of a higher premium and token Re. 1 lease structure. (xvii) Clause 7 of the General Lease Deed provides that the KPT could revise the ground rent, as fixed under the lease deed, every ten years, however, not exceeding double the original ground rent for the second ten years, and after 20 years, not exceeding thrice the ground rent. The lease rentals sought to be imposed now are in violation of the said clause of the lease deed. (xviii) The KPT's actions fall foul of the test of reasonableness laid down by the Supreme Court in case of Dwarkadas Marfatia Vs. Board of Trustees of the Port of Bombay, reported in (1989) 3 SCC 293 and in case of Jamshed Hormusji Wadia Vs. Board of Trustees, Port of Mumbai, reported in (20....
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....ly on the basis of re-categorization. (xxiii) Once the TAMP having come to the conclusion that the guidelines did not permit/provide for re-categorization of the lands on the basis of use, it ought to have rejected KPT's proposal to re-categorize the lands. The re-categorization was not based on any intelligible differentia as the KPT and TAMP both have failed to justify such re-categorization on the basis of use. The submission made on behalf of the KPT that a new entrant would be required to match the rent paid by the petitioners, and therefore, the scale of rent was increased, should not be accepted as the contracts with new entrants would be fresh contracts regulated by the statute and the policy directions issued by the Government from time to time. The petitioners cannot be equated with the fresh lessees during the subsistence of their lease. (xxiv) The judgments cited by the learned Sr. Advocate Mr. Joshi for the KPT on various issues have been distinguished by the learned Advocates appearing for the petitioners. The same shall be dealt with herein under at appropriate stages. PETITION-WISE SUBMISSIONS: 24. The respective learned Advocates appeari....
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.... concerned, it has been submitted by the learned Sr. Advocate Mr. Soparkar that despite several letters written by the petitioner informing the KPT about the amalgamation order passed by the High Court, and requesting it to change the name from 'Dhara' to that of the petitioner, the respondent KPT did not reply, however, during the pendency of the petition, for the first time on 9.11.2015 the KPT informed the petitioner that the application for change of name was not considered. Thereafter on 27th June 2017, the KPT approved the change of name, but demanded transfer fees at six times the rates revised by the TAMP order dated 25.3.2011. The transfer fees claimed in the said letter was arbitrary. It has also been contended that the decision to re-categorize the petitioner Mother Dairy from category A to G-1 was also arbitrary and without any authority. No notice prior to change of category was given to the petitioner and no reasons were given as to why the category of the petitioner was changed. (iv) So far as SCA Nos. 673 of 2014 and 2607 of 2012 filed by the Indian Farmers Fertilizers Cooperative Society Ltd. (IFFCO) are concerned, it has been submitted by Mr. Sopa....
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....t authorities have increased the lease rates dehors Clause 7 of the Lease Agreement. Lastly it is submitted that the petitioner has been wrongly categorized as under Category B-1, instead of Category B-2, inasmuch as Category B-1 covers lands having water front, whereas the subject land granted to the petitioner does not have any water front at all. (viii) So far as Special Civil Application No. 11497 of 2015 filed by M/s. Kesar Terminals and Infrastructure Ltd. is concerned, it has been submitted by the learned Sr. Advocate Mr. B.B. Naik that the contracts (leases) entered into between the KPT and the petitioner (its predecessor) in respect of the parcels of lands in question are binding to both the parties and the KPT is not entitled to increase the rent amount and demand more than what is provided in the lease agreement. The KPT had entered into separate, independent lease agreements out of which the lease in respect of 6877.97 sq. mtrs. of the land executed on 26.8.1986 for a period of 30 years with effect from 3.7.1978 had expired on 2.7.2008 and the application for its renewal is pending with the KPT. The said lease deed provided that the lease rent fixed at Rs. 2.88....
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....so would apply in the present cases. (xi) Learned Sr. Advocate Mr. Shalin Mehta appearing with the learned Advocate Mr. Premal Rachh for the petitioner M/s. Kesar Terminals & Infrastructure Ltd., in Special Civil Application Nos. 10730, 10891 and 10892 of 2016 submitted that the petitioner was allotted parcels of lands on leave and licence basis, which having expired, the KPT has issued notices under the Public Premises Act, which are under challenge. Though the petitioner had applied for renewal of the leave and licence agreement, there was no reply to the said letters and on the contrary, the KPT has issued compensatory bills, demanding astronomical amount. The petitioner had also tried to pay some of the bills, however, the same was not accepted by the KPT on the ground that the name of the petitioner Company was different. He further submitted that the original allottee having been amalgamated with the petitioner Company by virtue of the order passed by the Bombay High Court, the KPT should have accepted the amount of compensatory bills offered by the petitioner Company. He further submitted that the impugned notices issued under Section 4 of the Public Premises Act do....
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....is raising compensation bills by charging illegal and exorbitant rent charges. (xiv) Mr. Thakore further submitted that the rate of ground rent at the time of expiry of lease in 2008 was Rs. 5.40 per sq. mtrs., per annum. After the expiry of the lease agreement the KPT unilaterally fixed the ground rent at Rs. 119.50 per sq. mtrs., per annum up to 2014, which was absolutely illegal and arbitrary. Though the subject plot allotted to the petitioner AVEAN falls under the Category D-2, the KPT has wrongly classified it under the Category A for the period from 1999 onwards, and under Category G-1 from 2014 onwards. (xv) So far as SCA No. 10306 of 2015 filed by M/s. Tanker Owner and Operations Association is concerned, learned Sr. Advocate Mr. Mihir Thakore appearing with Ms. Archana Acharya submitted that the petitioner had already made application for renewal of lease on 9.5.2011 i.e. one year prior to the expiry of its lease, and thereafter the petitioner had also sent reminder for renewal of lease on 20.11.2012, however, the respondent KPT had informed the petitioner vide the letter dated 15.12.2012 that the petitioner had not made application for renewal of lease o....
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....Supreme Court in case of Hukam Chand etc. Vs. Union of India and Ors., reported in AIR 1972 SC 2427, in case of Vice Chancellor, M.D. University Rohtak Vs. Jahan Singh, reported in 2007(5) SCC 77, in case of Mahabir Vegetable Oils (P) Ltd. and Anr. Vs. State of Haryana and Ors., reported in (2006) 3 SCC 620 and others in support of his submissions. The action taken by the KPT under the Public Premises Act is also arbitrary and illegal. (xviii) Learned Advocate Ms. Meenu Shah appearing for the petitioner HPCL in SCA No. 16530 of 2013 and SCA No. 6909 of 2018 submitted that there were five parcels of lands allotted to the petitioner, however, one plot has already been surrendered on 30th October, 2015 to the KPT, the leases of two plots are due to expire in 2020 and the leases of remaining two plots have expired on 1.12.2013 and 1.8.2014 respectively. The petitioner has already paid all the dues up to 2013 as per the TAMP order under protest, however, she submitted that the TAMP could not have given effect of the impugned order with respective effect. In this regard, she has relied upon the decision of the Supreme Court in case of Vice-Chancellor, M.D. University, Rohtak, re....
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.... in (2014) 2 SCC 657. (ii) The lease of the lands necessarily had to be by a contract as contemplated under Section 34 of the said Act. Though each contract would contain clauses for lease rent, its rates, revisions etc., the lease rent and its revisions were the issues of policies and the directions issued from time to time by the Central Government to ensure consistency, equality, and a level playing field for the lessees. (iii) The determination of lease rent was being made by the Central government till 1979, thereafter by the Board of Trustees with the approval of the Central Government up to 1997, and thereafter by the TAMP as per the provisions contained in the said Act. (iii) The first expression of policy was by the Notification of 1994, whereunder rents were revised on the basis of category of lands, which were to remain operative for a period of five years. Thereafter, the policy directions were issued under Section 111 of the said Act by the Central Government vide the Land Policy for Major Ports 2004, Policy of 2010 and Policy of 2015, which stipulated that the lease rents would be 6% of the market value of the land as revised every five year....
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....PT. The delay by some officers of the KPT may warrant disciplinary action against them but that would not discharge the lessees/petitioners from the obligations to the State. (vii) Justifying the delay, it has been submitted that the process of revision of rents had started in 1999 well before the expiry of five-year period under the 1994 Notification, however, because of the direction of the TAMP to reclassify the lands as per the use in 1999, and thereafter earthquake having taken place in 2001, revised policy of the Government to shift the allotment of lands and fixation of lease rents on upfront premium basis in accordance with auction rates in 2000-2002 etc., and the auction having taken place finally in the year 2005 on the basis of the market value, delay in obtaining environmental clearances culminated into some delay as observed by the TAMP in its order. A decision was taken by the KPT on 9.2.2010 to cancel the letters of Intent and call for fresh bids in view of the increase in the market value of the lands, which was challenged by the Letters of Intent holders, including the petitioner IMC and the same was rejected up to the Supreme Court. Thereafter, the propos....
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.... 2004 and 2009, which has been proposed by the KPT and accepted after consultation with all stakeholders, by the TAMP. (xii) The valuation report of 2014 was the basis of proposal of the KPT forwarded on 26.6.2014, after seeking extension from TAMP, since the last five year period for which the rates were approved was from 1.1.2009 to 31.12.2013. The valuation proposed by the valuer was modified in certain categories of lands by the Port Trust on the basis of the recommendations of the expert committee appointed by it and the basis and justification of the market value is set out in the TAMP order dated 13.11.2014. (xiii) The port lands are national resources and wealth by their unique location and limited availability. It would amount to granting special privilege to the lease holders at the cost of public interest, if the KPT was compelled to accept the low rents fixed in 1994 till 2011. The petitioners had failed to demonstrate as to how the fixation of rents on the basis of 6% of the market value was unreasonable or unfair. (xiv) The valuation of the land is also based on the use of the land. The rent could not be decided only on the basis of location....
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....ding on the existing lessees/allottees. In this regard, Mr. Joshi has placed reliance on the decision of the Supreme Court in case of D.K. Trivedi & Sons and Ors. Vs. State of Gujarat and Ors., reported in 1986 (Supp) SCC 20 and in case of APM Terminals B.V. Vs. Union of India and Anr., reported in (2011) 6 SCC 756. (xix) As regards renewals of leases, it has been submitted that as per the land policy for Major Ports, the renewals of leases are governed by the relevant clauses of the policy relating to lands within customs bonded area and lands falling outside such area. The renewals are not as a matter of right. The primary requirement for considering the request for renewals is the existence of a valid lease and that the lessee should not be in default. Since the basic parameters have not been satisfied, the petitioners cannot seek extension of the lease. (xx) Mr. Joshi has highlighted the issues of delay, conduct of the petitioners, etc., petition-wise to submit that the petitions deserve to be dismissed. Mr. Joshi has also distinguished the judgments relied upon by the learned Advocates for the petitioners. STATUTORY PROVISIONS:- 26. Before adverting to ....
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....imits of the port or the port approaches may be used for the purposes specified hereunder:- (a) approaching or lying at or alongside any buoy, mooring, wharf, quay, pier, dock, land, building or place as aforesaid by vessels; (b) entering upon or plying for hire at or on any wharf, quay, pier, dock, land, building, road, bridge or place as aforesaid by animals or vehicles carrying passengers or goods; (c) leasing of land or sheds by owners of goods imported or intended for export or by steamer agents; (d) any other use of any land, building, works, vessels or appliances belonging to or provided by the Board. (2) Different scales and conditions may be framed for different classes of goods and vessels. (3) Notwithstanding anything contained in sub-section (1), the Board may, by auction or by inviting tenders, lease any land or shed belonging to it or in its possession or occupation at a rate higher than that provided under sub-section (1)." 28. Section 111 empowers the Central Government to issue directions to the Board of Trustees, the same reads as under:- "111. Power of Central Government to issue directions to Boar....
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....vision of land use plan shall be published on the web-site of the Port Trust inviting objections and suggestions and shall be finalized by the Board after considering the objections and suggestions received. II - Clause regarding Land Use Plan under 2014 Policy: 8. Land Use Plan: The Land Policy Guidelines are applicable for all purposes under MPT Act 1963. Every Major Port shall have a Land use plan covering all the land owned and/or managed by the Port. Such plans shall be approved by the Board and a copy would be forwarded to the Government. Any proposal for revision of land use plan shall be finalized by the Board only after considering the objections and suggestions received from the various stakeholders. Land use plan of major ports shall be reviewed by the Board at least once in every five years. III - Renewal clause under the Policy of 2010: "6.1.2 Renewal of existing leases: The following procedure will be adopted for renewal of leases of land inside the custom bound area. Such leases may have been given by some ports much before the guidelines issued in 2004 came into force. The said guidelines prohibit the allotment o....
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.... previous lessee. The bidding and auction would be only on the reserve price of the land. With a view to dissuade non-serious bids, EMD for a valid bid should be fixed at 10% of the latest SoR of the land being put on tender. If the only bidder is the existing lessee, the annual lease rental would be determined on the basis of the latest SoR notified as per Para 13(c) or the price quoted by the existing lessee in the tender-cum-auction, whichever is higher. The provision of first right will also apply to expired lease (possession has been taken by the Port) also in addition to existing leases. (d) In respect of lease agreements with renewal option, the lease can be renewed by the Port Trust Board by treating it as a fresh lease at the latest SoR notified as per para 13(c). (e) No renewal clause is to be provided in the lease-agreements entered into after coming into effect of these guidelines. (f) Any renewal of lease to the original party over and above the existing period is to be approved by the Board, provided that the cumulative lease period does not exceed 30 years. (g) Any extension beyond 30 years and for a maximum period of 99 years has ....
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....ewed by the Board on a case to case basis from the point of view of the reasonability of such terms of renewal, including the rates. In such cases, the endeavour should be to migrate to lease rentals based on latest market value." V - Determination of Market Value under 2010 Policy: "6.3(1) Market value of land and Schedule of Rates (SoR): (a) SoR for land, will be recommended to the competent authority/TAMP, by a Committee as decided by the Board headed by the Chairman of the Port Trust. The Committee may take into account the applicable factors from among those listed below to determine the market value of port land:- (i) State Government's ready reckoner of the land values in the area, if available. (ii) Average rate of actual relevant transactions registered in last three years in the port's vicinity, adding 2% escalation per annum and in case of Mumbai Port Trust @ 4% escalation per annum, as may be necessary. (iii) Highest accepted tender of Port land for similar transactions. (iv) Rate arrived at by an approved valuer appointed for the purpose by the Port. (v) Any other relevant factor as may be ....
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....ended by the Port Trust. (c) The Port Trust would make a proposal as outlined in para 13(a) to TAMP for fixing the latest SoR of the land. The TAMP would notify the latest SoR of the land after following due process of consultation with stake holders within 45 days of receipt of the proposal. The Port Trust Board will fix a rate of annual escalation which would not be less than 2%. SoR would be refixed once in every 5 years by TAMP." 30. The crux of the challenges made in all the petitions is the order of 2011 and order of 2014, passed by the TAMP in exercise of the powers conferred under Section 49 of the said Act, in the light of the Land Policies as applicable at the relevant time issued by the Ministry of Shipping, Government of India, under Section 111 of the said Act. Some of the petitioners have challenged the TAMP order of 2011, some have challenged the TAMP order of 2014, and some have challenged both the orders. Some of the petitioners have incidentally challenged the Land Policy of 2010 and the Land Policy of 2014, and have also challenged the demand notices and the compensatory bills issued by the respondent KPT alleging unauthorized occupation of the concer....
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....h and development of the Major Ports for their contribution to the Indian economy, and to promote the business with the Port Trusts, the Land Policy for the Major Port of 2010 was issued by the Government of India, after considering the report submitted by the Committee specially constituted to review a host of policies including the Land Policy issued in 2004, and after deliberating upon the said report, the Ministry of Shipping had put up the draft line policy on the website of Ministry inviting comments and suggestions. After considering large number of responses received by the Ministry said Policy of 2010 was issued to all the Port Trusts for the implementation. Similarly, the policy guidelines for land management by Major Ports of 2014 was issued by the Ministry of Shipping after considering the comments and suggestions of various stakeholders and also after undergoing the inter ministerial consultations. Initially the said guidelines were approved by the Union Cabinet on 2.1.2014 and were issued to all Major Ports for implementation, however, the Indian Ports Association, an Apex Body for Major Ports having highlighted certain difficulties and suggested some changes, the Min....
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.... of India and Anr., reported in (2011) 6 SCC 756 and others. In that view of the matter, the Court is of the opinion that there being no element of arbitrariness involved and there being no legal infirmity in the policies in question, the prayer of the concerned petitioners to declare the said policies as arbitrary or bad in law, deserve to be rejected. Re: Challenge to TAMP Orders of 2011 and 2014; 34. So far as the TAMP order of 2011 is concerned, it appears that the KPT vide the letter dated 19.4.2010 had submitted its proposal for revision of the rate structure for its Kandla Land along with the valuation report prepared by an approved Land Valuer. Till then, the rates for Kandla Land of KPT as approved by the Government of India in July 1994 under six categories were prevailing. As transpiring from the said order of 2011, it was stated inter alia in the proposal dated 19.4.2010 that a Committee was constituted for fixing the market value of the land and schedule of rates as per Clause 5.3(1) of the Land Policy Guidelines 2004 issued by the Government of India. The said Committee was headed by the Chairman, KPT and other members were the Deputy Chairman, Chief Engineer, F....
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.... Sr. No. Description of category Lease Rentals per sq. mtr., per annum as on July 1999 (Rs.) Lease Rentals per sq. mtr., per annum as on 1.1.2004 (Rs.) Lease Rentals per sq. mtr., per annum as on 1.1.2009 (Rs.) A Land having water front and upto half mile from the shore i.e. the west bank of Kandla creek 41.40 53.40 110.40 B Land within half mile from the bank of the creek and having no water front B1 Plots abutting on main road 33.60 43.20 89.40 B2 Plots situated on internal roads 30.00 39.00 80.40 C Land beyond half a mile from the bank of the creek C1 Plots abutting on main road 30.00 39.00 80.40 C2 Other plots 24.60 31.20 64.80 D Land outside the bunder area and outside the west gate both on north as well as on the south of National Highway D1 Plots directly abutting on NH8A 37.80 48.60 100.20 D2 Plots abutting on 1st 30 meter road parallel to NH8A 33.60 43.20 89.40 D3 Plots abutting on 2nd 30 meter road parallel to NH8A 32.40 41.40 85.20 ....
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....ch were furnished by the KPT. The said queries and remarks of KPT have been made part of the order by the TAMP. It also appears that a joint hearing was held on 4.8.2014 at the KPT premises where the KPT had made power-point presentation of its proposal and thereafter the KPT of the concerned user had made their submissions. The KPT thereafter was requested to furnish comments on the written statements made by BPCL, HPCL, GCCI, IFFCO, and KPKS. The KPT also subsequently requested to furnish comments received from Kandla Liquid Tank Terminal Association vide its letter dated 3.9.2014, which was responded by the KPT vide its letter dated 12.9.2014. The TAMP considering the totality of information/material collected during the hearing of the case, passed a detailed order on 4.12.2014 approving the schedule of market value of the land and Reserve price in terms of the lease rents for lease of Kandla lands belonging to KPT as per the Annexure-II annexed to the said order. The TAMP approved the schedule of rate structure making it effective from 1.1.2014 to 31.12.2018. The said Schedule of rates in Tabular Form is reproduced as under:- Schedule of Market Value of land and reserv....
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....n the ground that the KPT could not have proposed the categorization/re-categorization of the lands on the basis of use, and the TAMP should not have accepted the same in toto for the purpose of fixing the scale of rates under Section 49 of the said Act. The challenge is also made to the said orders of TAMP on the ground that the TAMP had accepted the proposal of KPT to give retrospective effect to the SoR without any application of mind, inasmuch as the SoR fixed in the order dated 25.3.2011 have been made applicable w.e.f. January 1997 and the SoR fixed in the order dated 13.11.2014 have been made applicable w.e.f. January 2014. Re: Categorization;- 38. Now, Chapter-VA was inserted by the Amendment Act of 1997 in the said Act for constitution and incorporation of Tariff authority for major ports. Prior thereto, the scale of rates and statement of conditions for use of the properties belonging to the Board were being determined by the Board itself, with the prior sanction of the Central Government as required under Section 52 of the said Act. After the Amendment Act 15 of 1997 the Tariff authority has been constituted under Section 47A of the said Act. The said authority com....
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....y of 2010 provided that SoR should vary in accordance with the end use as reflected in the land use plan. Sub-clause (f) of the said Clause further provided that insofar as fixing of SoR for port land is concerned, the TAMP shall have the jurisdiction for any land both within the customs bound area and outside it as long as the land is used exclusively for Port related activity. The SoR for all the land of Major Ports will be fixed by TAMP. 40. Thus, it is absolutely clear that the SoR could vary in accordance with the purpose of land use and that the same has to be in accordance with the end use as reflected in the land use plan. Ergo, the Court does not find any substance in the submissions made by the learned Advocates for the petitioners that the KPT had no authority to categorize the lands while proposing scale of rates to the TAMP and the TAMP also could not have approved such categorization made on the basis of use of land or the purpose for which the lands were to be used. As such, the petitioner IMC Limited in SCA No. 2535 of 2017 has stated that the TAMP having directed the KPT to classify the land taking into account the distance from the creek and the purpose for whi....
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....y G, proposed in the current proposal as against a single category G in the land Order, the KPT has sought to clarify that the rates are to be fixed considering purpose also. So, all lessees, who have been allotted the land for "Liquid Tanks" have been categorized under G-1 & G-2 categories irrespective of distance. The KPT has reported that CI category has now been shifted as G-2 from 1.1.2014 as per the valuation report submitted by the approved valuer appointed for valuation of Kandla Land rates for tanks terminals This categorization has also been recommended by the LVC and has also been approved by the KPT Board." 42. The only contention raised by the learned Advocates for the petitioners in this regard was that though the land policy of 2010 specifically pertained to the direction to fix the SoR in accordance with the purpose of land use, later Policy of 2014 omitted the said direction in Clause 13 thereof. 43. Though, prima facie some substance may be found in the said submission made by the learned Advocates for the petitioners, on close reading of 2014 Policy, it transpires that the said policy of 2014 has not adopted the same language as used in 2010 Policy, but has....
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....ted bid of the land for the purpose of making proposal to the TAMP. According to them, even under the Policy of 2014, the use of the land being not relevant factor, the only factor which could have been accepted was the highest accepted tender amount, and in absence of such highest accepted tender amount, the proposal of KPT could not have been accepted by the TAMP for determining the market value and in turn the SoR. 45. Apropos the said submissions, the question that falls for consideration before the Court is whether the judicial review in the matter of fixation of scale of rates by the TAMP, based on the proposals made by the KPT after considering the statutory guidelines issued by the Government of India, is permissible while exercising the writ jurisdiction under Article 226 of the Constitution of India? 46. The Supreme Court in case of Association of Industrial Electricity Users Vs. State of Andhra Pradesh & Ors., reported in AIR 2002 SC 1361, while considering the issue as to whether the judicial review in the matter of fixation of tariff by the Regulatory Commission constituted under the Andhra Pradesh Electricity Reforms Act, was permissible, had held that- ....
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.... it was governed by statutory provisions. The scope of judicial scrutiny would be far less where the price fixation is not governed by the statute or a statutory order. Where the legislature has prescribed the factors which should be taken into consideration and which should guide the determination of price, the courts would examine whether the considerations for fixing the price mentioned in the statute or the statutory order have been kept in mind while fixing the price and whether these factors have guided the determination. The courts would not go beyond that point. In the present appeals, there is no law, or any statutory provision laying down the criteria or the principles which must be followed, or which must guide the determination of rates of royalty. No doubt, any arbitrary action taken by the State would be subject to the scrutiny by the courts because arbitrariness is the very antithesis of rule of law. But this does not mean that this Court would act as an appellate authority over the determination of rates of royalty by the government." 50. Following the afore-stated judgment, the Supreme Court in case of Union of India and Ors. Vs. Cipla Limited and Anr., reported....
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....rate arrived at by an approved valuer appointed for the purpose by the port. It was stated therein that the scale of rates shall be arrived at, taking 6% of the market value as the rent per annum. It also provided that the SoR should vary in accordance with the purpose of land use. In the light of the said provisions contained in the Policy of 2010, if the proposal made by the KPT in its letter dated 19.4.2010, as referred by the TAMP in its order dated 25.3.2011, is appreciated, it transpires that the Committee was constituted by the KPT for fixing the market value of the land and schedule of rates as per the Land Policy Guidelines issued by the Government of India. The said Committee was headed by the Chairman and comprised of the other members, who were the Deputy Chairman, Chief Engineer, FA and CAO and the Secretary of Port and the Deputy Collector. The approved Land Valuer was also appointed for assessing the market value of the land estate and considering the land valuer's report submitted in January, 2010, the said Committee had accepted the market value of the land as assessed by the approved valuer. The Committee accordingly had recommended sector-wise/sub-sector-wise....
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....cy guidelines do not mandate a specific preference to any particular method out of the methods prescribed in the respective clauses for determination of the market value and the SoR. Hence, the KPT was absolutely justified in relying upon the rates arrived at by the approved valuers on both the occasions. As stated in the TAMP order of 2011, the approved valuer had after considering the basic rates had derived the market rates for the entire parcels of Kandla land. The valuer had applied on the basic rate, a generalized index derived by giving certain weightages for factors like real estate market behavior in Gujarat, number of Industrial units established in Kutch district, population growth, traffic handled by Kandla Port, GDP growth of Gujarat and of India etc. The determination of market value is not only difficult but a very tricky matter, and the opinion of expert i.e. the approved valuer is very important. It is also pertinent to note that the petitioners and their representatives were also given sufficient opportunity of hearing by the TAMP during the consultative process and the joint hearing. 55. AT this juncture, it is pertinent to note that the petitioners have not p....
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....tate, must be informed by reason and the actions uninformed by reason may be questioned as arbitrary in the proceedings under Article 226 of the Constitution of India. However, it has been further observed in the said judgment that there is always a presumption that a governmental action is reasonable and in public interest. It is for the party challenging its validity to show that the action is unreasonable, arbitrary or contrary to the professed norms or not informed by reasons, and the burden is a heavy one. It may be noted that in the said case, the Supreme Court was examining the frontiers of judicial review of the action of a statutory authority i.e. the Board of Trustees of the Port of Bombay in evicting its tenant and granting the land in question to another tenant. In this regard a very pertinent observations with regard to the scope of judicial review have been made in paragraph 31, which are reproduced as under:- "31. ... In that view of the matter even under the scope of judicial review, it was contended, whether it should have been given on joint-tenancies or not, is not a matter which could be gone into by the Court. Reliance was placed on the observations of....
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.... the rent higher than what was agreed between them. As held by Supreme Court in case of NSSO Vs. Champa Properties Limited, reported in (2009) 14 SCC 451, where the contract prescribes a rent for the period of lease, the same being agreed rent, it is binding on the parties. If the lease provides for revision of rents periodically and specifies the method and manner of revision, such revised rent would also be the agreed rent. It has been further observed therein that where a statute governing tenancies and/or rents provides for fixation of rent or increases in rent, and such statute is applicable to the tenancy in question, then the rent will have to be determined in accordance with the statutory provisions. 58. In the instant cases also, the lease agreements have been executed by the KPT pursuant to powers available under Section 34 of the said Act. The lease deeds specifically provided for the periodical revision of rent. The Land Policies of 2010 and 2014 applicable to the instant cases provided for the fixation of scale of rates for lease once in five years. The manner, method and liability to pay the revised lease rentals having already been prescribed, it does not lie in t....
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....e periodicity i.e. every five years was already fixed and imposed, and the only component remaining was the determination of market value and the scale of rates by the TAMP after considering the views of stake holders. Therefore, according to him, the obligation to pay at the revised rates every five years, and not to pay as and when quantified at varying period of time, was already existing. In any case, he submitted that quantification of liability subsequent to its imposition cannot be said to be retrospective imposition as contended by the petitioners. Relying upon the affidavit-in-reply filed by the KPT, he submitted that though some delay had occasioned at the instance of KPT in forwarding the proposal to the TAMP, the said delay was for justifiable reasons, inasmuch as on the constitution of TAMP in the year 1997, the KPT had resolved to recommend revision of rates and the same was forwarded to the TAMP in 1997, however, the same was returned by the TAMP vide its order dated 2.2.1999, requiring the Board to reclassify the lands taking into consideration the purpose for which it was allotted. Thereafter by report dated 16.6.1999 the Land Committee of the KPT had recommended r....
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....of revision. In other cases, where the lease deeds were executed like in case of SCA No. 2538 of 2017 filed by IMC, the Clause 7 of the lease deed executed by the KPT in favour of M/s. Indian Molasses Company, stipulated that the ground rent at the option of the lessor, be revised and refixed at the end of every ten years, subject to the condition that the ground rent so refixed at the end of first ten years shall not exceed the double the original rent and the ground rent so refixed at the end of second ten years shall not exceed thrice the rent originally fixed. 62. At this juncture, it is required to be noted that Sub-clause (d) of Clause 6.3.(1) of 2010 Land Policy and Sub-clause (c) of Clause 13 of the Land Policy of 2014 issued under Section 111 of the said Act, provided that the scale of rates would be revised every five years by the TAMP. Thus, having regard to the terms and conditions contained in the letter of allotment and the lease deed on one hand and to the Section 49 of the Act and the provisions contained in the Land Policies of 2010 and 2014 on the other hand, it emerges that SoR could be framed or revised once in five years by the TAMP. The question is, could t....
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....oposition of law that when the statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention of the same. In other words where a statute requires to do a certain thing in a certain way, the thing must be done in that way and not contrary to it at all. Other methods or mode of performance are impliedly and necessarily forbidden. The said settled legal proposition is based on a legal maxim expressio unis est exclusio alterius, meaning thereby, if a statute provided a thing to be done in a particular way, then it is to be done in that manner and in no other manner. 66. Applying the aforesaid legal position to the facts of the present cases, it clearly transpires that neither the MPT Act, nor the Land Policies issued under Section 111 of the said Act permitted the TAMP to frame the scale of rates with retrospective effect. The only leverage perpetuated under the said policies was to frame SoR once in five years. The TAMP accordingly at the best could have framed the scale of rates once in five years keeping in view the statutory guidelines, however, could not have approved the proposal of KPT to give effect of the s....
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....Kusheshwar Prasad Singh Vs. State of Bihar and Ors., reported in (2007) 11 SCC 447, has held that man cannot be permitted to take undue and unfair advantage of his own wrong to be favourable in the interpretation of law. He who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. Hence, if the KPT had failed to make proposal on time as required under the lease deed or under the Land Policies, which the KPT was expected to make once in five years, the KPT could not have made proposal in the year 2010 for revising the rate structure with effect from July 1999 and the TAMP also could not have revised the same with retrospective effect. As the TAMP could have revised the SoR once in five years as per the land policies, it should have revised the same only for the last slab of five years from 1.1.2009 to 31.12.2013, but in no case could have given effect prior to 1.1.2009, much less from July 1999. When the TAMP was not vested with the power either under the Act or under the guidelines/policies issued under Section 111 of the Act, to frame the SoR with retrospective effect, the TAMP's order of 2011 ex facie suffers from illegality to the....
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....6 of 2015, the petitioner Avean in SCA No. 2905 of 2015, the petitioner Laxmi Motors in SCA No. 16225 of 2013, the petitioner IFFCO in SCA 673 of 2014 and SCA No. 2607 of 2012 and the petitioner Kesar Terminals in SCA No. 11497 of 2015, No. 10892 of 2016, No. 10891 of 2016 and No. 10730 of 2016, have prayed for the renewal of their respective leases. 71. Before examining the individual case of the petitioners for renewal, it may be noted that the port lands belong to the respondent KPT and are the public premises within the meaning of Section 2(e) of the Public Premises (Eviction of Unauthorized Occupants), Act, 1971, and are governed by the provisions of the MPT Act and by the policy guidelines issued under Section 111 of the said Act. The Clause 6.2.2.2 of 2010 Land Policy pertaining to the renewal of existing leases, inter alia provided that the port should first verify if the land was required for its own use. If not required, it could be renewed if it was consistent with the land use plan and subject to other conditions mentioned therein. Similar provision has been made in Clause 11.3 in the 2014 land policy guidelines. Hence, the KPT is required to consider the said provis....
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.... consent and in absence thereof through the mediation of local mukhia or panchas of the village. The aforesaid renewal clauses (7) and (9) in the agreement of lease clearly fell within the expression "agreement to the contrary" used in Section 116 of the Transfer of Property Act. Under the aforesaid clauses option to seek renewal was to be exercised before expiry of the lease and on specified conditions. 19. The lessor in the present case had neither expressly nor impliedly agreed for renewal. The renewal as provided in the original contract was required to be obtained by following a specified procedure i.e. on mutually agreed terms or in the alternative through the mediation of Mukhias and Panchas. In the instant case, there is a renewal clause in the contract prescribing a particular period and mode of renewal which was "an agreement to the contrary" within the meaning of Section 116 of the Transfer of Property Act. In the face of specific clauses (7) and (9) for seeking renewal there could be no implied renewal by "holding over" on mere acceptance of the rent offered by the lessee. In the instant case, option of renewal was exercised not in accordance with the terms of ....
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....s. IMC in SCA No. 2538 of 2017, it appears that the petitioner had requested the KPT to renew the lease deed in accordance with the Clause-8 of the lease deed by its letter dated 15.5.2008, however, the said request appears to have been declined by the KPT vide the letter dated 8th October, 2013 on the ground that the land was required for KPT's own use. Thereafter the KPT had stated vide the letter dated 16.3.2015 that the request of the petitioner to renew the lease deed would be considered only if the outstanding dues were cleared. It appears that thereafter, the KPT had issued a notice on 28.8.2018 under Section 4(1) and (2) of the Public Premises (Eviction of unauthorized occupants) Act, stating that on the expiry of the lease, it was decided by the KPT not to renew the lease further as the plot was required for the purpose of Port's activities. The petitioner, apprehending eviction therefore, had filed Civil Application No. 1 of 2018 in SCA No. 2538 of 2017 seeking direction against the KPT to maintain status quo during the pendency of the petition. Learned Sr. Advocate Mr. Soparkar for the petitioner IMC, therefore, submitted that since the petitioner had applied for....
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....21982. The term of the lease has also expired in 2013. Hence, the petitioner who is unauthorized occupant after the expiry of lease period could not seek as a matter of right the direction to renew the lease. 76. In case of SCA No. 16225 of 2013 filed by Laxmi Motors, it appears that the KPT had already initiated action under the Public Premises Act, treating it to be an unauthorized occupant on the expiry of lease period in 2013. The eviction order was also passed by the Estate Officer, against which the Appeal is pending. Hence, the question of renewal of lease does not arise. 77. In case of SCA No. 2607 of 2012 and No. 673 of 2014 filed by IFFCO, the lease period has already expired in respect of one parcel of land in 2001 and in respect of the other in 2008. The petitioner had applied for the renewal of lease, and the KPT had forwarded the same to the Government of India, however, the Government of India had returned the recommendation for renewal of lease stating that if it was not possible to charge lease rent at the commercial rates, the possession of plots be taken away from the IFFCO. Though, it was sought to be submitted by the learned Advocate for the petitioner th....
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....etionary decision of the KPT not to renew the lease being in consonance with the land policy of 2004 and later policies, no direction to renew the lease of the petitioner could be given as prayed for. FINAL CONCLUSIONS AND ORDER;- 80. The upshot of the aforesaid discussions and findings may be concluded as under:- (i) The Land Policies of 2010 and 2014 in respect of the Port lands issued by the Central Government under Section 111 of the MPT Act, are legal, valid and binding to the respondent KPT and the TAMP. (ii) No interference is called for in the order dated 13.11.2014 passed by the TAMP and published vide the Notification dated 4.12.2014 under Section 49 of the said Act. The SoR framed by the TAMP shall be effective from 1.1.2014 as directed in the said order. The said order stands confirmed accordingly. The demand notices, if any issued to the petitioners based on the said order also stand confirmed accordingly. (iii) The order dated 25.3.2011 passed by the TAMP and published vide Notification dated 11.5.2011 is partly set aside to the extent it approves the SoR with retroactive effect from July 1999. The SoR approved by the TAMP for the peri....
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....etitioners based on the said order shall stand set aside, however, the KPT shall be at liberty to issue fresh demand Notices. Rest of the prayers made in each of the petitions are rejected. The petitions stand partly allowed to the aforesaid extent. (II) Special Civil Application Nos. 2535 of 2017, 2536 of 2017 filed by M/s. IMC Limited; Special Civil Application No. 2537 of 2017 filed by M/s. JRE Tank Terminals Private Limited; Special Civil Application Nos. 11497 of 2015, 10730 of 2016, 10891 of 2016, 10892 of 2016 filed by M/s. Kesar Terminals and Infrastructure Limited; Special Civil Application Nos. 8538 of 2016, 13371 of 2013 filed by M/s. Mother Dairy Fruits and Vegetable Private Limited; and Special Civil Application No. 10611 of 2016 filed by M/s. INEOS Styrolution India Limited: The petitioners in these petitions have no legally enforceable right in respect of the respective subject plots held by them, and therefore, could not be said to be the "aggrieved persons", and had no locus standi to invoke extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, for seeking the prayers prayed by them in their respective petitions.....