Bela M Trivedi, J. - (1.) Though all the petitions have diversified facts, due to intermingling and commonality of legal issues, they were heard together with the consent of the learned Advocates for the parties and this common order is being passed.
(2.) The gist of the challenge in most of the petitions is the challenge to the Notification dated 11.5.2011 and the Notification dated 4.12.2014 issued by the respondent Tariff Authority for Major Ports (TAMP) constituted under Section 47A of the Major Port Trusts Act, 1963 (hereinafter referred to as "the said Act"). By the said Notifications, the TAMP has framed the scale of rates (SOR) for use of the lands belonging to the Kandla Port Trust (now Din Dayal Port Trust, but shall be referred to as 'KPT' for the sake of convenience), under Section 49 of the said Act. The consequential actions taken by the KPT on the non-payment of the lease rentals as per the scale of rates framed by the TAMP under the impugned notifications and non-payment of the compensatory bills have also been challenged in some of the petitions, whereas some have prayed for renewal of their respective leases. FACTUAL MATRIX:
(3.) Special Civil Application No.2535 of 2017 filed by the petitioner M/s.IMC Limited being the lead matter was argued at length, and hence its facts are considered for easy comprehension. 3.1 The petitioner No.1 M/s.IMC Limited (earlier known as United Storage Tanks Terminals Ltd. - USTTL) is a company incorporated under the provisions contained in the Companies Act, 1953. The USTTL was wholly owned subsidiary of the petitioner No.1 Company and was amalgamated into the petitioner No.1 Company by a Scheme of Amalgamation approved by the Calcutta High Court by its order dated 7.7.2010. The petitioner No.2 is the Managing Director of the petitioner No.1 and is also a shareholder thereof. 3.2 The petitioner No.1 is engaged in the business of port based liquid bulk terminal operations and providing storage tank farm and terminalling services. The respondent No.2 is the Tariff Authority of Major 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 lac only) as per Clause (f) of the letter of allotment. In addition to the premium, the USTTL was charged lease rental at the rate of Rs.11/- per sq. mtrs., in terms of Clause (c) of the said letter of allotment, which was to be compounded at 10% annually from the date of letter of allotment. 3.4The respondent No.3 KPT had the right to revise the rent rates every five years and in July 1999, the KPT suggested revised rent rates, however, the respondent No.2 TAMP refused to revise the rent rates at that time, on account of natural calamities in the region, and directed the KPT to classify the land taking into account the distance from the creek and the purpose for which the land was allotted. Accordingly, in 1999 the land owned by the respondent No.3 was classified into following five categories:- JUDGEMENT_33_LAWS(GJH)5_2019_1.html JUDGEMENT_33_LAWS(GJH)5_2019_1.html 3.5 Due to several natural calamities viz. Super cyclone in 1999 and earthquake in 2001 and their aftereffects in the region, the rates proposed by the respondent No.3 were not accepted by the respondent No.2 TAMP and were not implemented during the period from 1999 till 2004. In 2005, the Government issued guidelines that the Port Trusts should charge land premium upfront based on the tender along with nominal rent of Re.1/-. 3.6 In the year 2005, the respondent No.3 KPT issued a tender inviting bids for allotment of plots (adjacent to the LPG Project of OIC) for construction of liquid storage tanks for handling liquid cargo at Kandla on a 30 year lease. In the said tender the respondent KPT had changed the payment model from a premium-cum-lease rent structure followed earlier to single lump sum consideration in the form of a higher premium and token Re.1/- lease structure. However, the said tender of 2005 was subsequently cancelled by the KPT in or around December 2010. 3.7 In the meantime, the Land Policy Guidelines - 2010 was issued 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 from the respondent KPT. The said letter was forwarded to Gandhidham Chamber of Commerce and Industry (GCCI), an association in which the petitioner No.1 was a member. One of the members of the GCCI was a registered association representing liquid tank terminals based at the Kandla Port, being the Kandla Liquid Tank Terminal (KLTTA). The said KLTTA raised objections against the proposed increase in the lease rentals for various reasons before the respondent TAMP. It was also pointed out to the respondent TAMP that the respondent KPT had chosen to rely on the valuers report rather than the State Government's guidelines and that the relevant land policy at the time was brought into force in the year 2004, and therefore, the policy of 2010 could not be utilized for fixing rent from the period from July 1999 to December 31, 2003. The joint hearing had also taken place on July 29, 2010. 3.10 Thereafter, the respondent TAMP by its order dated 25.3.2011, (published by the Notification on May 11, 2011), framed the scale of rates for the lease rentals for the plots of the land in the Port area for the following consecutive slabs:- a) July 1999 to December 31, 2003; b) January 1, 2004 to December 31, 2008; c) January 1, 2009 to December 31, 2013. 3.11 The 2011 TAMP order inter alia charged lease rentals retrospectively for C-1 lands (which included the petitioner No.1's lands) at the rate of Rs.30/- per sq. mtrs., for the period from July 1999 to December, 2003, Rs.39/- per sq. mtrs., for the period from January 2004 to December 31, 2008 and Rs.80.40/- per sq. mtrs., for the period from January 1, 2009 to December 31, 2013. The lease rentals were to bear an escalation of 5% (compoundable) per annum for the period from July 1999 to February 24, 2004 and at 2% thereafter. The respondent KPT thereafter issued a demand notice dated 20.5.2013 to the petitioner No.1 (USTTL) in respect of the lease and called upon the USTTL to make payment of arrears of lease rent effective from 1999 relying upon 2011 TAMP order. The petitioner No.1, therefore, vide letter dated 25.6.2013 replied to the said demand notice stating inter alia that the respondent KPT did not have any power to refix the base rent with retrospective effect. Thereafter, certain correspondences ensued between the parties. 3.12 In the year 2014, the respondent No.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 to Kharirohar having existing oil terminals of IOCL, HPPCL and BPCL. 3.13 Thus, the lands of the petitioners were classified in G-1 category, whose lease rental was increased to Rs.905.17 per sq. mtrs., with effect from 1.1.2014 till December 31, 2018. The respondent KPT thereafter by its letter dated 15.12.2014 addressed a letter to USTTL calling upon the petitioner to make payment of Rs.49,39,777/- for the period from January 10, 2015 to January 9, 2016 at the rate of Rs.90.55 per sq. mtrs., along with previous outstanding sums of Rs.1,51,32,089/-. The respondent KPT also raised a final notice for the payment on January 12, 2015 calling for the payment of outstanding dues from USTTL. The respondent KPT once again by its letter of February 2015 called upon the USTTL to make payment of Rs.4,54,48,780/- at the rate of Rs.923.27 per sq. mtrs., for the period from 1.1.2015 to 1.1.2016, and at the rate of Rs.941.74 per sq. mtrs., for the period from 1.1.2016 to 9.1.2016 along with previous outstanding sums. The respondent KPT thereafter raised an invoice dated 8.5.2015 on USTTL for Rs.905.17 per sq. mtrs., effective retrospectively from 1.1.2014 and demanded lease rentals as stated in the said invoice. The petitioner No.1 had responded to the said demand notice by addressing a letter dated 3.2.2016 pointing out that such demand raised by the respondent KPT was exorbitant on account of wrongful categorization of liquid tank farm business. According to the petitioners, the petitioner No.1 made payment under protest of Rs.51,34,536/- at the rate of Rs.90.55 per sq. mtrs. 3.14 According to the petitioner it had already informed the KPT vide its letter dated 8.9.2010 that pursuant to the order dated 14.6.2010 of the High Court of Kolkatta, USTTL was amalgamated with the petitioner M/s.IMC Limited, and therefore, the name of the petitioner Company was required to be changed in the KPT's records. However, the KPT vide letter dated 17.10.2013 had called upon the petitioner to remit the outstanding dues of the USTTL, stating that the land was allotted to USTTL and that it is not transferred in the name of M/s.IMC Limited as per the KPT's record. The KPT thereafter informed the petitioner by its letter dated 5.2.2016 that USTTL's change in name was not finalized due to non-payment of dues by USTTL and pending Court case (filed by the petitioner 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 Notification G. No.350 on December 4, 2014, by respondent No.2 (2014 TAMP order) and after considering the legality and validity thereof, be pleased to quash and set aside the same; c) That this Hon'ble Court declare the change in the categorization of the lands demised unto petitioner No.1 on the basis of its use under the order dated November 13, 2014 notified vide Notification G. No.350 on December 4, 2014, by respondent No.2 (2014 TAMP order), as discriminatory, bad and illegal; d) That this Hon'ble Court issue a writ of certiorari/a writ in the nature of certiorari and/or any other appropriate writ, order, or direction quashing and setting aside the notices dated May 20, 2013, December 17, 2013 and December 15, 2014 and any other notices issued by respondent No.3 to petitioner No.1 in relation to the demand for lease rent under the order dated March 25, 2011 notified vide Notification G. No.106 on May 11, 2011, by respondent No.2 (2011 TAMP order); e) That this Hon'ble Court issue a writ of certiorari/a writ in the nature of certiorari and/or any other appropriate writ, order, or direction quashing and setting aside the notices dated May 8, 2015, February, 2015, February 5, 2016 and December 2, 2016 and any other notices issued by respondent No.3 to petitioner No.1 in relation to the demand for lease rent under the order dated November 13, 2014 notified vide Notification G. No.350 on December 4, 2014, by respondent No.2 (2014 TAMP order); f) This Hon'ble Court be pleased to declare the unilateral change to the premium-cum-lease rent structure in the existing Leave of the petitioner, by respondent Nos.2 and/or 3 as illegal;";