1 WP-1051-15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1051 OF 2015
Chaucer Capital Limited
through its Constituted Attorney
Mr.Sitaram Teravankar
office at 402, Raheja Chambers,
Nariman Point,
Mumbai 400021. .. Petitioner
Versus
1 Maharashtra Maritime Board
Indian Mercantile Chambers,
3rd floor, Ramjibhai Kamani Marg,
Ballard Estate, Mumbai 400038.
2 Minister (Ports),
Home Department,
Government of Maharashtra,
Mantralaya, Mumbai 400 032.
3 JSW Infrastructure Limited
having its office at Jindal Mansion,
5A, Dr.G.Deshmukh Marg,
Mumbai - 400026.
4 Department of Atomic Energy
Anushakti Bhavan, CSM Marg,
Mumbai 400001.
5 Union of India
having its office at CGO Building,
Queens Road, Marine Lines
Mumbai. .. Respondents
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...
Mr.Aspi Chinoy, Senior Counsel with Rohan Rajadhyaksha
with Tanmayi Rajadhyaksha with Mohanish Chaudhari i/b
Mohanish Chaudhari for the petitioner.
Mr.Gaurav Joshi, Senior Counsel with Rahul Sinha i/b DSK
Legal for respondent no.1.
Ms.Geeta Shastri, Addl.Government Pleader for respondent
no.2.
Mr.Janak Dwarkadas, Senior Counsel with Mr.Rahul
Narichania, Senior Counsel, Ms.Bindiya Raichura and
Ms.Smriti Jha i/b Mulla & Mulla & Craigie Blunt & Caroe for
respondent no.3.
Ms.Aswini R. Singh for respondent nos.4 and 5.
CORAM: DR. MANJULA CHELLUR, CJ. &
G.S.KULKARNI, J
RESERVED ON : 11th SEPTEMBER, 2017
PRONOUNCED ON : 13th OCTOBER, 2017
JUDGMENT (Per Dr.MANJULA CHELLUR, CJ):
1 The petitioner herein is before this Court seeking reliefs as under :
(A) To set aside the impugned order dated 27.05.2014 of respondent no.2 which came to be passed in terms of direction of this Court by order dated 8th January 2014.
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(B) To quash the impugned LOI dated 19.10.2011
issued to respondent no.3 followed by Lease Deed dated 3.12.2011 executed between Respondent No.1 and Respondent no.3, as well as modifications dated 04.04.2013 and 17.07.2014.
(C) To prohibit Respondent no.1 from granting further rights or permission to develop the site earmarked for proposed Alewadi Port Project. (D) To direct Respondents No.1 and 2 to complete the selection procedure which started in the year 2007 in terms of 1996 port policy and not to subject the petitioner to any new tender process.
FACTS :
2 The petitioner being a private equity fund known as "Chaucer Capital Limited" incorporated under the laws of the United Kingdom is before us. The first respondent is the Maharashtra Maritime Board (for the sake of convenience and brevity referred to as "MMB'"), a statutory Board constituted under MMB Act. The second respondent is the Minister (Ports) Home Department, Government of Maharashtra. Third respondent is JSW Infrastructure Limited, a Company registered under Companies Act of 1956.
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Contention of the petitioner:-
3 In pursuance of the policy of Government of
Maharashtra dated 15th March 1996, so far as the construction of jetties and multipurpose ports, such construction was to be given to private sector in order to develop non-major ports (for short "1996 Policy"). Alewadi was considered as a promising site in Tarapur area for establishment of multipurpose port. When no satisfactory responses were received for global tenders for development of Alewadi port, the methodology evolved for the development of ports was through Memorandum of Understanding. Accordingly, Government of Maharashtra evolved procedure for selection of developers; one for 'Self-controlled Captive Jetty', another for 'Multipurpose Jetties and Cargo Terminals'(for short "2005 Policy"). Initially, several developers expressed their interest so far as development of Alewadi port, but in due course of time, they withdrew their offers. In the year 2006, petitioner learnt that Alewadi project was still available. Therefore, on 6 th January 2007, petitioner expressed its interest to develop an All Weather and Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:17 ::: 5 WP-1051-15 Multipurpose port at Alewadi with the coordinates "latitude 19° 46" 30 North and longtitude 72° 50 East". 4 A Techno Economic Feasibility Study Report along with necessary fee came to be sent on 7 th February 2007. On 25th February 2007, petitioner undertook development after taking advise from Hauers - a Specialist Port Consultancy in India and overseas from Ocean Shipping Consultants - a UK based Port and Shipping Consultant. Accordingly, petitioner sought issuance of LOI. Subsequently, petitioner also informed MMB - the first respondent that a well known International Port Operator M/s.International Container Terminal Services was appointed as its strategic partner for the above project and further informed that they have entered into a Joint Venture agreement with the above said International Port Operator for the development of Alewadi Project which involved US$ 1.25 million (Rs.6.87 crores). 5 According to the petitioner, several meetings were held in the month of July 2007 between the stakeholders, Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:17 ::: 6 WP-1051-15 wherein petitioner was assured that LOI would be awarded shortly. The doubts raised in the said meeting were clarified by submitting documents and information. First respondent even addressed a letter on 17th July 2007 that the case of the petitioner is under consideration, and the same is being evaluated. Petitioner even informed the support for the said project assured by M/s.ICTSI ICL Financial Services Ltd and Societe Generale Bank who were ready to invest US$ 200 million to US$ 500 million.
6 According to the petitioner, repeated requests by them and assurances by the first respondent went on for about 2 years. In the month of February 2009, petitioner addressed a letter to first respondent reiterating its request for LOI and the MMB officers assured that LOI would be issued. Even in June 2009, petitioner sought allotment of Alewadi port.
7 According to the petitioner, through the impugned order dated 27th May 2014 of second respondent, they learnt Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:17 ::: 7 WP-1051-15 that on 18th June 2009, on account of security concern raised by Department of Atomic Energy (hereinafter referred to as "DAE") regarding proximity of the proposed port to the Tarapur Atomic Power Station, Alewadi port project was dropped in the 51st Board Meeting of MMB. Several letters were addressed by the petitioner to the MMB in January 2010 to issue LOI subject to obtaining security clearance within 36 months. Second Techno Economic Feasibility Study Report was submitted on 14th June 2010. Petitioner learnt that except the petitioner, none of the other previously qualified and interested parties responded to the request for re- submission of TEFS report.
8 However, in the month of August 2010, Government of Maharashtra laid down a revised Port Policy (hereinafter referred to as " 2010 Policy") which provided for the permission of Greenfield Port/Multi purpose jetty/cargo terminals wherein a tender process was suggested instead of MOU route.
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9 In February 2011, according to the petitioner, on
the submission of the proposal by third respondent to the first respondent for construction of an All Weather Captive Port, the third respondent was permitted to develop captive port/jetty at Nandgaon, by issuing impugned Letter of Intent, a lease deed followed by a Modification of Lease deed, which lies on the approximate latitude 19º 46' North and 72° 41' East. The said project happens to be exactly on the same coordinates with the Alewadi port proposal of the petitioner which is clearly depicted at Annexure A-28. Petitioner contends that there was no compliance of port policies of either 2005 or 2010. According to the petitioner, under the guise of captive jetty facility, third respondent intends to operate a port, and this is evident from the report of TEFS submitted by respondent no.3 wherein they declare that the proposal was for a Captive Port Facility which has all the logistical advantages of large ports. The proposal further states that not only it could handle the cargo of nearby plants of respondent no.3, but also can meet the requirements of adjoining areas for import and export purposes. On 16th Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:17 ::: 9 WP-1051-15 March 2011, through the Solicitor of the petitioner they urged Transport Secretary to award the Alewadi port to the petitioner and in this letter, they had stated that issuance of LOI to construct a jetty with the long term objective of turning it into a port would amount to circumvention of Government Policy of 2010. They further admit that in November 2011, a representation was made to the then Chief Minister of Maharashtra, contending that their case would not fall within the scope of New 2010 Port Policy since their proposal was submitted in 2007 in terms of earlier port policy, therefore, it can be undertaken only through 'MOU route'. They clarified the objection raised by Department of Atomic Energy stating that DAE was under the mistaken impression that the proposed Alewadi Project was within 3 kms radius from Tarapur Power Plant, and in fact it was approximately 9 kms from the power plant.
10 Petitioner further contends that clarification of DAE on 18th April 2012 with regard to development of a port or jetty at Alewadi subject to certain terms and conditions Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:17 ::: 10 WP-1051-15 being complied with, was never brought to the notice of the petitioner. They further contend that they learnt about it only from the impugned order. According to petitioner, upto August 2012, they were pursuing their offer to develop the Port at a distance of 6 kms South of the original location, and were ready to comply with any conditions that may be imposed by Tarapur Atomic Power Station in relation to the port development at Alewadi. According to petitioner, when petitioner was pursuing their offer of development of port at Alewadi impugned lease deed was executed referring to the project as 'port' and later in April 2013, Modification Deed was executed granting additional 2500 meters of water front along with land comprising inter-tidal and under water area at the coast line of Nandgaon and Alewadi behind the back of the petitioner.
11 On 31st July 2013, they raised serious objections before MMB that development of a jetty at Nandgaon by third respondent would seriously prejudice the development of port at Alewadi since two entities cannot operate within the same Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:17 ::: 11 WP-1051-15 location. Thereafter, WP(L) No. 3278 of 2013 came to be filed wherein by an order dated 8th January 2014, the Bench directed 2nd respondent to decide the petitioner's representation dated 31st July 2013 expeditiously. It further directed the 2nd respondent not to take a final decision in respect of the development of Alewadi Port till the representation of the petitioner is decided. Subsequently, after conducting a cursory hearing without much opportunity to petitioner, second respondent passed impugned order on 27th May 2014. It is contended that impugned order is an illegal one directing for a correction to be made in the documents executed in favour of respondent no.3 without amending any of the terms of the document. Petitioner was directed to submit a proposal to respondent no.1 for development of a port at a site other than Alewadi in terms of new 2010 policy. According to the petitioner, inspite of several requests and demands including the lease deed between respondent nos.1 and 3, the minutes of 51st Board Meeting, so also objection letter of the DAE on 2nd August 2014, MMB supplied only part of the documents without copy of the Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:17 ::: 12 WP-1051-15 impugned lease deed which showed the location, size and plan of the Port. On 17th July 2014, reiterating that it was willing to comply with the conditions laid down by DAE, and it was not interested in relocating the development of the port to Satapati or Shirgaon, sent a letter to 2 nd respondent. On 17th July 2014, when things stood as stated, Modification of Lease Deed replacing the word 'Port' with 'Jetty' in terms of the orders of the second respondent came to be made. From 25th July 2014 till 15th December 2014, petitioner addressed letters and met Officers of MMB enquiring whether they would continue to refuse petitioner's request to have access to the documents. Ultimately, on 15th December 2014, in a meeting at MMB's office, petitioner was informed that no further documents would be provided.
12 Petitioner contends that MMB falls within the definition of State under Article 12 of the Constitution and MMB violated Article 14 of the Constitution, therefore, Part III of the Constitution for enforcement of fundamental rights could be invoked. According to petitioner, when the Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:17 ::: 13 WP-1051-15 objections of DAE were subsequently lifted, the petitioner's offer ought to have been considered as alive, and ought to have been granted in terms of 2000 Port Policy. 13 It is further contended the lease entered into between first and third respondents is not in consonance either with 2005 Jetty Policy or the 2010 Port Policy. The case of the third respondent ought to have been in terms of 2005 Policy meant for multipurpose jetty requiring tender process. The requirement of minimum distance between two multipurpose jetties/ports was also not maintained since the site of petitioner is within 5 kms distance from the site of 3 rd respondent. They also contend that while keeping the petitioner's application pending for 7 years without any follow-up action by the respondents, hastily approved the proposal of respondent no.3 to develop a port at Nandgaon which came to be submitted only in the year 2011. This is nothing but discrimination against petitioner.
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14 According to the petitioner, security concerns
raised with regard to Tarapur Atomic Power Plant would equally apply to Alewadi and Nandgaon. Similarly, restriction imposed on movement of foreign ships and chemical cargo in the Alewadi area applies to the case of respondent no.3. Totally ignoring above facts, proposal of respondent no.3 was granted without fair opportunity to represent being given to the petitioner. According to petitioner, respondent nos.1 and 2 did not consider repeated concern raised by petitioner that sanctioning a jetty at Nandgaon would render proposal of petitioner to establish a port at Alewadi, infructuous. 15 Petitioner further raises a grievance that the request of the petitioner to proceed with its application subject to a ''No Objection Certificate" from DAE, was not responded. Similarly, the proposal of petitioner to shift the location of port from Alewadi to a distance of 6 kms South of original location even after DAE lifted the restrictions, was not considered.
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16 According to petitioner, there is lack of application
of mind by 2nd respondent in passing the impugned order and the reasoning is vague and erroneous. They further contend that first respondent has failed to take into account the breach of various Port Policies. It is further contended that without tender process or expression of interest route, proposal of third respondent was hastily and erroneously granted totally ignoring that petitioner was qualified for the Alewadi port. It is further contended there is an effort to confer on 3rd respondent to operate a port under the guise of captive jetty which is clear from the observations made by second respondent in the impugned order. By changing the terminology, captive port facility to captive jetty facility, there is no rectification of violation of the terms and conditions of policies. There is no intelligible differentia upon which differential treatment of the two classes of individuals in the same situation came to be considered.
17 It is further contended that policy of MMB was to develop a port at Alewadi in terms of 1996 policy. However, Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:18 ::: 16 WP-1051-15 they kept the proposal of the petitioner pending from 2007 onwards and according to petitioner, it was alive till Nandgaon was sanctioned in favour of third respondent without following proper procedure. This is nothing but colourable exercise of power on the part of respondent nos.1 and 2. With the above pleadings and arguments, petitioner is before us contending that there is no delay and laches in approaching the Court.
Contentions/Reply on behalf of Respondent no.1 -
MMB.
18 Per Contra, MMB denies all the allegations made against the first respondent. Preliminary objection is that there was no privity of contract between the petitioner and respondents, hence, petitioner has no locus standi to maintain the writ petition. Therefore, the petitioner cannot challenge the veracity of a contract/agreement/LOI executed by and between respondent no.1 and respondent no.3 since petitioner is not a party to the said contract.
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19 It is further contended that the petitioner without
substantiating its claim on any valid, binding or concluded agreement cannot come before the Court on the basis of a false, baseless and frivolous claim sought to be invoked in the Writ Petition. At no point of time, there existed any promise made or held to grant approval of proposed Alewadi port. The relief seems to be specific performance of a contract which does not exist and cannot be granted in a writ jurisdiction.
20 According to the MMB, since the alleged claim is based on disputed questions of facts, on assumptions and presumptions no relief can be granted in a writ jurisdiction under Article 226 of the Constitution, since there is no cause of action in favour of petitioner against the MMB. 21 They also contend that the petition is bad for delay and laches on the part of the petitioner since the agreement between the MMB and third respondent came to be entered into in 2011 which has been acted upon. These facts were matter of public knowledge. The writ petition Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:18 ::: 18 WP-1051-15 which came to be filed on 9th March 2015 seeking cancellation of agreement without explaining the gross delay and laches in filing the present petition as well as the earlier litigation, there cannot be creation of a fresh cause of action on the ground of impugned order of the second respondent.
22 According to the MMB, Government of Maharashtra came out with 1996 policy inviting private sector companies etc. to undertake the development of Ports through public tender process. Initially, 7 ports were identified and Tarapur in Thane district was included when Global tenders were invited for development of Alewadi after carrying out Techno Economic Feasibility Study (TEFS) through the Consulting Engineering Services Pvt. Ltd. MoU route with private developers was evolved when there was no effective response to global tenders. In 2002, when Maharashtra Infrastructure Summit took place, no one came forward to develop Alewadi port. The policy of 1996 was amended in 2002 wherein specific terms of agreement had to be entered into with the port developers.
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23 When things stood as stated above, in the year
2005, Government took a decision to notify the Self Controlled Captive Jetty with the object of privatization of minor ports in the State and it was in consonance with privatization of minor ports in terms of 1995 policy in respect of captive jetty. The signing of the agreement with the entrepreneur for captive jetties was in terms of policy of 2005.
24 Along with the petitioner, one M/s.Videocon Industries, M/s.Larsen & Toubro and M/s.SKIL Infrastructure showed interest to develop Alewadi port. They were asked to submit Techno Economic Feasibility Report (TEFS) along with processing fee. TEFS reports of above four entrepreneurs were got scrutinized through an independent agency M/s.Deloitte. In the 48 th Board Meeting of the MMB, Board was directed to submit a report to the State Government and Principal Secretary (Transport) and the proposal for selection of developer wherein they were directed to indicate within how much time the tender process Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:18 ::: 20 WP-1051-15 would be undertaken. Accordingly, the MMB submitted its report to the State. The Home Department opined that the process of tender for Alewadi port would take at least 23 weeks, and the same was to be placed before the next Board Meeting. When the matter came up before 49th Board Meeting, a decision was taken to refer the matter to High Power Committee (HPC) who were in turn to submit recommendations to the Government. Mean while, on 29 th January 2009, DAE by its letter informed the State Government the objection to the proposal for development of Alewadi port raising the security concerns so far as Nuclear Plant situate at Tarapur site. Therefore, the State Government directed the MMB to examine the port proposal at Alewadi vis-a-vis geographical details and also to discuss the same with DAE. Respondent no.1 was also directed to intimate interested developers to submit in writing if they were interested in Alewadi port project, and after obtaining those letters, they were to be submitted before the Board. On 18 th June 2009, in 51st Board Meeting when the proposals of Alewadi port came up for consideration, on account of Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:18 ::: 21 WP-1051-15 security objections raised by DAE, a decision was taken not to proceed with the development of Alewadi port project. An alternative option to set a port North of Mumbai was also directed to be examined. Written willingness of interested developers were furnished to the State Government. On 11 th June 2010, State Government informed respondent no.1 that the development report of Alewadi port is based on 2002- 2003 data, therefore, it would not be conducive to consider the said data in the year 2010. Respondent no.1 directed all interested developers to submit fresh reports so as to get them scrutinized through a consultant afresh. In response to the request of respondent no.1 on 14th June 2010, petitioner submitted its Techno Economic Feasibility Study Report. Mean while, on 20th August 2010, State of Maharashtra came up with a more dynamic investor friendly new port policy, with special focus on corporate social responsibilities. On 16 th November 2010 and 12th January 2011, Government directed respondent no.1 to express its views on the objections raised by DAE regarding security concerns.
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25 On 2nd February 2011, respondent no.3
approached respondent no.1 with a proposal to develop an All Weather Captive Port facility for captive use by the third respondent near Nandgaon since their Steel Plants are located at Tarapur and Vashind. On 9 th February 2011, Respondent no.1 addressed a letter to the Secretary (Transport Ports and State Excise) suggesting shifting of the port location towards South to Nandgaon area by 2 - 3 kms and further requested the Government to take up the matter with DAE to allow the development of port with additional security and safety measures as required. In the month of September 2011, proposal of respondent no.3 to develop captive port facility at Nandgaon 3 kms South of Alewadi in accordance with captive policy 1995 and 2005, GRs, was considered. This was with a view to reduce burden of rail and road infrastructure. In December 2011, respondent no.1 signed a Lease Deed with respondent no.3 for development of captive jetty at Nandgaon. In April 2012, DAE conveyed conditional clearance for development of port/jetty at Alewadi/Nandgaon Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:18 ::: 23 WP-1051-15 which declared that no foreign vessel will be called at the proposed port/jetty. On 7th August 2012, petitioner submitted a letter proposing to develop port on an alternate site between village of Satpati and Shirgaon. However, no feasibility study report was submitted. In the month of January 2013, respondent no.3 requested modification of lease deed for waterfront area for the development of an All Weather Port facility, wherein they clearly indicated that after signing the lease in the month of December 2011, extensive study of the area conducted by respondent no.3 suggested construction of two breakwaters, one in the North and other in the South to make captive port facility operational for more than 220 days in a year. Therefore, Deed of Modification came to be signed in April 2013.
26 At this stage, petitioner filed a Writ Petition bearing WP (L) No. 3278 of 2013 before this Court against first and second respondents herein. MMB was not separately served. On 8th January 2014, a direction was issued against respondent nos.1 and 2 to decide the representation of Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:18 ::: 24 WP-1051-15 petitioner dated 31st July 2013 within 12 weeks after giving personal hearing. After hearing was conducted on 12 th February 2014, a detailed order was passed on 27 th May 2014 directing the MMB to make necessary amendments in the agreement signed between respondent no.1 and respondent no.3 clarifying and restricting the captive jetty at Nandgaon for the use of captive purpose only. Further, petitioner was allowed to submit a proposal to respondent no.1 for alternate location in lieu of Alewadi port development. It further said that such proposal of petitioner, if any, has to be in terms of provisions of New Port Policy of 2010. Accordingly, in July 2014, a Deed of Modification came to be executed between respondent no.1 and respondent no.3 to substitute 'captive port facility' with the word 'captive jetty'. In October 2014, MMB received notice from the petitioner proposing intended application to the Government under India United Kingdom Bilateral Investment of Protection Agreement (BIPA). This indicated that the petitioner was choosing to proceed with an alternative remedy. According to first respondent, for the reasons stated above, petitioner had no locus standi to file the Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:18 ::: 25 WP-1051-15 present petition apart from there being no cause of action in the absence of privity of contract between the parties. Contentions/Reply of respondent no.2.
27 According to 2nd respondent, there was no cause of action against 2nd respondent since order dated 27th May 2014 by the 2nd respondent was made only after giving fair opportunity of hearing to the petitioner in terms of directions of the High Court by order dated 8th January 2014, and the impugned order is a self- speaking order.
28 Second respondent contends that State of Maharashtra has set up Maharashtra Maritime Board (MMB)
- respondent no.1, a statutory body under the Maharashtra Maritime Board Act, 1996. They administer and promote maritime projects for Greenfield ports and various types of jetties, coastal shipping, etc. in terms of Indian Ports Act 1908, and the Inlands Vessel Act, 1917. Policies are laid down by the Government of Maharashtra and the day-to-day administration of the policy is carried out by respondent no.1.
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They are empowered to execute lease deed, sale and purchase of property, apart from granting concessions for various port projects applicable in terms of policy. Policies were with the main object of promoting maritime sector in the State from time to time. In the year 1996, as per Exhibit-A, a G.R was issued notifying private sector companies to develop ports through public tender process which included Tarapur in Thane district. Global tenders were initially invited for development of Alewadi Port after carrying out Techno Economic Feasibility Study, but no sufficient response were received. On 28th November 2000, Government of Maharashtra issued notification for developing Dighi and Rewas ports by entering into MOU with private developers, and also stated that the port development would be on the basis of Build, Own, Operate, Share and Transfer ("BOOST"). The main object was to develop the ports in a time bound manner. Policy of 1996 was further amended in the year 2002 wherein specific terms of agreement have to be entered into with the Port developer in terms of Exhibit-1. Mean while, in the year 2005, Government Resolution was issued Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:18 ::: 27 WP-1051-15 for Self Controlled Captive Jetty. The main component of Port Policies have been privatization of minor port in the State as laid down in the 1995 Policy in respect of captive jetty in the State as laid down in the G.R of 19 th August 2005 giving sanction to the signing of the agreement with entrepreneur for captive jetty before the G.R dated 23 rd January 2005. Those policies are Exhibit-2, 2A and 2B.
29 By indicating special focus on corporate social responsibilities, a new port policy came to be declared on 20 th August 2010 to make it more dynamic and investor friendly. As per Exhibit-3, various policies have been laid down separately for Greenfield port and captive jetties. Under the said policy, a clear distinction has been made between green field ports and jetties. Both projects have similar purpose of handling cargo and vessels and many elements of infrastructure such as wharf, approach channel, capital and maintenance dredging, cargo, handling gear, breakwater, ancillary facilities may be common to both. However, the specific element of infrastructure needed for jetty or for port Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:18 ::: 28 WP-1051-15 depend upon site conditions and business plan of the promoters. Government has separate policies for port projects. Captive jetty is different from a port which is mainly intended to handle inward and outward cargo of a specific large industrial unit whereas port generally handles public cargo. Any industrial unit planning a captive jetty can do only at a logistically convenient and proximate location on the coastline.
30 The State government was making continuous efforts to develop a port north of Mumbai in order to decongest the existing Mumbai port and to provide additional cargo handling capacity. There were continuous efforts to develop a port at Alewadi. According to them, mere submission of TEFS even if on two occasions, does not confer any right on the petitioner or anyone for that matter. However, said project could not take off on account of security objections raised by DAE. In its letter dated 18 th February 2009, State Government directed respondent no.1 to examine the port proposal at Alewadi vis a vis geographical Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:18 ::: 29 WP-1051-15 details and discuss the same with DAE. They were further directed to intimate interested developers to submit in writing if they were interested in the said Alewadi project, and after obtaining the details, proposals should be placed before the Board. On 11th June 2010, State Government addressed a letter to the MMB that the development of port of Alewadi is based on 2002-2003 data, therefore, directed to obtain fresh reports from all interested developers.
31 Mean while, DAE conveyed conditional clearance for development of captive jetty at Alewadi/Nandgaon which includes that no foreign vessel will be called at the proposed port or jetty. Government also directed the MMB in October 2010 to follow up the proposal of Port Policy of 2010 for selection of a promoter for Alewadi port. It suggested to follow EOI route by competitive bidding. Therefore, the petitioner whose proposal was much prior to 2010 port policy, was not ipso facto entitled for award of the project concession. Subsequent to the conditional clearance by DAE to the project in 2012, it would not have been legal and Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:18 ::: 30 WP-1051-15 proper to consider petitioner's application merely on the basis of persuasion when 2010 port policy was very much in force. Respondent no.1 has given permission to respondent no.3 for captive jetty at Nandgaon for handling their cargo for their Steel Plant at MIDC, Tarapur. On 2nd August 2016, the State Government gave a direction to respondent no.1 to ensure that the existing policy of captive jetty is followed while scrutinizing the Detailed Project Report of Nandgaon jetty. Contentions/Reply of respondent no.3.
32 In the reply affidavit of respondent no.3, all the allegations made against respondent no.3 are denied as false and incorrect. The prime objection of respondent no.3 is with regard to gross delay of more than 14 months on the part of the petitioner in approaching the Court from the date of passing of the impugned order.
33 They contend that in 2011 itself, notices were published inviting comments or objections with regard to Nandgaon project before any development is carried out.
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Similarly, several newspapers carried the news on 5th September 2012 by Maharashtra Pollution Control Board notifying the public at large to hear on the Environmental Issues so far as development of Nandgaon port. Hence, third respondent contends that petitioner though had prior knowledge in the year 2011 itself of Nandgaon project being granted to respondent no.3 since all the events were within the public domain and knowledge, still, petitioner makes dishonest statements against respondent nos.1 and 2 stating that petitioner was not informed that respondent no.3 has been given permission to construct port/jetty at Nandgaon. According to third respondent, petitioner was very much aware of the development of Nandgaon port much prior to 2015 since any commercial entity in the business is expected to have such knowledge.
34 Similarly, the very conduct of the petitioner disentitles it to get the relief by making false and reckless allegations against respondent no.2 alleging a cursory, hasty, formal hearing without giving fair opportunity of being heard Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:18 ::: 32 WP-1051-15 to the petitioner. Such allegations are concocted since they are raised at a belated stage, and it is nothing but an after- thought. By letter dated 30th June 2014, when Advocate for the petitioner sought copies of the documents and material relied upon by the second respondent, no allegations were made against anyone.
35 According to third respondent, petitioner deliberately with malafide intention did not make the third respondent as a co-respondent in the earlier WP(L) 3278 of 2013 before this Court, even though petitioner was fully aware of respondent no.3 entering into a Lease Deed with the respondent no.1 on 3rd December 2011. This was only with an intention to snatch orders behind the back of third respondent by resorting to unfair tactics. The intention was to make an ex-parte representation before respondent no.2 which is clear from the observations made in the impugned order dated 27th May 2014.
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36 Third respondent refers to the representation by
letters dated 18th April 2012 and 23rd May 2012 made by the petitioner before the MMB identifying alternate site between villages of Satpati and Shirgaon for development of a port which is about 5.4 kms to 8 kms from the site at which respondent no.3 is constructing the captive jetty at Nandgaon. Third respondent contends that there is concealment of several facts which were within the knowledge of petitioner,therefore it amounts to dishonest conduct on the part of the petitioner.
37 In terms of Policy dated 26th June 1995 made by Government of Maharashtra, the captive jetty project was allotted to respondent no.3. Such privilege was already extended to several companies like (i) Ambuja Cements,
(ii)Ispat Industries, (iii)Vikram Ispat Ltd, (iv)Finolex Industries Ltd and (v)Ratnagiri Gas and Power LNG Naptha Pvt.Ltd, etc. Respondent no.3 along with its sister concerns have taken the steps in furtherance of object of constructing the Captive Jetty by expending about Rs.70 crores.
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38 According to third respondent, the proposal of the
petitioner to construct a commercial port falls under 2010 GR/Port policy which does not apply to the respondent no.3. This is quite contra or opposite or in contrast to the construction of captive jetty to handle captive cargo undertaken by respondent no.3. 1995 Policy of the Government was introduced with the avowed objective to enable industry to flourish by importing raw material directly or in close proximity to the activity carried out by the industries. Respondent no.3 in fact has Steel Plant, Power Plant at MIDC Tarapur as well as Vashind which are in close proximity to the captive port facility proposed by respondent no.3. It also operates as a deep water hub port for JSW Steel Works at Dolvi, which operates out of a riverine port. 39 Letter of Intent of respondent no.1 in favour of respondent no.3 is dated 19th October 2011 for the development of All Weather Captive Port facility at Nandgaon which has to be used subject to terms and conditions mentioned in the LOI. A lease deed dated 3rd December 2011 Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:18 ::: 35 WP-1051-15 for development of All Weather Captive Port at Nandgaon is also executed. Extensive campaign for collecting field data on Hydraulic parameters, soil profile, seabed profiles etc, was undertaken. With mathematical precision, model studies were conducted and a detailed feasibility study report was prepared and submitted. Its intention is to construct Captive Port Facility. Inter-Tidal land and waterfront for Captive Port facility was accordingly leased. This is initially for a period of five years since the project is on Build, Operate Transfer basis ("BOT"). Required agreements and MOU are already entered into between respondent no.1 and respondent no.3 for land filling which are required for the development of the captive port. Several lands are purchased by respondent no.3 nearby where the captive port is being constructed and the details are at Exhibit-F. Allotment of Nandgaon project in favour of third respondent was under G.R of 1995 which requires no bidding process as contended by the petitioner. In terms of order dated 27th May 2014, by respondent no.2, modifications were brought to the lease deed to convert the permission to operate as a 'captive jetty' instead of 'captive port'.
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40 They further contend that they have invested
considerable financial investments in the project engaging contractors, man power equipment by expending Rs.57 crores for purchasing the land in the villages for back-up and lay down storage. A Development Guarantee was executed in favour of respondent no.1 for Rs.5 crores for a span of five years. One time security deposit of Rs.10.10 lakhs is also paid. Huge amounts are spent for various surveys, investigations, studies, so also contracts with several contractors, suppliers and third parties. Therefore, respondent no.3 has made substantial investments and altered its position to the detriment in the development of captive jetty by entering into various contracts with third parties for various services. According to third respondent, despite having knowledge of all this, petitioner without taking any steps immediately, waited for 14 months after the impugned order. 41 The case of respondent no.3 is distinguishable from the case of petitioner since respondent no.3 is intending to develop only a captive jetty and not a commercial port Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:18 ::: 37 WP-1051-15 unlike the petitioner. Both State of Maharashtra and Gujarat have such captive/private jetties in terms of 1995 Policy. In terms of State Policy, it empowers the State to permit construction and maintenance of jetties to private entrepreneurs and also to allot land under water (Inter-Tidal land) and waterfront for the said purpose. Ownership is to vest with the Government after completion of lease or licence period in favour of third parties which could be for 25 to 30 years for handling their captive cargo. At the discretion of the Government of Maharashtra, such lessee or licensee can also handle third party cargo, but it is subject to terms and conditions in the G.R dated 26 th June 1995. There is no requirement or mandate of any bidding or tendering the process so far as captive jetty is concerned. About 29 such jetties are operating on Gujarat Coastline. The sole purpose is to encourage port based industries to construct captive jetties to cater to the export and import requirement. In the year 2005, Government of Maharashtra came up with a G.R with respect to multipurpose terminals/jetties to be constructed within the limits of small ports in the State. However, the Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:18 ::: 38 WP-1051-15 policy of the State in relation to the construction and operation of jetties continued to be governed by 1995 Policy & 2005 Policy. After several consents, compliances, including impact of reclamation of coastal line by spending huge amounts, third respondent has proceeded to develop the captive jetty.
42 After conducting studies regarding Marine Ecology distribution of Benthic organism, Air, water and noise pollution etc, report was submitted to Environment Impact Assessment (EIA). All required studies needed for the same were conducted including impact of reclamation activities on coastal environment etc. Central Marine Fisheries Research Institute (CMFRI) was appointed as agency for assessment of impacts on the fish production due to the project. NOC is issued by Commissioner of Fisheries, State of Maharashtra. Requisite consent of Maharashtra Pollution Control Board came to be issued on 10th July 2013. No Objection Certificate with respect to Coastal Regulatory Zone was also issued by Maharashtra Coastal Zone Management Authority by letter Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:18 ::: 39 WP-1051-15 dated 24th February 2015. At this belated stage, the petitioner approaching this Court cannot prejudice the interest of respondent no.3, is the stand of the respondent no.3. 43 On behalf of respondent nos.4 and 5, a reply affidavit is filed contending that in the month of August 2008, the DAE informed MMB to set up a captive jetty at village Navapur, Taluka Palghar, District Thane which is at an aerial distance of about 3 kms from the boundary of Tarapur Atomic Power Station. They also informed that due to strategic location of the jetty, there could be implications on the Security of the Tarapur Atomic Power Station (TAPS) vide letter dated 1st October 2008. Nuclear Power Corporation of India sought clearance of respondent no.4 for establishing port/jetty at Village Alewadi near MIDC, Tarapur on the request made by respondent no.3 vide their letter dated 8 th September 2008 addressed to Station Director, TAPS. In the said letter, it is stated that matter has been referred to their Corporate Planning Group for scrutiny from the site selection point of view and Corporate Planning Group confirmed that Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:18 ::: 40 WP-1051-15 Alewadi village falls outside the Sterile Zone, and no restriction has been imposed by the Nuclear Power Plant on use of land which is beyond Sterile Zone. It further stated that the matter, however, may kindly be scrutinized from the security point of view at the earliest for forwarding the necessary clearance to M/s.JSW Steel Ltd. At no point of time, neither the petitioner nor respondent no.1 nor respondent no.2 had ever approached respondent no.4 with full facts regarding development of port near Tarapur Power Station. The issue was only raised when respondent no.4 was intimated by Central Agency about the development of port being undertaken at an aerial distance of 3 kms from Tarapur Atomic Power Station from safety and security point of view. After receiving the said letter, respondent no.4 sought views on the issue for establishing a port/jetty at Alewadi near MIDC Tarapur from Bhabha Atomic Research Centre, Atomic Energy Regulatory Board and Nuclear Power Corporation of India. Similarly, views were sought from central agency and subsequently, after considering all the points raised by all the concerned authorities, on 29th January 2009, intimated the Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:18 ::: 41 WP-1051-15 Chief Secretary, Govt. of Maharashtra that Tarapur site of the DAE is located at an aerial distance of about 3 kms from proposed site/location. The site has 4 nuclear power plants apart from certain critical facilities of DAE. The establishment of port/jetty being close to the above coast based installations of DAE, will have security implications of a grave nature. According to them, nature of material handled in the vessels, ships visiting the jetty close to the shores of DAE installations, and engagement of a possibly large labour force would pose security threat/risks. The release of explosives would also have an impact on the nuclear installations. Therefore, the proposal for the Alewadi port/ jetty was directed to be dropped keeping in view the security implications for the nuclear power station at Tarapur site. Therefore, respondent no.4 intimated Government of Maharashtra that the above concern was only advisory and not binding on respondent no.1 and respondent no.2.
44 After a span of 2 years, Chief Secretary of Maharashtra again sent a letter dated 26th August 2011 to Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:18 ::: 42 WP-1051-15 Secretary of respondent no.4 to reconsider the objections raised with regard to development of port/jetty at Alewadi as it is the suitable site North of Mumbai for development of port as the aerial distance between Alewadi site and Tarapur installation is about 7 to 8 kms and not 3 kms as perceived by DAE. The State expressed that it was keen to develop port at said site as it may form part of Delhi - Mumbai Industrial Corridor which will enable the State to get the benefit of Dedicated Freight Corridor between Delhi and Mumbai. They also requested the respondent no.4 to prescribe any additional safety measures which may be required. Again, respondent no.4 sought recommendations and views from various authorities as stated above. The Central Agency in response to the above request informed that Government of Maharashtra can reconsider the proposal subject to certain conditions which, inter alia, included no foreign vessel should be allowed to call on for any purpose, and that the activities at the jetties should be carried out under the supervision of responsible officer of Government of Maharashtra. After securing responses from various Authorities, 4th respondent Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:18 ::: 43 WP-1051-15 issued NOC to Government of Maharashtra by letter dated 18th April 2012 stating that the matter was examined afresh in consultation with various authorities, and after taking into considerations of security as well as safety aspect of respondent no.4, installations at Tarapur DAE has no objection for the proposed project of Alewadi port/jetty if it is developed beyond south side of Dandi village with certain conditions and activities/works at the port needs to be checked with certain aspects in terms of the letter. 45 In rejoinder affidavit to the affidavit of respondent no.2, petitioner contends that MMB is required to act under the instructions and decisions of respondent no.2 being a Minister of Ports as the Chairman. Under those circumstances, in the order dated 8 th January 2014, the Court recorded that the second respondent had informed the Court that the process of appointment (of a developer for Alewadi Port) had not begun, and that, in any case, it was not possible to appoint any person within three months. Therefore, a direction was given to respondent no.2 to decide the Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:18 ::: 44 WP-1051-15 petitioner's application to grant LOI for the development of the Alewadi port. However, in the year 2009, the application made by respondent no.3 for setting up an All Weather Captive Port at the said location was also addressed by them to the Minister of Ports. The petitioner further contends that All Weather Port is completely distinct from a jetty, captive or otherwise and the two have also been dealt with separately under the Policies/Guidelines of the Government. They categorically denied that ports and jetties have similar purpose of handling cargo and vessels. They have also denied that many elements of infrastructure such as wharf, approach channel and maintenance dredging, handling gear, break water, ancillary facilities may be common to both. According to the petitioner, surreptitiously while delaying the consideration of LOI to the petitioner with regard to "Alewadi Port", granted permission to respondent no.3 to set up an All Weather Port at Nandgaon. An All Weather Port should have large tranquil harbor/water area in which a number of jetties and berths can exist. Whereas a jetty is located in protected waters. The captive jetties can also handle cargos of third Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:18 ::: 45 WP-1051-15 party. Therefore, the distinction between captive jetty handling cargo of a specific industrial unit and the port which handles cargo generally is lost. The lease deed dated 3 rd December 2011 read with the plan issued in favour of respondent no.3 indicate permission to construct only a single long jetty and the modification lease deed dated 4 th April 2013 records that the jetty could only be operational 220 days or less in a year. This also provided construction of a North and South breakwater to provide necessary tranquility inside the port area. The lease deed also refers to granting permission by respondent no.1 for setting up and establishing an All Weather Captive Port facility along with necessary back up infrastructure. Therefore, it is clear that what had been proposed by respondent no.3 and permitted by respondent nos.1 and 2 was not a mere 'jetty', but a large all Weather Multipurpose Port with a capacity and dimensions substantially greater than the petitioner's proposal.
46 The MMB decided not to proceed with the development of Alewadi Port in view of DAE's objections, Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:18 ::: 46 WP-1051-15 however, the 2nd respondent directed MMB in 2010 to proceed with the development/call for fresh TEFS Report from interested parties, and had taken up the matter with the DAE for reconsideration. The petitioner's proposal was kept pending, but entertained application of respondent no.3 to set up an All Weather Captive Port in the form of an extended jetty/ Southern breakwater at Nandgaon which is a mile south of the petitioner's proposed Alewadi Port. In 2012, NOC for setting up of a port was obtained from DAE subject to some conditions including the exclusion of foreign cargos. Under these circumstances, according to the petitioner, respondent no.2 made a submission to the High Court on 8 th January 2014 that process of appointment of a developer for Alewadi Port has not yet begun, and it is not possible to appoint any person within three months. Before respondent no.2, MMB falsely contended that in view of DAE's objection, MMB had decided at its 51st Board Meeting in June 2009 to cancel or not to proceed with the Alewadi project. The order of respondent no.2 on both aspects denying the petitioner an LOI to develop Alewadi port only on the ground that MMB Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:18 ::: 47 WP-1051-15 had in 2009 decided not to proceed with Alewadi Port and holding that respondent no.3 had only been permitted to set up a Captive Jetty at Nandgaon on the Southern side of Alewadi is ex-facie perverse, discriminatory and arbitrary. On the other hand, petitioner was the only party which had submitted revised/updated TEFS to MMB within the time stipulated. The observation of respondent no.2 that it would not have been legal and proper to consider the petitioner's application since Port Policy of 2010 required competitive bidding is ex-facie incorrect, and appears to be part of respondent nos.1 and 2's efforts to stop the application of the petitioner while discriminatorily favouring respondent no.3. Since application of the petitioner was made much prior to new Policy of 2010, announcement of Policy of 2010 did not result in the abrogation of the old policy. In fact, the Environmental Impact Assessment report of respondent no.3 and the clearance showing the proposed All Weather Port, by renaming the same as 'captive jetty' cannot change the position that the capacity of respondent no.3's project is larger than the petitioner's proposed Alewadi port having Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:18 ::: 48 WP-1051-15 multiple berths and a dimensions.
47 So far as affidavit in rejoinder to respondent no.3's affidavit, petitioner contends that the area covered by Government of Maharashtra's tender of 1996 for Alewadi Port covered a large area from 19° 44' 24" to 19° 50' 44" more than six nautical miles north to south.
48 The third respondent's application and TEFS report of 2011 fixed the location of their All Weather Captive port at 19° 46'. The breakwater/jetty permitted was located at 19° 45' 20" which arched northwards approximately half a nautical mile. In the mean while, MMB's Modification of the lease in 2013 comprised a tranquil water area enclosing 19° 46' and North breakwater located at 19° 47'. Therefore, the third respondent's All Weather Port purported to be permitted almost overlaps the area of the petitioner's proposed Alewadi port. Maharashtra Coastal Zone Management Authority (MCZMA) recommendation to MOEF of JSWs All Weather Multi Cargo Port refers to it as located between 19° 45' 44"
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and 19° 46' 30", having North breakwater of 6.5 kms, a
South breakwater of 5.2 kms and 6 berths for solid cargo handling, a dedicated berth for coal and three berths for liquid cargo, LNG and chemicals.
49 In the additional affidavit of respondent no.1, it is stated that the footnote of performance audit of CAG reflects understanding of the difference between a jetty and a port by CAG, cannot be of any relevance since the understanding of CAG is contrary to the factual position. Further, it is not an appropriate body to distinguish the basic/fundamental integrities of the maritime industry. The availability of a jetty or port is purely an operational matter depending upon fair or foul weather. One can have all weather jetties with break waters as well as ports which may not have breakwaters or be operational throughout the year.
50 The purpose of a breakwater is to prevent the jetty or port from exposure to rough wind/seas which make the jetty or port vulnerable to the weather. Therefore,the need of Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:19 ::: 50 WP-1051-15 breakwater depends upon the geographical location of a jetty or a port and is not a ground for distinguishing a jetty from a port or vice-versa. Mere existence of breakwater does not mean that a jetty is a port or vice-versa. They also narrate illustrations of some ports and jetties with or without breakwaters, while Mumbai Port is a natural harbor and does not require any breakwater, similarly, Dighi port because of protection provided by cliff/hill from south westerly direction, it does not require a breakwater. The old jetty of MMB at Bhagawati Bunder, Ratnagiri which is now run by a third party is open to weather and has a breakwater. Respondent no.3 proposed to construct two breakwaters i.e. one in South and other in North to make the captive jetty facility operational for more than 220 days in a year since unless tranquility inside the area for optimal utilization of Captive Facilities is made, the jetty cannot be utilized to optimum level. Hydrodynamics and soil profile of the area suggested that the base of southern breakwater be shifted northwards. Therefore, proposal of the modification lease deed in favour of respondent no.3 was accepted.
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51 In the additional Affidavit of respondent no.3, it
took a stand that maritime boards of various states have allotted captive jetties to investors which are "All Weather" in nature. Gujarat Maritime Board has given several such All Weather Captive Jetties. Captive Jetties can also handle third party cargos, and Gujarat Maritime Board had granted such permission to Essar Bulk Terminal and others in Gujarat. According to them, if third party cargos are to be handled, it will have to do so with the prior permission of the MMB, and if permission is granted, respondent no.3 is required to bear the existing cargo related charges payable to the Government. CAG is not the authority to declare as to whether captive jetties can or cannot operate All Weather, therefore, credence cannot be given to their report.
52 They further contend that magnified Navigational Chart No.210 published by the National Hydrographic Office, Dehradun, plotting the relevant locations/sites and distances in question, clearly indicate following.
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(i) Encircles 5 km radius of sterile zone from
Tarapur reactor
(ii) The lines of the port limits of Alewadi as per
the instructions to Bidders issued by the Government of Maharashtra, Commissioner Water Transport, May 1996 (page No.618 of Petitioners Rejoinder dated 6th November 2015);
(iii) The limits of Nandgaon allotted to respondent no.3 as per the respondent no.1's affidavit dated 2nd December 2016 read with the plan annexed to the amended Lease Deed executed between Respondent NO.1 (Maharashtra Maritime Board) and respondent no.3 (page Nos.1204 - 1205 Exhibit C to Respondent NO.1's affidavit dated 2nd December 2016).
53 It further says that the distance from Tarapur Atomic Power Station is 5 kms as encircled on the annexed chart. The north limit of Alewadi Port is within the 5 kms of sterile zone of TAPS) Discussion and reasoning:-
54 With the above pleadings and contentions, what exactly one understands from 1995 captive facility policy which was modified from time to time. We also have to analyze what is 1996 port policy and what are the modifications made to it?
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55 One has to see under which policy the case of the
petitioner falls and similarly to which policy the case of respondent no.3 is attracted. In terms of G.R dated 26 th June 1995, privatization of non-major ports in Maharashtra (Captive Jetty facility) to encourage participation of private sector for the development of the port in terms of new industrial policy, the policy was evolved. 56 However, the privatization of minor ports in State of Maharashtra as a Captive Jetty facilities for port development has to come through Water Transport Commissioner. The private component is required to prepare general outline of construction of jetty. They also have to prepare hydraulic calculations in consultation with Central Water and power Research Station (CWPRS) and then, seek approval from the Water Transport Commissioner. It is also the responsibility of the private component to get the design approved from the consultant appointed by the MMB. If Captive Jetty facility were to be extended to third parties (other industries) the same has to be with prior permission of Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:19 ::: 54 WP-1051-15 Water Transport Commissioner subject to other terms and conditions, including the charges/taxes, fee payable. The main character of 1995 Captive Policy was to give Captive facility to private entrepreneurs which could be made use for its industry. On 19th August 2005, the Government of Maharashtra issued a resolution thereby amending the policy in respect of captive jetties providing that permission would be granted to developers to handle third party cargo, in addition to the handling of their own cargo from captive jetty, subject to the rates fixed for handling third party cargo i.e. 1.5 times than the rates fixed for captive jetties. Further, such permissions would be applicable till the period of agreement entered with the MMB in respect of captive jetties. 57 Additional criterion was that such benefit would be binding only upon the entrepreneur who have already entered into an agreement prior to the issuance of such resolution. Since third respondent secured LOI only in 2011, and there was no agreement prior to 19 th August 2005 in favour of third respondent for captive jetty, the benefit of Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:19 ::: 55 WP-1051-15 handling third party cargo automatically would not come to the benefit of the third respondent unless they take prior permission from respondent nos.1 and 2. Subsequently, on 20th November 2005, the Government Resolution sets out the duration with the entrepreneur of captive jetties which has to be indicated in the agreement and the captive jetty has to be constructed on Build, Operate Transfer (BOT) Basis. 58 So far as 1996 Policy, Government of Maharashtra has enacted Maharashtra Maritime Board Act, 1996 to make provisions for establishment of MMB for minor ports in State of Maharashtra and it is vested with the administration, control and management of special ports. So also to provide for matters connected therewith and incidental thereto. MMB was established on 17th January 1996 in terms of Section 3 of the MMB Act and Minister of Ports is Ex-officio Chairman. In terms of Section 24, MMB has power to enter into contract for lease, and specific provision under Section 24B and 24C of the MMB Act says that no contract for leasing waterfront, jetty, waterway, and corresponding infrastructural Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:19 ::: 56 WP-1051-15 facilities thereof for a term exceeding 5 years shall be made unless it is previously approved by the Government on such terms and conditions as it may think fit. Further, no contract for the acquisition of sale of immovable property or for the lease of any such property for a term exceeding 30 years, shall be made unless it is previously approved by the Government on such terms and conditions as it may think fit. It is also not in dispute that State Government lays down frame work of the policy, be it captive jetty, or multipurpose ports, but the day to day administration in terms of the respective policy is regulated by the MMB. 59 On 15th March 1996, Government of Maharashtra came out with a policy in respect of development of minor ports through public tender process. In other words, it laid scheme for down growth and development of multipurpose ports. Initially, seven ports were enlisted including Tarapur in Thane district. In the month of May 1996, instead of Tarapur, Alewadi was chosen as a suitable site. Global tenders were invited for development of Alewadi port after Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:19 ::: 57 WP-1051-15 carrying out Techno economic feasibility survey through its Engineering department. However, there was no positive response. Mean while, in the month of November 2000, Government of Maharashtra issued notification for development of Dighi and Rewas Ports with an understanding with private developers on the basis of BOOST. The purpose was to develop the ports in time-bound manner. 60 Subsequently, by Government Resolution dated 15th March 1996 and 28th November 2000, policies were amended on 24th April 2002 providing for specific terms of agreements to be entered into with the port developers. The Government of Maharashtra issued a revised port policy for promotion of green field ports/multipurpose jetties/cargo terminals on 20th August 2010 inter alia providing as under :
"The concessions under the 2010 policy shall also be applicable to the existing (where concession agreement have been extended) Greenfield Port Projects, Cargo Terminals (Ro-Ro services) and Multipurpose Jetties for the remaining works for a period of 5 years from the date of signing of an amended agreement to that effect".
Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:19 ::: 58 WP-1051-15 These concessions shall also be applicable to projects of Multipurpose Jetties/Cargo Terminals to be set up in future.However,Wharfage charges would be levied for Cargo Terminals (Ro-Ro services) and Multipurpose Jetties in a different manner and shall be promulgated separately through a Notification.
The procedure for selection of Developers for the Multipurpose Jetties and Cargo Terminals (Ro- Ro service) will be governed by the existing 2005 G.R and shall have the same concession period as mentioned in this Resolution.
The annexure to the GR provided as under:
Procedure for selection of Port Developer (New Port Projects) Expression of Interest (EOI) should be called for selection of the port developer instead of directly taking the MOU route.
Developers should be selected through a transparent process of bidding from financially capable and truly interested bidders in Port Development coming through EOI. The standard concession document of the Central Government should also be referred to for this purpose.
If required response is not received from EOI, then MOU route should be followed.
Letter from State Government to CEO, MMB stating that instead of selecting person through MOU route it should invite expressions of interest. It refers to the DAE letter dated 29.09.2009 and states that the onus of taking clearances from DAE will be on the Port developer. It further states that only after receiving all clearances should development of port begin.
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61 On 4th February 2016, New Port Development
policy of 2016 was introduced by a Government Resolution. In the said policy, different sections are provided for (i) Greenfield Ports and connectivity (ii) Jetties provided for Captive Jetty (3) MMB owned Jetties and multipurpose Jetties. In terms of 2016 policy, captive jetty can handle third party cargo subject to following conditions :-
(i) Cargo from the third parties should not exceed 25% of the total cargo handled by the captive jetty in a year.
(ii) The charges applicable on the cargo handled for third parties will be 1.5 times the charges specified the rates.
(iii) There is no non-major port available, with desired facilities, within a distance prescribed by the MMB through notifications.
62 From the above material placed on record, it is seen that 1995 Government Resolution is in respect of privatization of minor ports in Maharashtra (including captive jetty facility) and 1996 Policy is in respect of construction of multipurpose ports for growth and development of ports. From time to time, as indicated above, the policy of the Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:19 ::: 60 WP-1051-15 Government was changed in respect of both captive facilities as well as multipurpose facilities. It is made clear on more than one occasion that in the policy of Government Resolution dated 15th March 1996, Government Resolution date is mentioned as "6th June 1995" instead of "26th June 1995".
63 According to the petitioner, under the guise of captive jetty port facility (All Weather facility) is granted in favour of third respondent in order to scuttle the project of the petitioner. According to the petitioner, there was a concluded contract in their favour and therefore, indirectly to overcome the said contract, Nandgaon location is chosen so far as respondent no.3 is concerned, and ultimately, in view of the policy restricting two ports working within a distance of 5 kms, petitioner's proposal cannot be granted. Therefore, by entering into lease agreement with third respondent, the right accrued in favour of the petitioner is interfered with.
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64 According to the petitioner, respondent no.3
applied for All Weather Port which in fact, meant to be all purpose in the month of February 2011 at a latitude 19° 46'. They also referred to the lease deed entered into in December 2011 to show that the long strip at Nandgaon as indicated at page nos.67, 71 and 72 of the writ papers indicating that stage by stage, the so called captive jetty became All Weather Port. It is nothing but same project for which petitioner acquiesced a right since petitioner was the earlier applicant than the third respondent. It is further contended that this is clear from the conduct of the parties, especially modification terms of lease deed in April 2013 allowing setting up of a port. According to the petitioner, throughout the documents, it is referred to as 'port', therefore it was not at all a captive jetty in fact.
65 It is also contended on behalf of the petitioner that the DAE's objection raised in 2009 as one of the reasons against the proposal of petitioner, is ex-facie perverse, arbitrary and discriminatory because the so called DAE's Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:19 ::: 62 WP-1051-15 objection of 2009, and the decision of MMB not to proceed with Alewadi project in June 2009 in 51 st Board Meeting is only a ruse to deny the petitioner's claim since the development of Alewadi port remained under active consideration of the Government as well as MMB even after 2009. They rely upon the correspondence between the Government and DAE in 2010, 2011 and contend that the very fact of DAE reviewing its decision in 2012 by communication dated 18th April 2012 indicating its NOC for the development of Alewadi port subject to certain conditions would indicate Alewadi port proposal was alive. Therefore, according to them, both MMB and Government by April 2013 permitted the respondent no.3 to set up a full fledged port at the very same location proposed by petitioner under the guise of permitting captive jetty in favour of third respondent. 66 In order to appreciate these contentions of the petitioner, we have to see whether there was malafides and systematic exercise on the part of the first and second respondents as contended by the petitioner to set at naught Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:19 ::: 63 WP-1051-15 the project of the petitioner by granting captive jetty facility to third respondent (in fact meant to be a multipurpose port as contended by the petitioner). We also have to see whether petitioner had any concluded contract in its favour so far as multipurpose port proposed by them way back in 2007. We also have to see whether there is direct or indirect assurance on behalf of respondent nos.1 and 2 that petitioner would be getting sanction for multipurpose port at Alewadi. Whether there was conscious and genuine decision on the part of the MMB to take a decision in its 51 st Board Meeting not to proceed with Alewadi project in view of DAE's objections also to be seen. We also have to see whether granting permission to have two breakwaters South and North in favour of the third respondent would automatically mean,the infrastructure meant for a port is granted in favour of third respondent, therefore, under the guise of captive jetty, third respondent would be running a multipurpose port. Whether the contention of the respondent nos.1 to 3 that the words "jetty" and "port" are interchangeable, and they are loosely termed not only in the documents pertaining to the controversy Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:19 ::: 64 WP-1051-15 before us, but also in several projects of Maritime Board all over the country including Mumbai and other projects. 67 Based on the pleadings of the parties, we also have to examine whether there is delay and laches on the part of the petitioner in approaching the Court, and whether by conduct of the petitioner i.e. concealing several facts which were within its knowledge, has not come to Court with clean hands in the first round of litigation intentionally by not making third respondent as a party to the proceedings. According to respondents, on account of malafides on its part, petitioner is not entitled for any of the reliefs sought in the present petition. They further contend that even in the present litigation, many material facts are concealed by the petitioner.
68 Coming to the proposal of the petitioner, it is not in dispute that a tender notice was issued by Government of Maharashtra inviting global tenders, but there was no positive response. Though the port policy was revised to allow Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:19 ::: 65 WP-1051-15 selection of developers through MOU route, no one came forward so far as Alewadi project till 2006. Development occurred only after the ports at Dighi and Rewas were entrusted for the development. Four potential developers, including the petitioner showed interest in Alewadi port development. Techno Economic Feasibility Study Reports were called from all these developers. Expression of Interest to develop an All Weather and Multipurpose port at Alewadi came from the petitioner in 2007. On 7 th February 2007, petitioner submitted its Techno Economic Feasibility Study Report followed by a request on 25 th February 2007 to issue a formal Letter of Intent. It is also not in dispute that petitioner informed respondent no.1 that they had entered into joint venture with a well known port operator i.e. M/s. International Container Terminal Services. Meetings were held between the petitioner, and Dy. Minister of Ports in the month of July 2007 wherein discussions were held with regard to awarding of LOI. In order to take a decision so far as selection of developer for Alewadi port, reports were got scrutinized through independent agency M/s.Deloitte. In the Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:19 ::: 66 WP-1051-15 48th Board meeting of the MMB, proposal for selection of developer was placed. In the said meeting, Board directed the first respondent to submit the report to State Government and Principal Secretary. Along with the summary evaluation of independent agency M/s.Deloitte, the reports were submitted to State Government. Petitioner gave representation to Hon'ble Chief Minister and other authorities to consider their proposal in the month of December 2007. In the 49th Board Meeting held on 25th April 2008, as per the direction of the Government, the issue of development of Alewadi port was kept before the Board. In the said meeting, it was decided to take the development of the Alewadi port by Memorandum of Understanding route through a High Power Committee (HPC) for approval of the Government. Therefore, discarding the tender process, the MOU route was adopted for development of Alewadi project. 69 It is clear from record that even in the month of April 2008, there was no final decision on the proposal of development of Alewadi port. It was still at the stage of what Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:19 ::: 67 WP-1051-15 route or procedure would be adopted for allowing the development of Alewadi port. Neither first respondent nor second respondent gave any positive accord, consent or approval for development of Alewadi port to the petitioner. A letter dated 29th January 2009 which is in the compilation of documents filed on behalf of respondent no.1 - MMB at page 57, indicate that it was addressed to Chief Secretary, Government of Maharashtra, Mantralaya from DAE, Mumbai with regard to setting up a port/jetty to be developed by M/s.JSW Steel Pvt.Ltd (not the third respondent). In this letter, at paragraph no.2, it is mentioned that Tarapur site of the DAE is located at an aerial distance of 3 kms from the proposed site location, and the said site has four nuclear power plants apart from critical facilities of DAE. The establishment of a port/jetty at Alewadi village, the location proposed by MMB being close to the above coast based installations of DAE, there would be security implications of a grave nature. The nature of material handled, transported vessels and ships visiting the jetty close to the shores of DAE installation, and engagement of a possibly large labour force Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:19 ::: 68 WP-1051-15 would pose security risk and threats to Tarapur site of the DAE. They also expressed apprehension with regard to impact on the nuclear installations if there is to be release of chemicals or triggering of explosives. Therefore, they advised the State Government to drop the proposal for the development of port/jetty at Alewadi village for the reasons stated above.
70 On 18th February 2009, State Government wrote a letter to the MMB to examine the port proposal at Alewadi vis a vis geographical details and discuss the same with DAE. Respondent no.1 was directed to intimate interested developers to submit in writing if they were interested in the said Alewadi project. They were directed to place the proposals before the Board. On 18 th June 2009, 51st Board Meeting was held, the Minister for Ports, Principal Secretary, Transport Representative of Finance, Principal Secretary (Finance), Indian Navy representative, Ashwin Kumar - Chief Executive Officer, Member Secretary were all present.
Agenda item no.13 was with regard to Alewadi port. On
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account of the objections raised by Nuclear Power Department of the Central Government on the proposed development of Alewadi port, it was unanimously resolved that there was no need to take further action for the present. An appropriate alternative site should be thought of to develop a port to the North of Mumbai. Therefore, it is very clear that even on 18th June 2009 there was no concluded contract or even inclination of consent or permission in favour of petitioner. However, Government of Maharashtra continued to follow up the effort to develop a port to the North of Mumbai in order to decongest existing Mumbai port and provide additional cargo handling capacity. Inspite of objection dated 18th June 2009 by DAE, the State Government directed MMB to examine port proposal at Alewadi after discussing the same with DAE. Further directed to seek in writing if developers were still interested in Alewadi project. MMB informed the State Government by forwarding the willingness of 4 interested developers, and all the four entities by different letters had expressed their interest in Alewadi port project. On 11th June 2010, respondent no.2 informed Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:19 ::: 70 WP-1051-15 respondent no.1 that development report of Alewadi port is based on 2002 and 2003, therefore, they directed to obtain fresh report and scrutinize the report through consultants. Petitioner submitted project report on 14th June 2010, and so also M/s.Larsen & Toubro had expressed their willingness for submission of their project report while M/s.Videocon Industries had requested for extension of time for submission of project report. By 20th August 2010, Government of Maharashtra revised port policy for development of non- major ports/multipurpose jetties/ cargo terminals and selection of developers was through competitive bidding process. On 13th October 2010, respondent no.2 directed respondent no.1 to invite Expression of Interest by following new policy of 2010. The Government of Maharashtra made it clear that No Objection Certificate from DAE has to be secured by port developer in view of the objections raised by DAE. Between 16th November 2010 and 9th February 2011, there was correspondence between Government of Maharashtra and MMB with regard to the objections raised by DAE. They were contemplating change of location in view Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:19 ::: 71 WP-1051-15 of DAE's objection regarding security. Such letters are dated 16th November 2010 by Government of Maharashtra and reply is dated 9th February 2011 by MMB to the Government of Maharashtra. Ultimately, feasibility of shifting location of port towards South of Nandgaon by 2 - 3 kms, they were of the opinion that DAE may not have objection, and therefore, they thought of shifting the location towards South to Nandgaon by 2 - 3 kms. Respondent no.1 requested respondent no.2 to take up the issue with DAE. They also made it clear that as per the Navigational Chart No.210 published by the National Hydrographic Office, Dehradun, the aerial distance between Alewadi site and Tarapur installation is about 7 - 8 kms and not 3 kms as perceived by DAE. On 3 rd September 2011, State Government wrote a letter to reconsider the objections of DAE to develop port/jetty at Alewadi. Only on 18th April 2012, DAE gave conditional clearance for development of port jetty at Alewadi/Nandgaon which includes no foreign vessel will be called at the proposed port/jetty. Till this time also, there was no concluded contract between the petitioner and the MMB for Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:19 ::: 72 WP-1051-15 development of port or jetty at Alewadi. Mere calling for Techno Economic feasibility Study Report for the second time from petitioner would not vest the petitioner with any right to say that they had a concluded contract in their favour. Techno Economic feasibility Study Reports were sought not only from the petitioner, but also from other three proposers who showed interest to develop the multipurpose All Weather Port at Alewadi. The proposal of the MOU route was again revisited by revised port policy for permission of greenfield ports/multipurpose jetties and cargo terminals in 2010. Mean while, for the captive use of respondent no.3, the proposal to develop All Weather Captive Port/jetty facility near Nandgaon was granted since they have their steel plants located at Tarapur and Vashind. By this time, MMB suggested shifting of the port location towards Southwards to Nandgaon by 2 - 3 kms. While taking such a decision, the State Government was also pursuing simultaneously to have revisitation of the proposal at Alewadi. On 20 th September 2011, there was approval of the proposal of respondent no.3 to develop captive facility at Nandgaon which was about 3 Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:19 ::: 73 WP-1051-15 kms South of Alewadi in accordance with captive jetty policy of 1995. At many places, in the correspondence lease deed, modified lease, they have used the words "port" and "jetty". Irrespective of user of word "port" or "jetty", ultimately, we have to see what was the proposal of respondent no.3, and what was the proposal of the petitioner. Petitioner was all along interested to develop multipurpose All Weather Port at Alewadi. The proposal of the respondent no.3 is for development of a captive facility whether it is called captive jetty or port and it was at Nandgaon' since they have their industrial establishment i.e. steel plants located at Tarapur and Vashind. Therefore, they wanted All Weather Captive Port/Jetty facility. All along, the proposal of respondent no.3 was only in pursuance of 1995 policy and nothing to do with 1996 policy. Even now, by virtue of the impugned order, the respondent no.2 has made it clear that respondent no.3 will have only the captive jetty establishment in terms of 1995 policy which is revised from time to time in accordance with the guidelines pertaining to captive jetty and not in terms of All Weather multipurpose greenfield port policy.
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71 On 18th April 2012, DAE after required
consultation conveyed clearance for development of port/jetty at Alewadi. By this time, the proposal of the third respondent was fructified into lease deed on 3rd December 2011. At that point of time also, there was no concluded contract or offer in the form of consent or permission either from respondent no.1 or respondent no.2 in favour of the petitioner. Even otherwise, petitioner was not keen to subject itself to revised port policy of 2010 which required tender process for development of multipurpose port. There was no concluded contract for development of a multipurpose port by the petitioner in terms of 1996 policy when respondent no.1 signed a deed of lease in favour of respondent no.3 for development of captive port/jetty at Nandgaon on 3 rd December 2011. The impugned order is not even challenged by respondent no.3 on the ground that they were granted a port development proposal in terms of 1996 policy. Instead, the petitioner is aggrieved by the direction of respondent no.2 to change the word 'captive port' to 'captive jetty' in the lease document between respondent no.1 and respondent no.3.
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This would indicate that from the time of proposal submitted by respondent no.3, till impugned order was passed by second respondent, third respondent was interested in having a captive facility in terms of 1995 policy, and they have nothing to do with 1996 policy.
72 In order to appreciate the stand of the petitioner that the very conduct of the respondent nos.1 and 2 in calling upon them to furnish a techno economic feasibility report even after decision to give up development of Alewadi port in 2009, gave indication that they were still inclined to develop the port. If petitioner were to submit its proposal on the lines of 1996 policy since there was no concluded contract or least assurance on behalf of respondent nos.1 and 2 that the petitioner would be considered favourably and positively for the development of Alewadi port, as on the date of the impugned order passed by second respondent on 27th May 2014, only 2010 Policy was in existence and not 1996 policy. In fact, in 2012, petitioner did enquire whether there is possibility of developing a port between Satpati and Shirgaon.
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This would further indicate that by 2012, they gave up the proposal of development of Alewadi port and were thinking of an alternate proposal. This clearly indicates the petitioner was aware of objections raised by DAE, its inability to effectively run commercial port at Alewadi since they could not allow foreign vessels near Tarapur Power Station. Therefore, they were ready to develop a port between Satpati and Shirgaon. Only in the month of July 2014, they wrote a letter dated 18th July 2014 expressing their unwillingness to relocate to Satpati and Shirgaon. Apparently, techno economic feasibility study report for the same never came to be submitted.
73 Mean while, 2010 revised port policy for permission of Greenfield Port/Multi purpose jetty/cargo terminals was again revised by 2016 to introduce Greenfield Ports and connectivity, Jetties providing for Captive Jetty, MMB owned Jetties and multipurpose Jetties. Therefore, by the time they offered their willingness to develop port at an alternate site in 2012, port policy was changed, and as on Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:19 ::: 77 WP-1051-15 today, there is port development policy of 2016. The clearance from DAE subsequent to 2010 policy indicate that no foreign vessel is allowed and Expression of Interest is to be called and not Memorandum of Understanding. Apparently, petitioner was intending to start a multipurpose port (commercial port at Alewadi). Since foreign vessels cannot be allowed within certain radius from Nuclear power plant, there is no question of any commercial port functioning near Alewadi. Even if petitioner were to seek development of a port at alternate site, it can be only in terms of the existing policy.
74 It is also clear from the record that now the captive jetty facility of respondent no.3 is at Nandgaon having breakwaters. Therefore, we are of the opinion it may not be possible to allow any port/jetty being developed near Alewadi for commercial purpose. There is one more reason which goes against the petitioner. The petitioner is a Private Equity Fund and is engaged in the business activities of venture and capital Investment. Apparently, it is incorporated under the Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:19 ::: 78 WP-1051-15 laws of United Kingdom, and is engaged in the business of investment and development of infrastructure. Petitioner has only a correspondence address at Mumbai which is clear from the affidavit of respondent no.3, and also the supporting documents. When the petitioner's main interest is to make a commercial port for container handling in collaboration with ICL Financial Services Ltd and ICD Terminals, Inc. (both foreign companies), there is nothing on record to show that these two companies who were interested to invest major portion of money for the Alewadi project in 2007 are still interested to take the project as a joint venture. It is also petitioner's case that International Container Terminal Services Inc (ICTSI) was to operate the port on completion of the proposed Alewadi port. There is nothing on record to show that this port operator continued to have interest in the Alewadi project as on today.
75 It is pertinent to note that till reply affidavit of respondent nos.1 to 3 came to be placed on record, the petitioner did not even whisper about the existence of 1995 Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:19 ::: 79 WP-1051-15 captive facility policy of the Government of Maharashtra. At page 456 of MMB's compilation of documents annexed to their reply affidavit, policy of 1995 dated 20 th June 1995 is placed on record. In the introduction, it is said that Konkan region being a difficult territory for transport, water transport is an important facility for the development of minor ports. Port facilities have received unique importance for industrial use as also for rapid development of Konkan region. Participation of private sector for the development of the port in the new industrial policy was encouraged considering the availability of funds, advanced technology and essential machinery to create facilities for the development on the 48 ports exist on the coast line. Expected response was received from private entrepreneurs and the Government was contemplating what facilities should be created for the private entrepreneurs, and what should be the terms and conditions for the use of the ports. After great discussion, the decision to execute prescribed agreement with the Water Transport Commissioner by the private component, came into existence.
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76 At clause (d), it says that ownership of the jetty
shall be with the Government, but the jetty shall be given to a private Company on lease or licence for 25 to 30 years, subject to terms and conditions including permission to give the facility of jetty to other industrial units for use with the prior permission of Water Transport Commissioner. 77 The resolution governed by 2010 Policy G.R. dated 20th August 2010 indicate that after detailed discussion with all the stakeholders involved in the process of development of maritime activities, existing policy frame work of other adjoining states like Karnataka, Andhra Pradesh was examined, and comprehensive changes were made and a revised policy frame work was placed before the cabinet which approved the port policy of 2010 applicable to the new greenfield ports/cargo terminals and multipurpose jetties. It further says that the procedure for selection of developers for the multipurpose jetties and cargo terminals will be governed by existing Government Resolution dated 19th August 2005. Apparently, the multipurpose jetties would mean jetties other Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:19 ::: 81 WP-1051-15 than having captive facility which can be used for various purposes just like multipurpose port. The third respondent is now given the facility of All Weather Captive Jetty. No doubt, in terms of Government policy, third respondent can also permit handling third party cargo subject to payment of prescribed fee and also permission of MMB, apart from other terms and conditions like restriction on foreign vessel within a particular radius from Tarapur Power Station on account of security reasons. The case of the third respondent is not a stand-alone case providing captive jetty facilities. As stated above, several industrial entities are given such facilities by Maritime Board not only in the State of Maharashtra, but also by Maritime board in the neighboring States - Gujarat, Karnataka and Andhra Pradesh. The details are already referred to above.
78 The location of Nandgaon is chosen by the third respondent because of existence of its industrial units at Navapur and Vashind etc. One cannot find fault with the entrepreneur to take advantage of the captive facility in terms Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:19 ::: 82 WP-1051-15 of existing policy of the government if it were to be cost effective so far as the private entrepreneur is concerned. It is also policy of the State that industrial policy should comprehend with the maritime policy so as to assist the State Government to boost the economy of the State, so also to encourage private entrepreneurs to undertake captive facility which would be cost effective, both for the State and the private entrepreneur. Captive facility is permitted only if they were to have industrial unit which require import and export of raw material and also other related activities. The very term 'captive' means the usage and benefit is restricted to that particular private entrepreneur, therefore, it would not be out of place to opine that primarily the captive jetty benefit was to boost the private entrepreneurs to come forward to have captive jetties on the Konkan coastline to benefit their industrial units. Every private entrepreneur may not be interested in seeking captive facility due to various reasons including financial burden. Therefore, if smaller industrial units which are not capable of having their own captive facility and were to depend on captive facility given to a Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:19 ::: 83 WP-1051-15 private entrepreneur, subject to terms and conditions evolved by the policy makers, one has to appreciate the forward step of the State for encouraging the development of industries by providing such facilities. Therefore, the charges for allowing third party to a particular percentage of handling is altogether at a different rate from the normal rates for handling cargos. The policy of the Government regulated through MMB clearly indicate captive facility was primarily meant for the benefit of private entrepreneurs for the purpose of its own industrial use, but later, extended the same to a particular limit for the use of third parties. Therefore, captive facility sanctioned to third respondent cannot become a commercial cargo venture equivalent to the proposal of the petitioner by merely allowing it to handle third party cargo in terms of revised policy of the State.
79 It would be relevant to refer to the decision of larger Bench of the Supreme Court in Villianur Iyarkkai Padukappu Maiyam Vs. Union of India 1 The lis pertains to 1 2009 (7) SCC 561 Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:20 ::: 84 WP-1051-15 challenge to contract for development of a port at the instance of Government of Pondicherry inviting Expression of Interest for preparation of feasibility study report for development of Pondicherry Port. Several parties responded for the development of Pondicherry port including "S" seeking permission to participate in the process of development of port. On account of paucity of funds, Government accepted offers and awarded contract for development of the port to "S". A person who had neither participated in the process of selection of consultant/developer of land, nor had expressed desire to develop the port, filed Writ Petition before the High Court challenging the award of contract in favour of "S" on the ground of arbitrariness. It was also contended by the said person that the award of contract was contrary to the earlier decision of Government to get feasibility report before taking development of the port. Various other issues with regard to Impact of the Project on the Environment on the ground of interest of the local people were raised. Their Lordships opined that the State in a given situation may chose to change its earlier policy if it turns out to be advantageous for the Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:20 ::: 85 WP-1051-15 State to do so. In such situation, State would not be committing breach of any constitutional obligation. They further opined that State is not obliged to tell respondent therein :
"please wait I will first advertise, see whether any other offers are forthcoming and then after considering all offers, decide whether I should get the port developed through you"
80 The State must be free in such a case to negotiate with the private entrepreneur with a view to induce him to develop the port. Under such circumstances, the Court must only see whether the State had acted out of improper or corrupt motive, or was interested to promote the private interest of a private entrepreneur.
81 In the present case, the issue of captive facility to be provided to private industrial units was in existence right from 1995. In order to develop the Mumbai - Delhi Express Corridor, the State also was pursuing development of non- major ports and one of them was Navapur and not even Alewadi. On account of security reasons concern raised by Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:20 ::: 86 WP-1051-15 DAE, MMB abandoned proposal of Alewadi. However, State Government was still pursuing Alewadi proposal. Therefore, between 2009 to 2012, respondent nos.1 and 2 were not able to pursue the proposal of Alewadi. Mean while, third respondent proposal came for captive port, their requirement being primarily their own industry. Even if the third respondent had asked for multipurpose port/All Weather Port/Captive Port, ultimately their request was considered in terms of 1995 Port Policy of the State to provide captive facility. We do not find any improper or corrupt motive on the part of the State or MMB in approving the project of the respondent no.3.
82 Whether the interchangeable word as contended by respondent nos.1 and 3 i.e. 'jetty' for 'port', 'port' for 'jetty', and permission to have two breakwaters for the purpose of tranquility to make the captive facility of third respondent workable or usable atleast for 220 days in a year would amount to expansion of the facility extended to third respondent.
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83 Was it only to encourage respondent no.3 on the
part of the respondent no.1 to discourage the proposal of petitioner? The contention of the petitioner is that jetty would mean a long pier, and there is no need to have breakwaters. They mainly rely upon the footnote of performance audit submitted by Central Audit General which is part of petitioner's compilation of documents filed along with affidavit in rejoinder at page nos.1009 to 1011. 84 Whether the opinion of CAG officer or their understanding would decide the controversy of the third respondent being a captive facility or the multipurpose facility. We should refer to the material placed on record by respondent nos.1, 2 and 3. MMB is justified in saying that CAG is not the expert to give opinion how one should understand the difference between a jetty and a port. Apparently, MMB is the authority who deals with the regulation and day-to-day administration of non-major ports. According to them, one can have All Weather Jetties with Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:20 ::: 88 WP-1051-15 breakwaters, and similarly, there can be ports which may not have breakwaters or be operational throughout the year. Breakwaters would mean a construction or a facility which would be capable of preventing the jetty or port from its exposure to wind/rough water, thereby preventing the jetty or port exposed to rough water making the jetty or port vulnerable depending upon weather conditions and nature of water. There is possibility of having jetty or port without any breakwater. It could be in a situation where there is a natural hill or a cliff which prevents wind, thereby there is tranquility in the water. If jetty or port were to function without breakwater in the absence of natural protectors, it may not be possible to utilize jetty or the port to its optimum level since there would be constraints and restraints. Geographical location of a jetty or port would decide whether there is a need for breakwaters, but mere provision of breakwater may not decide the factor, whether it is a port or jetty. Therefore, mere existence of a breakwater would not make a location a port or jetty. Breakwater is a requirement which mainly dependent on the geographical requirement.
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85 According to the petitioner, third respondent is
proposing and having been permitted to set up the multipurpose All Weather Port which is substantially larger than the petitioner's proposed Alewadi port. To substantiate this contention, they refer to the proposal of 2011 of respondent no.3 where it was All Weather Captive Port. They also refer to lease deed dated 3 rd December 2011. But the allotment is for a jetty for captive use. They also refer to the Deed of Modification dated 3rd April 2013 executed between MMB and 3rd respondent to show that land was leased for "setting up and establishing an All Weather Captive Port facility along with necessary backup Infrastructure and other relevant facilities". Therefore, All Weather Port with North and South breakwaters, and multiple berths/jetties in the enclosed tranquil area was given is the contention. They also contend that mere changing words "Captive Port Facility" in the lease deed with the words "Captive Jetty", it would not mean it is a captive jetty since in fact it is captive port facility because it has facility of North and South breakwaters.
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86 Report of CAG on MMB's activities, was mainly
relied upon by the petitioner to opine that Captive jetties are to be for the exclusive use of the concerned industry and are not to be operational during the monsoon. CAG says that a "Jetty" is a single pier or wharf jutting out into the water and used for berthing vessels and also loading and unloading of cargo. A jetty is not protected by breakwaters and mainly is not operational during the monsoon. They also opine that in some cases, jetties are located in naturally protected waters, and they can operate even during the monsoon months. This means jetty can be operated in monsoon if the location is naturally protected i.e. hill or cliff as stated above. A Port in contradistinction, according to CAG, has a large area of tranquil water either natural or created by erecting breakwaters having a number of berths/jetties with all infrastructure facilities needed for operation of the port. 87 The illustrations given by first respondent, with regard to some ports and jetties with or without breakwaters, Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:20 ::: 91 WP-1051-15 would establish and clarify the factual position. They are Mumbai Port - a natural harbor which does not require breakwaters. Similarly, port at Dighi because of protection provided by cliff/hill from south westerly direction, it does not require a breakwater. The old jetty of first respondent at Bhagawati Bunder, Ratnagiri being open to weather in fact has a breakwater. The photographs of the said jetty is exhibited at Exhibit-B at page 1126 to the additional affidavit of MMB filed on 5th July 2016. According to third respondent, they have never suppressed any fact, and they say that they did ask for an All Weather Captive Port facility at Nandgaon by their application dated 2nd February 2011. Apparently, respondent no.1 never replied to respondent no.3 that such a facility would be ultra vires to the MMB Act or 1995 policy. On the other hand, on 20 th November 2011, respondent no.3 was permitted to set up All Weather Captive Port. On 19th October 2011, respondent no.3 conveyed approval to set up an All Weather Captive Port facility. According to them, the words "jetty" and "port" have been used interchangeably in the 1995 policy. Apparently, there is Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:20 ::: 92 WP-1051-15 nothing on record either by way of policy or procedure or decision of respondent no.1 that there cannot be a jetty which can be All Weather. On the other hand, material goes to show that Gujarat Maritime Board has allotted All Weather Captive jetties to various industries like Essar Bulk Terminal (Salaya), Dahej Harbour Infrastructure Ltd, Ambuja Cements Ltd etc. which are annexed to additional affidavit of respondent no.3 dated 29th June 2016. The word "All Weather" cannot be equated with the word "All purpose" or "multipurpose". All Weather means it can be functional through the year if needed. Therefore, respondent no.3 is not the only Company which is given All Weather Captive facility. They are given permission to develop captive facility at Nandgaon which is about 3 kms South of Alewadi in accordance with captive jetty policy of 1995. The policy clearly indicate the words "port" and "jetty" are interchangeable, and in fact, were used interchangeably. According to respondent no.1, respondent no.3's proposal to construct two breakwaters, one in South and one in North was only to make captive jetty facility operational for more than 220 days in a year, since the Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:20 ::: 93 WP-1051-15 industrial unit of respondent no.3 work throughout the year. Therefore, one cannot find fault with them if they were to make the captive facility operational, whether you call as a captive port/captive jetty functional for more than 220 days in a year. After considering the request of respondent no.3 which is mainly based on the scientific survey and opinion i.e. on the basis of Hydrodynamics and soil profile of the sea, they decided to shift the base of the southern breakwater towards northwards. This was accepted by the MMB. 88 It is pertinent to mention at this stage, there was no concluded contract in favour of the petitioner. Even if we presume that the captive facility now granted to respondent no.3 would be operational and functional, equivalent to a port, one has to see whether any vested right was in existence in favour of the petitioner at the relevant point of time when the proposal of respondent no.3 was accepted, fructified into agreement, lease deed and modification of lease deed, etc. From the material placed on record with regard to allegation of respondent no.3's project, not being a port within the Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:20 ::: 94 WP-1051-15 notified limits of port under the Indian Ports Act as contended by the petitioner, it is seen apparently, is within the Navapur Port, which is a notified port. Item nos.19 and 20 of the First Schedule which is notified as "Port" under Part X of the First Schedule of the Indian Ports Act refer to Navapur and Tarapur. Prior to notification dated 15 th February 1996, Navapur was notified as a port under Section 5 of the Indian Ports Act. On the other hand, Alewadi has never been notified as a port under Indian Ports Act, 1908. In clause 2.1.2 of the tender notice, as could be seen from petitioner's compilation, port limits of Alewadi Port was still to be notified. Before anything could happen, the proposal for development of Port at Alewadi was unanimously abandoned in the 51st Board Meeting on account of DAE's objection. In the initial plan submitted by respondent no.3 for the waterfront, the storage area for the port was envisaged to be located on the shore. After verification, when they found that the land near the coastline was not available due to various local reasons, they addressed a letter to respondent no.1 on 25th January 2013 requesting to permit them to reclaim the Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:20 ::: 95 WP-1051-15 inter-tidal area. The modification of the lease deed in April 2013 is with regard to waterfront area, and there was no change so far as user of the port as captive facility. The captive port or jetty was only for the respondent no.3 cargo, so far as third party cargo, it can handle only with prior permission of MMB subject to other terms and conditions. From the documents placed on record by MMB pertaining to Gujarat and other neighboring states as well as the material placed on record by respondent no.3, it is clear that by mere existence of breakwater, one cannot call the project as a multipurpose port. It can never be changed from captive facility to multipurpose facility because of it being "All Weather". Similarly, by loosely using the words "jetty" and "port" also cannot make the facility provided to respondent no.3 as multipurpose facility (like a commercial port) since it was always meant to be captive facility, and it is now made an All Weather Captive facility in terms of 1995 policy which is revised from time to time.
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89 Whether the location of the proposal of petitioner
and respondent no.3 would overlap? Apparently, from the
plan and map provided by the petitioner and the MMB, there is likelihood of overlapping of the area so far as All Weather Captive Facility extended to respondent no.3 since the North breakwater permitted would cover a portion of area proposed by the petitioner.
90 In the absence of a concluded contract, even to think that petitioner falls within the arena of doctrine of legitimate expectation, in the present petition, one has to see what exactly the doctrine of legitimate expectation, and when it can be invoked. In the voice of Apex Court reported in the case of Ram Pravesh Singh and others Versus State of Bihar, (2006) 8 SCC 381, legitimate expectation is not a legal right. It is only an expectation of a benefit, relief or remedy that may ordinarily flow from a promise or established practice. In order to attract the definition of legitimate expectation, apart from the expectation, it should also be reasonable, logical and valid expectation. It further Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:20 ::: 97 WP-1051-15 says that legitimate expectation occurs only if the decisions passed by administrative authority affecting the person by depriving him of some benefit or advantage which either
(i) he had in the past being permitted by the decision maker to enjoy and which he can legitimately expect to be permitted to continue to enjoy until it has been communicated to him on some rational grounds for withdrawing it if he had been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn.
91 It was also held in Union of India Vs. Hindustan Development Corporation1, however sincere a wish, a desire or a hope may be, and however, confidently one may look to them to be fulfilled, they by themselves cannot amount to an assertable expectation, and a mere disappointment does not attract legal consequences. Therefore, their Lordships opined 1 1993(3) SCC 499, Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:20 ::: 98 WP-1051-15 that such expectation which could be a legitimate one, should be justifiably legitimate and protectable because every legitimate expectation cannot result into a right becoming a conventional right in its sense. One cannot conclude that petitioner either acquired a vested right or a concluded contract in its favour. One cannot even opine that it had in fact, a legitimate expectation in its favour, since none of the conditions required for legitimate expectation are available. Further, legitimate expectation is not a legal right in its conventional sense.
92 We have to see whether mere proposal or mere receipt of techno economic feasibility study report on more than one occasion would vest the petitioner with any right with regard to proposal of Alewadi port. Proposal of Alewadi port was directed to be abandoned on account of DAE's concern of security reasons. On persuasion from the MMB and the State, DAE relaxed and suggested it could be down 3 kms South from proposed Alewadi port. Even in the area of operation extended to respondent no.3, no foreign vessel is to Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:20 ::: 99 WP-1051-15 be allowed close to the Tarapur Power Plant. They may have to have their own arrangement how to get the cargo from high sea to the shores. There cannot be any relaxation of such restriction, as long as such restrictions by DAE continues to exist.
93 Next consideration is whether petitioner concealed relevant and important material facts which would disentitle it for any relief even if we presume that they were to be in line with the case of third respondent, it is seen respondent no.3 entered the scene somewhere in 2011 and sought rights to develop a Captive facility near Nandgaon, 3 kms South of Alewadi. In the month of February 2011, MMB addressed a letter to Home Department, Government of Maharashtra suggesting shifting of port location towards southwards at Nandgaon area by 2 to 3 kms. It also requested Government of Maharashtra to take up the said matter with DAE to allow the development of port with additional safety measures as required. They also pointed out that distance of Tarapur installation from Alewadi site was about 7 - 8 kms and not 3 Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:20 ::: 100 WP-1051-15 kms as perceived by DAE. In August 2011, a request was made to DAE to reconsider its objection for development at Alewadi port since the aerial distance between Alewadi and Tarapur is about 7 - 8 kms. Government of Maharashtra informed the DAE that they are interested to develop the port at Alewadi as it may form part of Delhi - Mumbai industrial corridor, and will be able to have a dedicated fright corridor between Delhi - Mumbai.
94 Mean while, proposal of respondent no.3 was allowed in September to develop captive facility at Nandgaon which was about 3 kms South of Alewadi. This was in accordance with captive jetty policy of 1995 of Government of Maharashtra. Later on, a lease deed came to be executed in December thereby respondent no.3 acquired a vested right to develop a captive jetty/port at Nandgaon. Again, in December, NPCIL, AERB and BARC wrote letters to DAE to reconsider the objections contained in DAE's letter dated 29 th January 2009. Thereafter, in April 2012, a conditional "No Objection Certificate" was given to Government of Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:20 ::: 101 WP-1051-15 Maharashtra, wherein they allowed proposed project of jetty or port if it is developed beyond south side of Dolvi village. 95 According to respondent no.3, all along, petitioner was aware of the abandonment of Alewadi port by MMB and application of respondent no.3 for development of a captive facility at Nandgaon village. Approval of the proposal of respondent no.3 at Nandgaon village as well as a lease deed in favour of respondent no.3 being in the knowledge of the petitioner, petitioner in fact abandoned their claim to Alewadi by expressing their option for two other sites between Shirgaon and Satpati.
96 Apparently, Alewadi port came to be abandoned in 2009 on account of security apprehension raised by DAE. Whether petitioner was aware of such fears raised by DAE, and whether petitioner was aware that someone else is already considered for a location 3 kms below Alewadi i.e. Nandgaon. Respondent no.3 relies on Exhibit A-31 page 322, letter written by the petitioner's Solicitor to Transport Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:20 ::: 102 WP-1051-15 Secretary wherein it expresses its knowledge that some other developer intends to attempt the construction of a jetty on the same site with long term intention of converting the jetty into a full service port. This letter is much prior to LOI being granted in favour of respondent no.3 in October. At page 37 of the present Writ Petition, petitioner contends that petitioner repeatedly conveyed to respondent nos.1 and 2 that sanctioning a jetty at Nandgaon would render a port at Alewadi infructuous as both are in the same location. According to the petitioner, despite the concern of petitioner, respondent no.1 proceeded to illegally grant an LOI to respondent no.3 for Nandgaon. Apart from this, on 5 th September 2012, public notices in Times of India, Lokmat, Sakal were published by Maharashtra Pollution Control Board with regard to development of Nandgaon project, calling public opinion and objections. According to petitioner, even much prior to the LOI being issued at Nandgaon, he was opposing sanction of jetty at Nandgaon, how the petitioner now can seek protection of ignorance of public notices, or can he now say that they all pertain to Nandgaon, therefore, he Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:20 ::: 103 WP-1051-15 did not object. In all probability, petitioner was convinced that Nandgaon is at a different location than Alewadi, and the proposal of respondent no.3 is for a captive facility, unlike the commercial port proposal of the petitioner, it might not have objected. First Deed of Modification came into effect in the month of April 2013. Schedule contains modified water front area. From the pleadings of the petitioner, it is clear that petitioner was complaining of the fact that additional seafront was allotted to other developer, but still it was claiming ignorance of the identity of the developer. Third respondent is justified in saying that unless the petitioner had access to the documents and knowledge of the details, such averments could not have been made in the first petition which is annexed to the writ petition. Even in the affidavit in rejoinder, petitioner claims that till and after August 2014, petitioner was unaware that respondent no.3 had been permitted to set up a multipurpose port at the same location as that of Alewadi. For the first time, in the present Writ Petition, petitioner states that it is learnt that respondent no.3 being allotted Nandgaon project. This is somewhere in July Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:20 ::: 104 WP-1051-15 2013. If petitioner had any knowledge or doubt of setting up a jetty or port since March 2011, why petitioner kept quiet without demanding any details either from respondent no.1 or respondent no.2 to identify the name of project proponent, the location or the category of the proposal. This could have been done by petitioner with a simple application under Right to Information Act. Much later, they contend that if only they were aware of such facility being given to third respondent, and if only they were intimated about the possibility of constructing a jetty on the site of the very same port proposal, they could have also applied for the same. Apparently, there is nothing on record that there was any such demand from the petitioner to know the details of the site or proposal prior to the filing of the first Writ Petition. For the reasons best known to the petitioner, respondent no.3 was not even made a party. Even in the first petition, nothing prevented the petitioner seeking the details of the so-called jetty proposal which was within their knowledge in the month of March 2011 itself. There is no explanation why petitioner was keeping quiet from March 2011 without making any Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:20 ::: 105 WP-1051-15 effort to know what was happening in and around the site proposed by them at Alewadi. On the other hand, they also came up with a proposal of alternate site in 2012 between Shirgaon and Satpati much prior to filing of the earlier Writ Petition. This would clearly go to show that as far back as in 2011 itself, petitioner knew that someone else was already given the work of development of a captive jetty and deliberately respondent no.3 was not made a party to the first writ petition. On the other hand, on 8 th January 2014, after hearing only the Government Advocate, the Bench disposed of the earlier Writ Petition passing the following order:
"1. Petitioner is seeking an appropriate writ, order or direction, directing Respondents to decide its representation dated 31st July, 2013 after giving the Petitioner personal hearing expeditiously within a time bound schedule. Since this is the only relief pressed by the Petitioner at this stage, Petition can be conveniently disposed of by directing the Respondents to decide the said representation dated 31st July, 2013 as expeditiously as possible on merits and in accordance with law after giving personal hearing to the Petitioner within a period of 12 weeks from today.
2. We are informed that the process of appointment has not yet begun and that, in any case, it is not possible to appoint any person Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:20 ::: 106 WP-1051-15 within a period of three months. We, however, direct the Respondents not to take final decision in respect of development of the port till the representation of the Petitioner is decided.
3. Petition is disposed of accordingly."
97 The entire order refers to site at Alewadi and not Nandgaon. If petitioner had knowledge of a jetty/port being developed by someone else in and around the site for Alewadi, why petitioner did not pursue the matter further seeking better particulars/details from respondent nos.1 and 2 in the first round of litigation. Why petitioner did not even bother to wait till MMB was served and appeared before the Bench. There was no need to take an order like 8 th January 2014 as stated above in the earlier Writ Petition. The petitioner seems to have taken such order dated 8 th January 2014, in all probability, to cover up the delay and laches on the part of the petitioner so that petitioner could again file the present petition contending that it was ignorant of development of captive facility being granted to respondent no.3. It knew the existence of such third party in the month of March 2011. If only respondent no.3 was made a party to Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:21 ::: 107 WP-1051-15 the earlier writ petition, respondent no.3 could have challenged the matter by raising the contention of delay and laches then itself. They allowed the Court to pass the above order taking a commitment from the Government Advocate that the State would consider the proposal of petitioner for the site at Alewadi i.e. development of a multipurpose port, and till such consideration, they would not consider the proposal of Alewadi. Both MMB and respondent no.3 were not in the scene to explain or give better particulars to the Court. In all probability, for this reason, respondent no.3 was not heard before the second respondent at the time of passing impugned order. Yet, petitioner claims that there has been no delay and laches on the part of the petitioner in approaching the Court in the present petition. There is unexplained delay and laches on the part of the petitioner in filing the present Writ Petition. Inspite of knowledge of existence of third party (third respondent), right from March 2011, the petitioner kept quiet and has come in the present petition. Between March 2011 and filing of the present petition, rights are created in the third respondent and third respondent has Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:21 ::: 108 WP-1051-15 acted further in the matter of captive facility and its position is totally altered. After Environmental clearance granted to respondent no.3 on 16th March 2016 for the construction of a jetty, the petitioner, according to respondent no.3 moved the Court for interim order. However, the Court opined that the writ petition has been filed in 2013, the lease was executed in 2011, hence, there was no urgency in the matter, and no case was made out for grant for ad-interim injunction. The lease deed entered in favour of third respondent is only for a period of five years. After completion of five years, MMB has to further consider extending the same for 30 years and such situation has not yet come according to the MMB. 98 Inspite of knowledge of the petitioner in the month of March 2011 that a third party developer is attempting to get the construction of the jetty in the same site sought by petitioner on a longer term basis with an intention of converting the jetty into a full service port, petitioner did not take any steps. In the mean while, LOI was granted to third respondent in October 2011 which was within the Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:21 ::: 109 WP-1051-15 knowledge of the petitioner and still did not act in time by taking recourse to any legal proceedings. As a matter of fact, in the present petition, in so many words, petitioner makes it clear that it kept on objecting respondent nos.1 and 2 in sanctioning a jetty at Nandgaon which would render its proposal at Alewadi, infructuous. This would clearly indicate that petitioner was aware of the project at Nandgaon even prior to the issuance of LOI to respondent no.3 in the month of October 2011. The third respondent has altered its position by incurring an expenditure of Rs.70 crores on Nandgaon project, as stated in the affidavit in reply of respondent no.3.
99 According to respondent no.3, the correspondence between the petitioner and respondent no.1 makes it abundantly clear that they were aware of the proposal of respondent no.3, and that a lease was granted to respondent no.3 (including modifications being made by grant of additional seafront), Respondent no.3 contends that intentionally respondent no.3 was not made a party to the Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:21 ::: 110 WP-1051-15 proceedings in Writ Petition No.3278 of 2013 which came to be filed after a gap of three years since the execution of deed of lease in favour of respondent no.3. On account of petitioner expressing to shift their proposal to alternate site, Minister directed in the impugned order to consider awarding them a port at one of the alternative sites under 2010 policy. The request for alternate site between Shirgaon and Satpati was made, and this would only go to show that petitioner was no longer pursuing Alewadi port, and it abandoned the proposal. Apparently, 2010 policy mandates that the port developer to have a joint venture with the Government on the basis of 89 : 11% share in the arrangement. According to 3 rd respondent, in all probability, the petitioner abandoned and changed their mind opting for an alternate site since 2010 policy was invoked, and the procedure under 1996 policy was not in existence any more.
100 To substantiate the above contentions, letter dated 7th August 2012 written by petitioner to respondent no.2 is relied upon saying they are prepared to develop the Alewadi Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:21 ::: 111 WP-1051-15 port project on an "as is basis where is basis", and further all the terms and conditions of the DAE is acceptable to them. Even on this date, petitioner requested respondent no.2 to issue LOI on the condition that they will comply with the security conditions. Strangely, they do not mention that they were no longer interested in Shirgaon or Satpati. Again, petitioner in 2013 writes to respondent no.1 referring to earlier letters by letter dated 31 st July 2013 requesting for allotment of the port at Alewadi. Again, a request was made for award of the LOI for development of the port at Alewadi prior to filing earlier Writ Petition in December 2013. At no point of time, petitioner sought for consideration of their proposal in terms of 2010 policy. Subsequent to abandonment of Alewadi port in 2009, nothing could be considered so far as 1996 policy. The new proposals have to be in terms of 2010 port policy, whereas in all the notifications of Government in respect of captive jetty policy, they maintain that captive jetty policy would be in terms of 1995 policy subject to modifications, from time to time, with regard to terms and conditions.
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101 Writ Petition (L) No.3278 of 2013 filed by the
petitioner was served on the State Government. First
respondent - MMB was not yet served when it came to be disposed of on 8th January 2014. Apparently and surprisingly, respondent no.3 was not made a party to the Writ Petition. According to respondent no.3, petitioner was very well aware that respondent no.3 was awarded Nandgaon location which could affect the project proposed by the petitioner at Alewadi. However, on 8th January 2014, Writ Petition was disposed of by directing the Respondents not to take final decision in respect of development of the port till the representation of the Petitioner is decided. 102 Subsequently, the impugned order came to be passed. Apparently, third respondent was not directed to appear for hearing before respondent no.2. Petitioner was allowed to submit a proposal to respondent no.1 for an alternate location instead of Alewadi port. In the impugned order of respondent no.2, it is made clear that M/s.JSW Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:21 ::: 113 WP-1051-15 Infrastructure Ltd is allowed the benefit of captive jetty at village Nandgaon and the permission is only for use of captive jetty, and therefore, proper corrections must be made in the agreement. Further, petitioner was permitted to submit a proposal for alternative place instead of Alewadi port project. Admittedly, petitioner is not a port developer, and it is only a private equity fund having only a correspondence address in India. The so-called proposal of 2007 was a joint venture in collaboration with 2 or 3 other entities. Apparently, neither the petitioner nor any other contenders secured the development of Alewadi port. Petitioner claims throughout the petition as if it had acquired a vested right to get the Alewadi port i.e. the right to construct the port. Petitioner was not the only party which had submitted techno economic feasibility study report. The affidavit of first respondent filed in December 2016 clearly indicate that petitioner was standing fourth amongst other entities when a fresh techno economic feasibility study report was called on 11 th June 2010. As per this, petitioner was not even the most eligible amongst the other applicants. Inspite of change of earlier Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:21 ::: 114 WP-1051-15 port policy which was revised in 2010, the petitioner was the only project proponent who was not willing to submit expression of interest under 2010 policy, and it was insisting for consideration of the proposal under Old policy. As a matter of fact, Government opined that all the three companies i.e. Videocon Industries, M/s.Larsen & Toubro, petitioner etc. have to be considered. However, L & T did not submit its report. M/s.Deloitte which was the consultant of first respondent, questioned the petitioner's proposal on the ground that no financial data had been provided. An annual report of Chartered Accountant was also not submitted and they were not in a position to evaluate petitioner's proposal on account of lack of authenticity of financial data. Under these circumstances, we fail to understand how petitioner could claim vested right over Alewadi port. Petitioner in the present petition in the absence of any commitment being made to it by respondent no.1, cannot be held to have locus to file the present petition for the reliefs sought. The entire petition is pursuing the private interest of the petitioner, and not a Public Interest Litigation.
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103 Similarly, the claim of the petitioner that it has
been discriminated, violating their right to develop a commercial port which is nothing but violation under Article 14 of the Constitution, in the absence of issuance of LOI, and in the absence of no contract being awarded or promised to any of the four contenders, including the petitioner - Chaucer Capital, one cannot opine either the petitioner or any of the contenders had acquired any vested right. Apparently, in the absence of vested right to award the Alewadi port, we cannot compare petitioner with any other person to consider the ground of discrimination. In order to opine that petitioner was discriminated, there has to be another party who is successful in getting the proposal to set up Alewadi port. Apparently, petitioner was not competing with respondent no.3 to set up a private jetty or captive facility. Like respondent no.3, petitioner has no facility of industry near Nandgaon or Alewadi. Petitioner is intending to construct the commercial port but port will be operated by someone and not the petitioner. On the other hand, the captive facility to handle cargo of third respondent which has plants Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:21 ::: 116 WP-1051-15 at Tarapur, Vashind and Dolvi has come forward to have the captive facility at Nandgaon. Therefore, there is no question of discrimination against the petitioner by favouring respondent no.3 in respect of 1996 port policy. 104 The allocation of any project being the sole prerogative of the State, petitioner cannot claim the same as a matter of right. Respondent no.3 got the project only after the State was being satisfied with the compliance of various parameters. Petitioner cannot seek the selection of allotment of port without undergoing the tender process in terms of 2010 policy. Allocation and construction of captive jetty is in terms of 1995 GR/policy whereas the construction of a port and the terms and conditions thereunder in relation to the selection of the developer was in terms of initially 1996 port policy revised by port policy of 2010. Purportedly, petitioner has not annexed G.R dated 26th June 1995 which pertains to the construction of captive jetties, wherein it does not contemplate any bidding process for the allotment of captive jetty.
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105 Petitioner's project is a commercial venture.
Nandgaon project allotted to respondent no.3 is a captive jetty. The allegation that both sites are located at the same site, is false. Nandgaon jetty is located at a distance of approximately 7 kms from Tarapur Atomic Power Station. Therefore, no objections are raised to the project of the third respondent. The proposal of respondent no.3 at Nandgaon is located about 3 kms South of Alewadi port. Petitioner is a body corporate, incorporated under the laws of United Kingdom. The Policy of the State dated 20 th November 2000 relied upon by the petitioner appears to be with regard to a decision to develop Dighi and Rewas ports by a Memorandum of Understanding with the developer. The policy of 2005 pertains to multipurpose terminals/jetties and cargo terminals. This has no application to the captive jetty of the respondent no.3. As a matter of fact, 2005 policy explicitly mentions that the captive jetties shall continue to be governed by 1995 Policy. The question of maintaining minimum distance of 5 kms on the sea front between two multipurpose terminals does not apply to the respondent no.3 since no Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:21 ::: 118 WP-1051-15 decision was taken to develop Alewadi port when third respondent was issued with LOI. Respondent no.3 cannot be faulted for deficits in the communication between the petitioner and the MMB. Nothing on record would indicate that there was positive consideration of the project of the petitioner by respondent nos.1 and 2. On the other hand, the letter produced by the petitioner dated 3 rd July 2007 and the letter of respondent no.1 dated 17 th July 2007 indicate that petitioner itself in the said letter referred to the concern of the respondent no.1 with regard to the financial credibility of the petitioner.
106 The location of the project is entirely different from the location of the proposed port of petitioner. The distance between the two locations is about three kilometers. None of the policies relied by the petitioner i.e. 2005 nor 2010 apply to the case of the petitioner. The details of letters dated 18th April 2012 and 23rd May 2012 seeking alternate site between Satpati and Shirgaon are not placed on record by petitioner. There is no illegality, Tilak ::: Uploaded on - 14/10/2017 ::: Downloaded on - 15/10/2017 01:35:21 ::: 119 WP-1051-15 whatsoever, either in the execution of the lease deed, or modification deeds which came into existence subsequently. From the beginning, petitioner was aware of captive jetty permission given to respondent no.3. There is no question of accepting proposal of respondent no.3 rejecting the application of petitioner. Intention of respondent no.3 was not to develop port under the guise of a jetty at the site Nandgaon. The question of respondent nos.1 and 2 favouring respondent no.3 instead of petitioner, does not arise. The proximity of Alewadi project to the Tarapur Atomic Power Station, due to security concern, the project of the petitioner could not be considered, and the same is a document of record.
107 For the reasons best known to the petitioner, petitioner has kept quiet till he filed present writ petition without making the third respondent as a party to the proceedings. Petitioner did not even attempt to know the details of the project proponent at Nandgaon.
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108 We are of the opinion that the petitioner lacks any
legal right much less has any concluded contract in its favour to file the present writ petition and seek the prayers as made in the petition. Hence, petitioner cannot maintain the present petition.
109 For the discussion and reasons mentioned above, petition deserved to be dismissed and is accordingly dismissed.
110 Parties to bear their own costs.
(G.S. KULKARNI, J.) (CHIEF JUSTICE)
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