Bombay High Court
Redi Port Limited And Anr vs State Of Maharashtra And Anr on 14 December, 2016
1 WP-2134-16(J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2134 OF 2016
REDI PORT LIMITED AND ANR .. PETITIONERS
Versus
STATE OF MAHARASHTRA & ANR .. RESPONDENTS
...
Mr.D.J. Khambata, Senior Advocate with Gautam Ankad, Mr.Aditya
Mehta, Vishesh Malaviya, Mr.Ashwin Bhadang, Ms.Madhavi Doshi
i/b M/s.Federal & Rashmikant for the petitioners.
Mr.S.G.Aney, Senior Advocate with Mr.Sanjay Jain and Mr.Ishwar
Nankani, Mr.Sheelang Shah, Ms.Janaki Garde i/b Nankani Associates
for respondent no.2.
Mr.A.I. Patel, Additional G.P. for State.
CORAM: DR.MANJULA CHELLUR,CJ.
& M.S. SONAK, J.
RESERVED ON: 25th October 2016
PRONOUNCED ON: 14th DECEMBER, 2016
JUDGMENT (Per Dr.MANJULA CHELLUR, CJ):-
1 State of Maharashtra, by virtue of powers conferred
under Section 5 of Indian Ports Act, 1908, came with a notification
to alter the existing limits of several ports as detailed in the
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notification including the port at Redi. After deliberations in several
meetings right from 1996 to 2002, policy decision was taken to
privatize these ports so as to develop them as multi-purpose ports. In
the first phase, port at Redi was also included. The limits of Redi
Port came to be altered i.e. from one mile to ten miles on the
seaward side from the south bank of Mochimad creek. By
submitting necessary documents, the promoter of the petitioner no.1
through M/s.Earnest Shipping and Ship Builders Pvt.Ltd. approached
the authorities, requesting permission to develop Redi Port on Build,
Own, Operate, Share and Transfer basis. A notification came to be
issued by the Government of Goa, identifying and declaring the
Tiracol port limits within the tidal waters of River Tiracol east of
Meridian passing through Long.0730 41.5'. The proposal of
M/s.Earnest Shipping and Ship Builders came to be approved on 18th
August 2006, and ultimately, after several rounds of negotiation so
far as the terms of Concession Agreement, on 18th October 2008,
resolution was passed by State of Maharashtra, sanctioning the
execution of Concession Agreement with M/s.Earnest Shipping
Builders to develop an "All weather and multi-purpose port at Redi".
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In pursuance of policy of ports privatization on 25 th February 2009,
Concession Agreement came to be executed. However, according to
petitioners, physical possession came to be handed over only on 8 th
April 2009.
2 By virtue of an Indenture of Lease between first
petitioner and the second respondent as lessee, an agreement came
to be executed for 50 years commencing from 25 th February 2009 on
18th December 2009. This is how the petitioner no.1 as the lessee,
has come into picture.
3 The first petitioner claims structurally and mechanically
it has revamped jetties sometime after April 2009. The petitioner
no.1 - Redi Port Limited (RPL) made an application for lease of the
Government lands which were earlier identified by Maharashtra
Maritime Board (for short "MMB"), and MMB requested the State of
Maharashtra for transfer of the said lands to MMB for development
of Redi Port. Apparently, an amount of Rs.4,58,47,000/- came to be
paid by the RPL to MMB.
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4 The petitioner contends that as per the Concession
Agreement, RPL filed a detailed project report with MMB along with
all supporting documents, as indicated above, on 22 nd April 2010.
Environmental Impact Assessment (EIA) request was issued by RPL
to L & T Ramboll Consulting Engineers Limited on 29 th June 2010.
Mean while, Government of Goa issued a notification altering the
limits of Tiracol port as a result of which Tiracol port extended onto
the seaward side of the river Tiracol and extended into the area that
has been demarcated as the limits of Redi Port as detailed and
demarcated on the map annexed at Exhibit-B to the rejoinder.
However, first petitioner claims that it learnt of this notification only
on 19th August 2016. Baseline surveys were initiated at Redi Port by
RPL in order to obtain environmental clearance in the month of May
2011. Draft Environmental Impact Assessment (EIA) report along
with Executive summaries were submitted by RPO to Maharashtra
Pollution Control Board (MPCB). On 9th May 2011, State of
Maharashtra and MMB approved detail project report (Phase I)
which was submitted by Board on 22nd April 2010. In the month of
2011 itself, MMD requested State of Maharashtra for transfer of the
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lands to MMB for the purpose of development of Redi Port by
indicating urgency and necessity for such transfer for the purpose of
port privatization policy of State of Maharashtra. It is contended
that State of Maharashtra and MMP approved the Master Plan for
development of Redi Port during the period from 2014 - 2046
between 20th September 2011 to 20th October 2011. MMB, by its
letter dated 11th May 2012 requested the Principal Secretary (Ports)
of State of Maharashtra to publish a notification u/s.5 of the Indian
Ports Act to amend the existing port limits of Redi Port. This was in
terms of clause 3.5.1 of Concession Agreement.
5 Final EIA and EMP (Environment Management Report)
came to be submitted by RPL on 21st May 2012 to Maharashtra
Coastal Zone Management Authority (for short "MCZMA"). On 29 th
May 2012, additional documents were also submitted. Even a
presentation to the concerned Expert Appraisal Committee was made
on 3rd November 2012. Revision of draft notification correcting the
limits of the Redi port came to be made after consulting RPL by
Notification dated 30th January 2013, altering the limits and
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declaring the new limits of Redi Port, indicating latitude and
longitude geographical coordinates. This again required
clarifications by RPL to MCZMA since MCZMA raised queries. This
again, took some time, according to the petitioners, for no fault of
them. Only in the year 2013, MMB de-notified the required land for
the purpose of acquiring the same for development of Redi Port
depending upon classification of various lands. On 27 th September
2013, a lease deed came to be executed between RPL and MMP in
respect of 730 acres of inter-tidal land to enable RPL to implement,
develop, design, construct, operate and maintain the Redi Port in
accordance with the provisions of Concession Agreement. It is
contended that a sum of Rs.11,06,25,000/- for the inter-tidal lease
agreement came to be paid by RPL. MCZMA recommended
Environmental Clearance for the project of MOEF on 24 th October
2013. Finally, report required for necessary clearance came to be
submitted by RPL only on 8th November 2013 between 20/11/2013
to 23/11/2013. Request of RPL for environmental clearance was
considered by MOEF in its 128 th meeting. It was intimated to the
RPL by MOEF that Government lands was not yet in possession of
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RPL and RPL's proposal would be considered once those lands come
to the possession of RPL. This, again made the petitioners approach
MMB for transfer of lands. In turn, MMB requested the officials of
State of Maharashtra to initiate proceedings for diversion of said
government lands. According to the petitioners, they followed up
the matter with the State of Maharashtra and MMB on the release of
the said Government lands, therefore, requested for an extension of
Zero Date explaining the factual situation. Zero Date came to be
extended by MMB on 9th September 2014, and the same was
communicated accordingly.
6 According to petitioners, RPL addressed several letters,
representations to the State of Maharashtra and MMB and extension
of Zero Date and handing over of the said government lands, but the
same was delayed due to objections by local residents, occupants.
Therefore, even the proposal of RPL to purchase alternate lands did
not fructify. RPL even renewed the bank guarantee and submitted
further bank guarantee on 10th March 2015. However, this is
disputed by MMB.
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7 On 21st April 2015, according to petitioner, there was
demand for payment of Rs.22.55 crore by MMB and this is nothing,
but arbitrary demand towards landing and shipping fees and port
dues. There was communication of coercive steps if the said
amounts were not paid. According to MMB, the amounts demanded
are to be computed based on the rates prescribed by MMB for multi-
purpose jetties in terms of notification dated 5 th April, but according
to RPL, the same is not applicable. Since Redi Port is a minor port
under State of Maharashtra, port privatization policy and concession,
and therefore, is under a multi-purpose terminal jetties. Apparently,
Arbitration Petition No.836/15 under section 9 of the Arbitration
and Conciliation Act came to be filed by RPL wherein interim relief
was granted, restraining MMB directly or indirectly, or taking any
coercive steps or restraining RPL from carrying out operations at
Redi Port. Appeal (L) No.470 of 2015 challenging the order dated
30th April 2015 was dismissed on 17th June 2015.
8 According to petitioners, MMB addressed a letter to State
of Maharashtra unilaterally seeking alternation of RPL's port limits
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on 3rd April 2015, and the same came to the notice of the petitioner
for the first time on 18th August 2016 when it received a copy of the
letter from MMB. According to the petitioner, the statement of MMB
in this letter addressed to State of Maharashtra is false, so far as the
port limits of Tiracol port. According to them, it was only a pretext
for MMB to trouble the petitioners since Tiracol port limits had been
fixed in 2010 by the State of Goa and for RPL, it came to be re-fixed
much later i.e. 2013. The notification is dated 26 th November 2015
and came to RPL's knowledge only in the first week of August 2016.
This notification is with regard to alteration of limits of Redi Port.
According to the petitioner, the said alteration is shown in Exhibit-B
to the rejoinder was done in a clandestine and arbitrary manner by
MMB. The port limits came to be altered and re-fixed in the year
2013 after consultation and discussion with RPL, and both State of
Maharashtra and MMB kept RPL in the dark whilst issuing the
notification concerned. State of Maharashtra addressed a letter to
MMB enclosing a draft notification though in the month of
November 2015, but RPL learnt about the same on 18th August 2016.
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9 According to petitioner, in February 2016 itself, it had
informed the Divisional Forest Officer of State of Maharashtra that
RPL had selected non-forest land having Gat No.92/2 at
Sangameshwar, and requested the Officer to issue suitable
certificate. Request for RPL for compensatory afforestation came to
be accepted on 18th February 2016. Accordingly, it was accepted and
the clearance is awaited from Government of India in terms of letters
sent to the Government of India by State of Maharashtra and MMB.
10 In July 2016, RPL made a detailed representation to
MMB enumerating the various efforts undertaken by RPL to obtain
the said Government Lands and requested MMB to extend the Zero
Date by another 15 months so that it can obtain environment
clearance and achieve financial closure. Upon a praecipe filed by
MMB, a sole arbitrator was appointed by the High Court to
adjudicate upon the disputes between the parties under the
Concession Agreement, so far as the demand of authorities on the
basis of alleged multi-purpose terminal notification. Government of
India sought further details and information to take necessary action
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in terms of letters addressed to Government of India in the month of
March, June and July so far as the issue of compensatory
afforestation.
11 The petitioner seems to have initiated correspondence
with MMB with regard to the notification dated 26th November 2015
by which State of Maharashtra had altered the limits of Redi Port. In
the joint meeting held between RPL and MMB, MMB made it clear
not to extend Zero Date on account of the non-payment of landing
and shipping fees and charges amounting to Rs.22.54 crores.
Several requests, according to the petitioner, were made to MMB as
well as Chief Minister of Maharashtra to withdraw notification dated
26th April 2015 allegedly issued unilaterally altering the port limits,
therefore, it necessitates extension of Zero Date. Mean while, a
status quo order with regard to possession of RPL came to be passed
by this Court on 25th August 2016 in the present Writ Petition.
12 It is contended on behalf of the petitioner that even after
filing of the Writ Petition, counsel appearing on behalf of State of
Maharashtra informed the Court that the representations of RPL for
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the extension of Zero Date already filed, were pending before the
State and MMB, and sought liberty to consider the said
representations. Letters were addressed to Revenue and Forest
Department of State of Maharashtra, so far as request to comply with
the issues raised by Government of India regarding compensatory
afforestation which was sought by Union of India.
On 30th August 2016, in a meeting held by MMB, it was
resolved that the Concession Agreement stands terminated since
Zero Date has not been achieved, and MMB should take back
possession of Redi Port from RPL. According to the petitioners, in
total violation of directions of this Court to maintain status quo
regarding possession, officials of MMB visited the premises to draw
assets of the RPL and also to take possession of all the assets and
properties etc. Said attempt was continued only to trouble the
petitioners without even caring to consider the cargo lying in the
port premises belonging to third parties. This was informed to the
Court accordingly. Mean while, two letters were received from MMB
to collect or recover the landing and shipping fees of the cargo
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handled between certain period, which again is the subject matter of
arbitration proceedings according to the petitioners. This ultimately,
compelled the petitioners to file Contempt proceedings in Contempt
Petition (L) No.73/16 in the above Writ Petition. Mean while,
District Mining Officer took steps against various mining companies
to remove their cargos from the Redi Port. According to petitioners,
the sole arbitrator by an interim order dated 19 th September 2016,
granted interim reliefs to RPL, pending arbitration, for a period of six
weeks from the date of award. Now, they learnt that State of
Maharashtra has allotted anchorage point within port limits of Redi
Port to one Kiranpani Port Pvt.Ltd, and the Anchorage Point is
situated very close to inter-tidal land leased to RPL. On 23 rd
September 2016, RPL received a letter from MMB that the
Concession Agreement stood automatically terminated as per clause
5.1 of the Concession Agreement due to the failure on the part of
RPL to achieve the Zero Date. They also indicated taking steps to
adhere to the directions of the State of Maharashtra as a
consequence of termination of the captioned 'Concession Agreement'.
According to the petitioners, termination of the Concession
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Agreement is in gross violation and contempt of the orders of this
Court dated 30th April 2015 and 1st August 2016 in Arbitration
Petition No.836/15. The said termination, according to them, is
malafide, illegal, non-est, void, ab initio, and without authority in
law as MMB has only followed the directions of the State
Government since State of Maharashtra has no authority to issue
such direction, except directions on the question of policy of MMB.
The letter is nothing, but breach of statement made by MMB to the
Court during the pendency of the Writ Petition. According to the
petitioners, the conduct of the MMB and State of Maharashtra would
indicate that even till end of August, they were making attempts to
provide the government lands to RPL. It is further contended that
the proposed action of MMB on the directions of 1 st respondent -
State of Maharashtra, they are exposed to immense loss and
hardship since they have already invested amongst in excess of 55
crores on the execution of the project. Termination of RPL's
Concession Agreement in turn affect interest of various other third
parties who depend on the port managed by the petitioners,
especially the owners of the iron ore.
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14 As against this, the respondent no.2 through its Assistant
Secretary-cum-Law Officer has filed its affidavit-in-reply. According
to the respondents, Writ Petition itself is not maintainable.
Therefore, the petitioners are not entitled for any interim relief,
much less the relief sought in the Writ Petition. It is stated that the
petitioners have suppressed material facts and documents, and have
made false and misleading statements regarding entire Techno-
Economical Feasibility Study Report prepared by Consulting
Engineering Services Pvt. Ltd in 1997. The Techno-Economical
Feasibility Study Report prepared by L & T Ramboll Consulting
Engineers Ltd in the year 2007 at the instance of the petitioners, and
the entire detailed project report prepared by L & T Ramboll
Consulting Engineers Limited in 2010 was again prepared at the
instance of petitioners. According to them, even with regard to
location as notified by respondent no.2, by notification dated 30 th
January 2013, they are made on the misleading statements. They
further contend that the Writ Petition is aimed at adjudication of
contractual disputes which involves adjudication upon disputed
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question of fact and the Writ Petition is aimed at avoiding
consequences of petitioners' failure to achieve Zero Date, as defined
in clause 4.2 of the agreement dated 25th February 2009. It is further
said that certain illegal operations are being attempted by the
petitioners from the two jetties of respondent no.2 at Redi Port after
the expiry of Zero Date, and therefore, the attempt is only to
perpetuate the illegal operations.
15 Under the guise of seeking reliefs with regard to
notification dated 26th November 2015 which is impugned in the
present Writ Petition, an attempt is made to seek extension of period
of achieving Zero Date, and in fact, it would be nothing but matters
which need to be decided in arbitration since they all refer to
contractual terms of the parties. Since several amounts are due from
petitioners, they are not entitled for any discretionary relief. State of
Maharashtra has coastal line stretching 720 kms long which consists
of 48 small size ports across the coastal line in Konkan region. It felt
the necessity to develop numerous small ports privately to maximize
amenities and meet global standards in order to improve the
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industrial growth. Out of seven ports selected, Redi Port was one of
them, so far as first phase is concerned. Way back in 1934, this Redi
Port was notified. The jetties which are in existence were built
somewhere in the year 1981-82. Customs office was built here and
department of Customs has issued Landing and Shipping
declaration. Redi Port is largely used for exporting iron ore. So far
as the contention of the petitioners that in 1996, State of
Maharashtra notified policy decision to privatize and develop
multipurpose ports, they are not opposing or denying the same.
16 Since positive bids were not received to allocate global
tenders to attract international developments, first respondent
decided to allocate development rights of the ports, and at the
Memorandum of Understanding, on the basis of BOOT, M/s.Earnest
Shipping and Ship Builders Pvt.Ltd submitted proposal, and the
same was approved. Petitioner no.1 was incorporated as a special
purpose vehicle for the purpose of developing the Redi Port. Once
Redi Port being developed, second respondent MMB had an option
to acquire upto 11% equity stake in petitioner no.1. This would
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have happened only if petitioner no.1 was able to achieve the Zero
Date.
17 Zero Date is introduced as per policy decision of
respondent no.1 which is clearly indicated in the policy documents.
Till Zero Date is not achieved, the conditions necessary to launch the
projects are not achieved. Hence, till such achievement, no rights
could be created in favour of proposed licensee. On 6 th July 2007
itself, in the letter of Intent issued in favour of M/s.Earnest Shipping
and Ship Builders Pvt.Ltd by State of Maharashtra, they were
directed to comply with achieving Zero Date and made clear that
extension of Zero Date is at the discretion of the respondent no.2. In
August 2007, petitioner no.1 came to be incorporated and furnished
a bank guarantee for Rs.5 crores which expired in 2010. No fresh
bank guarantee was issued and the same came to be given much
later in the month of March 2015. At the request of first petitioner,
Concession Agreement came to be executed, wherein there was a
request for transfer of two working jetties (MMD jetties), the land
owned by respondent (the leased land) and other assets and
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facilities to the first petitioner.
18 By placing reliance on variuos clauses, they contend that
time was essence of the contract and all dates stipulated and
specified under the agreement had to be adhered to, unless
specifically and mutually extended by the parties. Non-achievement
would automatically result in termination of Concession Agreement
since environmental clearance and financial closure within the
prescribed 24 months period as stipulated under Concession
Agreement was not achieved inspite of extension of time limit to
achieve Zero Date. Termination would be the result. In the Board
meeting and as per the Controller and Audit General Report,
petitioner no.1 was held responsible in delaying the process of
getting environmental clearance of MOEF. Inspite of extending the
Zero Date upto 31st August 2016, the petitioners are not able to
achieve Zero Date. Hence, in terms of clause 5.1, Concession
Agreement would stand terminated and parties to the Concession
Agreement shall have no liability of any nature subject to clause 5.2.
According to respondents, achieving Zero Date was an integral and
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fundamental obligation of the petitioners which was not complied
with. Petitioners were to prepare a detailed project report before
April 2010. Apart from placing relevant information, the petitioners
were bound to accurately and precisely delineate the entire Redi
Port proposed for development. Inspite of claiming requisite
expertise, petitioners never took steps to include the Tiracol port by
the State of Goa. The independent agency appointed by respondent
no.2 to study technical and economic viability, the DPR said to have
been prepared by L & T Ramboll is based on the information
furnished by petitioner no.1. The same is prepared without
accurately identifying the State borders between State of
Maharashtra and State of Goa. According to respondents, port limits
required for the development of Redi Port were deliberately and
willfully misled and misinformed by the petitioners. First petitioner
has consciously chose the project location Survey No.15, Village Redi
and Survey No.58 Village Kanyal for development which required
permissions and compliances from various authorities. The Board
approved the DPR Phase I on the representations, assurances and
delineation of the area identified by petitioners in the DPR, and
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accordingly, port limits were identified and indicated by the
petitioners were notified. The numerous correspondence between
the parties and the authorities clearly indicate the same. Second
respondent obligations under the Concession Agreement were
always complied with so far as existing facilities, including assets etc.
297 Hectares of inter-tidal land was identified and lease deed was
executed on 9th September 2013. Application for environmental
clearance was never applied within the prescribed time. However,
petitioners started using the leased land and leased assets and again
declined to pay the charges, which again became subject matter of
dispute. After entering into the Concession Agreement and the
information collected from 2004 to 2008 prior to the Concession
Agreement, would clearly indicate that there is average loss of
Revenue as indicated in the reply. The petitioners sought so many
exemptions and refused to pay fee payable for various jetties.
19 The respondent no.2 was informed, that port limits as
proposed under the DPR by the petitioner no.1 on the basis of which
notification dated 30th January 2013 was issued, forms part of
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territorial waters of Goa only in the month of August - September
2015. Since the port limits of Redi Port as notified encroached upon
the territorial limits of State of Goa, second respondent had to take
steps to alter the port limits within the Maharashtra State Territory.
Therefore, notification dated 26th November 2015 was issued. This
was very much within the authority of the second respondent to alter
the port limits. Said notification has not at all affected the
petitioners in any manner since they have never commenced the
work under the Concession Agreement. Therefore, they did not
raise any objection though they were aware of the notification dated
26th November 2015. Now, they are trying to project that off-late,
they acquired knowledge of the notification dated 26 th November
2015.
20 Second respondent has not violated any of the orders of
the Court. Every assistance and co-operation required was given to
petitioners by the respondent to obtain permissions, clearances from
various authorities. When the petitioners failed to achieve the Zero
Date inspite of extension of Zero Date achievement, they intended to
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take back possession of the properties on expiry of Zero Date.
According to them, petitioners have committed default of obligations
and assurances.
21 All along, petitioners were aware of the breach of
obligations, but under the guise of impugned notification to
overcome their defects, have approached this Court, invoking writ
jurisdiction by interpreting several clauses of Concession Agreement,
for which petitioner has an alternative and efficacious remedy.
According to them, impugned notification has nothing to do with the
pre-requisites to achieve Zero Date and they are not at all inter-
linked to the notification. The challenge to the impugned
notification cannot be entertained in the absence of competent
authority in the State of Goa being made a party. Having failed to
obtain all necessary permissions within the period in terms of
Concession Agreement, petitioners are blaming the respondents for
the laches of the petitioners. The notification is dated 26 th November
2015 which is a public document, and the petitioners have
challenged the same on 22nd August 2016, just nine days prior to the
deadline to achieve Zero Date, only with an intention to seek
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extension of Zero Date under guise of the impugned notification. It
was the duty and obligation of the petitioners to verify all the details
in all respects so far as the preparation of DPR. Having failed to do,
they cannot now blame the respondents for altering the port limits.
The alleged amount claimed to have been spent by the petitioners
alone, is mentioned, but they have never placed on record the
Revenue earned by them between 2009 to 2016. Alteration of port
limits has no hindrance of any nature to achieve Zero Date, and even
if such alteration affects the proposed development, it is a subject
matter of commercial dispute and not a dispute to be resolved under
Article 226 of the Constitution.
22 With the above facts and submissions at our command,
we proceed to dispose of the Writ Petition for the following reasons.
23 The salient features of Concession Agreement and
relevant clauses which are enumerated in the affidavit-in-reply of the
second respondent read as under :-
(1) Clause 3.1 of the Concession Agreement, Petitioner
No.1 shall pay a onetime licence fee of Rs.10 lakhs;
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(2) Clause 1.5 - Respondent No.2 has granted to the
Petitioner No.1 license to build a Multi-purpose, common
user Port at Redi on BOOT basis for a period of 50 years;
(3) Clause 2(d) - Date of Commencement of Operations
shall have the meaning specified in Section 21 of the
Concession Agreement being the date on which "the Port"
as defined in clause 2(x) of the Concession Agreement being
able to commence business.
(4) Clause 2(j) - Development Phase means the phase
between the Effective Date and the Zero Date.
(5) Clause 2(l) - Effective Date means the date of signing
of the concession agreement i.e. 25.02.2009.
(6) Clause 2(n) - Financial Closure means the fulfilment
of all conditions precedent to the initial availability of funds
under the Financing Documents and receipt of
commitments for equity required for Phase I of the
Project/immediate access to funds;
(7) Clause 2(x) - "Port" means the port proposed to be
developed in accordance with the terms of the Concession
Agreement by Petitioner No.1;
(8) Clause 2(y) - Port limits means the limits of the Port
as defined by the Indian Ports Act and as amended from
time to time.
(9) Clause 3.4 - Petitioner No.1 was obligated to finance,
design and construct the Port within the time frame
specified under the Concession Agreement and operate and
maintain the Port Complex.
(10) Clause 3.5.1 - Respondent No.2 would demarcate port
limits based on the 50 years plan provided in the approved
Detailed Project Report (DPR) and it shall not alter or
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modify the port limits to the prejudice of Petitioner No.1 as
far as possible.
(11) Clause 3.5.2 - Respondent No.2 shall provide a list to
Petitioner No.1 of Government owned land required for the
project as per the existing policy of the Government and the
same would be valued at the market value as on the date of
transfer of such land.
(12) Clause 3.5.2 - Respondent No.2 would request the
Competent Planning Authority to notify the total land
indicated in the DPR and approved by Respondent No.2 for
development of the Port and port related activities.
(13) Clause 4.2 - Petitioner No.1 was to achieve Zero Date
within 24 months (ie by 24th February 2011) from the
Effective Date (i.e. date of signing of the Concession
Agreement). The pre-requisites in order to achieve Zero
Date, Petitioner No.1 was to :
(a) Obtain all Environmental Clearances from
the Ministry of Environment; and
(b) Achieve Financial Closure;
(14) Clause 5.1 - In the event Zero Date is not achieved
within 24 months from Effective Date unless otherwise
agreed to, the Concession Agreement would stand
terminated (which termination happened on 31st August
2016)
(15) Clause 5.2 - If Zero Date has not been achieved,
Respondent No.2 may invoke the Development Guarantee.
(16) Clause 6.2.2 - Petitioner No.1 was required to submit
the application for all Environmental Clearance within 14
months of the effective date i.e. by 24 th June 2010.
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(However, Petitioner No.1 has submitted the Final EIA and
other documents to the MOEF only on 29th May 2012) (Page
406 of Additional Affidavit filed by Petitioner No.1)
(17) Clause 6.2.4 - Petitioner No.1 was required to furnish
a Construction Bank Guarantee.
(18) Clause 8 - Petitioner no.1 was to comply with all
statutes and regulations of the Central or State
Governments.
(19) Clause 11.1 - Within 14 months of signing the
Concession Agreement, Petitioner No.1 was required to
furnish a Detailed Project Report, inter alia, containing the
Port Charges that are payable to Respondent No.2 based on
estimated volumes of cargo and the land requirement for
the project over the licence period of 50 years.
(20) Clause 12.5 - Petitioner No.1 agreed to
independently verify all details with regard to
meteorological, geological and other conditions and would
be liable for any defect, discrepancy, error or deficiency in
the information provided and no claim would be
entertained based on any such defects including extension
of time for completing construction of the Port complex. The
grievance in this Petition arises on account of default,
discrepancy and error in the Petitioner's DPR.
(21) Clause 12.8 - Petitioner No.1 shall complete and
submit all designs, drawings prepared by it to Respondent
No.2 within a period of 6 months from the Zero Date.
(22) Clause 14.1 - Petitioner No.1 was solely liable to
obtain all statutory clearances including Environmental
Clearance from various Government authorities.
(23) Clause 16.6 - Petitioner No.1 was obligated to allow
Respondent No.2 to inspect work carried out in the Port
complex.
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(24) Clause 19.2 - Petitioner No.1 was to provide a
Development Guarantee of Rs.5,00,00,000/- upon signing of
the Concession Agreement. The petitioners for some period
did not provide the Development guarantee.
(25) Clause 20 - Respondent No.2 was entitled to inspect
project activities and operations of the Port and Petitioner
No.1 was to ensure unhindered access and offer necessary
cooperation to carry out inspection of the Port complex.
(26) Clause 20.1.1 - The Date of Commencement of
Operations of the Port shall be the date of issue of Landing
and Shipping Declaration by the Customs or the date of
expiry of scheduled construction period.
(27) Clause 27.1 - Petitioner No.1 was to provide a
Performance Guarantee of Rs.1,00,00,000/-.
(28) Clause 38 - Petitioner No.1 was liable to pay a
portion of the amount collected by it for the cargo handled
at Port as per the scale of rates for providing services
starting from the date of commencement of commercial
operations i.e. Rs.3/- per Tonne of cargo or Rs.36/- per
loaded TEU (20 foot Equivalent Unit) in case of Containers.
(29) Clause 64 - provided that all disputes shall be
referred to arbitration.
(30) Clause 85 - Specific project milestones and
timeframe within which they were to be achieved were set
out.
(a) Submission of DPR - 14 months.
(b) Submission of application for Environmental
Clearance - 14 months.
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(c) Obtaining of all clearances except
Environmental Clearance - 24 months;
(d) Zero Date/Financial Closure - 24 months.
(e) Amendment of AOA and MOA of SPV
i.e. Petitioner No.1;
(f) Submission of detailed engineering design - 6 months
from Financial Closure;
(g) Submission of application to Customs
Department for Declaration as Landing and
Shipping site - 4 weeks from the completion
of inspection of the Port;
(h) Completion of construction - 60 months;
(i) Date of normal transfer - 600 months.
24 The case brought on record clearly indicated the terms
and conditions upon which the parties agreed to proceed with the
obligation and a several classes of concession agreement. It is
pertinent to point out that on account of State of Goa altering the
Tiracol port limits, it has caused impact on the limits of Redi port
which in turn has delayed the project is the stand of the petitioners
why they were unable to achieve the Zero date. Apparently, the
State of Goa is not made a party. According to the petitioners, only
in the month of August 2015 to September 2015, port limits got
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extended in terms of notification dated 30th January 2013, and
became part of territorial waters of Goa. Whether notification issued
in November 2015 to ensure port limits of Redi port as notified
earlier to alter the Redi port limits, was the actual cause why the
petitioners were not able to comply with the condition of achieving
the zero date? Whether the notification of Government of Goa
extending the limits of Tiracol port came in the way of even
commencing the work under the concession agreement, and whether
there was delay on the part of the respondent authorities to comply
with their obligations so as to commence the work? These
controversial issues involve ascertainment of factual situation which
require a full-fledged trial. According to the respondent authorities,
notification dated 26th November 2015 never affected the rights of
the petitioners since they never commenced the work under the
concession agreement. This, depending upon the ascertainment of
facts, only can be decided.
25 It is placed on record certain measurement of inter-tidal
land was entitled and even lease documents were executed way back
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in 2013. According to the respondent authorities, environmental
clearance application was to be applied within the prescribed time,
but they had never applied, and on the other hand, they were using
the leased land without paying the charges which again is the subject
matter of dispute between the parties. Whether delineation of the
area for the purpose of implementation of the project under the
concession agreement was delayed, which ultimately created
obstacles for the petitioner to achieve the zero date or the petitioners
were delaying project by not even commencing the substantial work
and however, made use of land leased to them, will again forms part
of exercise of ascertainment of facts. It is also contended on the part
of the respondent authorities that without seriousness to implement
the concession agreement in order to reach zero date, there were
unreasonable demands on the part of the petitioners which
ultimately delayed in reaching the Zero date. According to the
respondent authorities, the independent agency appointed by second
respondent so far as technical and economical viability said to have
been prepared by L & T Ramboll is based on the information
furnished by petitioner no.1. Therefore, if at all, any difficulty arose
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in demarcating the limits of Redi port, it is on account of inaccurate
information furnished by the petitioners. The limits required for the
development of Redi port was deliberately and willfully misled by
the petitioners is the stand of the respondent authorities, and it is
further contended that on account of such misleading information, if
at all there was delay on the part of the respondent authorities, the
petitioners have to blame themselves and not the respondent
authorities. All these controversial issues between the parties again
depends upon the actual and factual ascertainment of material facts,
therefore, definitely, this Court, while exercising powers under
Article 226 of the Constitution of India, should not undertake such
exercise since alternate and efficacious remedy is available for the
petitioners is the stand of the respondents.
26 According to the respondents, the breaches and defaults
of obligations, representations and assurances by Petitioners under
the Concession Agreement include, but are not limited to:
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(a) failure to obtain Environment Clearance from the
Ministry of Environment (Clause 4.2.1 and 14),
(b) failure to submit application for Environment
Clearance within 14 months of Effective Date (Clause
6.2.2)
(c) failure to obtain Financial Closure {Clause 4.2.2
read with 2(n)}
(d) failure to achieve Zero Date despite extension
upto 31st August 2016 i.e. more than 5 years after the
scheduled time frame of 24 months.
(e) misrepresentation of proper Project Location
under clause 2.1 of the DPR.
(f) failure to pay Landing and Shipping Dues in
terms of Government Resolution dated 5th April 2011,
(g) unlawful payment of Landing and Shipping Dues
in terms of Government Resolution dated 5th April 2011.
(g) unlawful payment of Landing and Shipping Dues
at the rates provided under clause 38 of the Concession
Agreement despite the Commencement of Operations
as defined not having been achieved.
(h) failure to provide Construction Guarantee (Clause
19.1 read with clause 6.2.4)
(i) delay of almost 5 years in submission of second
Development Guarantee after expiry of the first
Development Guarantee in 2010 (Clause 19.2)
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(j) failure to develop Redi Port as a multipurpose, all
weather port and design and construct within time
frame as specified in the Concession Agreement (Clause
85),
(k) failure to obtain permissions for obtaining
possession of S.No. 15 and 58 despite all assistance
rendered by Respondent No.2 (Clause 6.2.1),
(l) failure to collect and pay Port Dues under Section
33 of the Indian Ports Act, 1908 (Clause 8);
(m) failure to finance and construct Port within
stipulated time frame {Clause 3.4(b)}
(n) failure to perform all duties, obligations and
responsibilities under the Concession Agreement
{Clause 3.4(e)}
(o) failure to transfer Leased Assets in good condition
to Respondent No.2 in accordance with the provisions of
the Concession Agreement at the expiry of License
Period or early termination as the case may be {Clause
3.4(f)}.
(p) failure to accurately verify details and data on
meteorological, geological and other conditions (Clause
12.5)
(q) Petitioner is liable for defects under the DPR
(Clause 12.12);
27 In order to appreciate the stand of the parties and to
invoke plenary jurisdiction of this Court to grant prerogative writ
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under Article 226 of the Constitution, one has to see what exactly is
the grievance raised, and the basis on which said grievance is
espoused and, ultimately, what relief the petitioner seeks at the
hands of this Court. The respondents have taken serious objection
to the maintainability of this Writ Petition on the ground that the
Writ Petition cannot be entertained under Article 226 of the
Constitution since there has to be investigation into factual details
with reference to the terms of contract and also conduct of the
parties. The grievance of the respondent authorities is that the
petitioners did not achieve the Zero Date in spite of several
opportunities given to them, and according to the petitioners, they
were not at fault in not achieving the Zero Date, but on account of
the various factors including the fact of extension of port limits in
terms of notification dated 30th January 2013, the extension of Zero
Date could not be reached.
28 It is beneficial to refer to the decision in State of Kerala
Vs. M.K. Jose, (2015)9 SCC 433, in order to appreciate the stand of
the parties, invoking jurisdiction under Article 226 of the
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Constitution. In the case referred to above, several directions came
to be issued by the High Court with regard to the subject matter of
the work and the contract. Ultimately, a commission was allowed to
measure the completion of work under the contract. Their Lordships
in paragraph nos.20 and 21 analysed the circumstances in which the
action or the directions of the Division Bench of the High Court was
found fault in that particular case. In paragraph nos.20 and 21,
while coming to the conclusions, earlier judgments of the Apex Court
were analyzed, and ultimately, opined that the plenary jurisdiction of
the High Court to issue a prerogative writ, will not normally be
exercised by the Court to the exclusion of other available remedies
unless such action of the State or its instrumentality is arbitrary or
unreasonable so as to violate the constitutional mandate or for other
valid and legitimate reasons for which the Court thinks it necessary
to exercise plenary jurisdiction.
29 In the case of Whirlpool Corporation Vs. Registrar of
Trade Marks (1998) 8 SCC 1, and Nivedita Vs. Cellular Operators
Association of India, (2011) 14 SCC 337, it was held that having
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regard to the facts of the case, the High Court in its discretion can
entertain or reject a Writ Petition. However, the High Court has
imposed upon itself certain restrictions, one of which is that if an
effective and alternative efficacious remedy is available, the High
Court would not normally exercise its jurisdiction. No doubt an
alternative remedy has been consistently held not to operate as a bar
where a Writ Petition has been filed for the enforcement of any of
the fundamental rights or where there has been a violation of the
principle of natural justice, or where the order or proceedings are
wholly without jurisdiction or the virus of an Act is challenged. But
none of the above circumstances exist in the present case.
30 In the light of the above circumstances, we have to
analyze what exactly is the grievance before this Court. It is not in
dispute that parties before us are to proceed with the project in
terms of the obligation and several clauses of concession agreement.
Whether there was justification on the part of the writ petitioner to
seek extension of Zero Date, beyond the time limit provided under
the agreement which was extended from time to time, and whether
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there is violation of any obligation on the part of the respondent
authority which ultimately created obstacles in achieving the Zero
Date, or whether the conduct of the petitioner itself is responsible in
not achieving the Zero Date, are all matters which are required to be
investigated with reference to the facts and various other material
which the parties could tender before the Court in evidence.
In the light of above factual situation, for the reasons
mentioned above, we are of the opinion the Writ Petition deserves to
be dismissed, and is dismissed accordingly.
(M.S.SONAK, J) CHIEF JUSTICE
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