Bombay High Court
Chaucer Capital Limited vs Maharashtra Maritime Board And 2 ... on 13 October, 2017
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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
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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,
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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
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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
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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
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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
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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
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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
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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,
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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,
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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
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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
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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
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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
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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
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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
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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
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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".
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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,
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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
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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
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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
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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
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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
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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,
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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,
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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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