Arcelormittal Nippon Steel India ... vs Government Of Gujarat
2021 Latest Caselaw 3608 Guj

        C/SCA/8703/2020                                    ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CIVIL APPLICATION NO. 8703 of 2020
                              With
      CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2020
         In R/SPECIAL CIVIL APPLICATION NO. 8703 of 2020
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           ARCELORMITTAL NIPPON STEEL INDIA LIMITED
                            Versus
                  GOVERNMENT OF GUJARAT
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Appearance:
MR HARISH SALVE AND MR DARIUS KHAMBHATTA, LEARNED SENIOR
ADVOCATES ASSISTED BY MR NIRAG N PATHAK, MR NITESH JAIN, MR.
ABHISHEK SWAROOP, MR.NAMAN SINGH, MR. ADRISH MAJMUDAR
AND MR TUSHAR HATHIRAMANI, ADVOCATES for the Petitioner(s) No. 1,2
MR KAMAL B TRIVEDI, LEARNED ADVOCATE GENERAL ASSISTED BY
MR RONAK RAVAL, AGP for the Respondent(s) No. 1
MR TUSHAR MEHTA, LEARNED SOLICITOR GENERAL ASSISTED BY
MR G H VIRK AND MR SIMRANJIT H VIRK, ADVOCATES for the
Respondent(s) No. 2
MR MIHIR JOSHI, LEARNED SENIOR ADVOCATE ASSISTED BY MR
RAHIL PATEL FOR NANAVATI ASSOCIATES(1375) for the Respondent(s)
No. 3
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 CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
                    Date : 01/03/2021
                     ORAL ORDER

1. The petitioners have filed the present petition under Article 226 of the Constitution of India wherein the petitioners have prayed for the following reliefs:

"A. Admit and allow, the present Writ Petition;

B. Issue a Writ of Mandamus or any other writ, in the nature of Mandamus or any other appropriate writ, order and/or direction directing, Respondent No.2/GMB to act in accordance with Petitioner's letters dated 18th December, 2019 (Annexures LL & MM) and transfer and/or revert: (i) the Captive Jetty licences in respect of the Second and Third Expansion Licence Agreements (Annexures G & H) standing in

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the name of Respondent No.3/EBTL in favour of the Petitioner No.1; and (ii) the allotment and right/title/interest in any back­up land or reclaimed land granted to the Respondent No.3/EBTL in connection with the Second and Third Expansion License Agreements (Annexures G & H) in favour of the Petitioner No.1;

C. Issue a Writ of Mandamus or any other writ, in the nature of Mandamus or any other appropriate writ, order and/or direction directing, the Respondent No.2/GMB to act on the basis of Petitioner's letter dated 24th October, 2019 (Annexure GG) exercising its option on the entire Captive Jetty and all the Licenses including under the Second and Third Expansion License Agreements;

D. Issue a Writ of Mandamus or any other writ, in the nature of Mandamus or any other appropriate writ, order and/or direction directing, the Respondent No.2/GMB to withdraw and cancel its letter dated 27th November, 2019 bearing reference no.GMB/N/PVT­1/2063/467/7998 (Annexure II);

E. Issue a Writ of Mandamus or any other writ, in the nature of Mandamus or any other appropriate writ, order and/or direction directing, the Respondent No.2/GMB to not proceed on the basis of Respondent No.3/EBTL's letters dated 24th October, 2019 and 6th November, 2019;

F. Issue a Writ of Mandamus or any other writ, in the nature of Mandamus or any other appropriate writ, order and/or direction directing, the Respondent No.1 to ensure that Respondent No.2;

(i) acts in accordance with the Petitioner's letters dated 18th December, 2019 (Annexures LL & MM) and transfers and/or reverts the Captive Jetty licences in respect of the Second and Third Expansion License Agreements (Annexures G & H) standing in the name of Respondent

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No.3/EBTL in favour of the Petitioner No.1 and the allotment and right/title/interest in any back­up land or reclaimed land granted to the Respondent No.3/EBTL in connection with the Second and Third Expansion License Agreements (Annexures G & H) in favour of the Petitioner No.1;

(ii) acts on the basis of Petitioner's letter dated 24th October, 2019 (Annexure GG) exercising its option on the entire Captive Jetty and all the Licenses including under the Second and third Expansion License Agreements;

(iii)    withdraws and cancels its letter dated
27 th
       November,    2019    bearing    reference

no.GMB/N/PVT­1/2063/7998 (Annexure II); and

(iv) not proceed on the basis of Respondent No.3/EBTL's letters dated 24th October, 2019 and 6th November, 2019.

G. Stay implementation, operation, execution and/or enforcement of impugned actions of the Respondent No.2/GMB, with regard to is letter dated 27th November, 2019 (Annexure II) and the Respondent No.3/EBTL's letters dated 24th October, 2019 and 6th November, 2019 and restrain Respondent Nos.1 to 3 from interfering with the Petitioner's exclusion usage of the Captive Jetty under the Licenses comprising of the Original and Amended License Agreements and all the three expansions, causing any disruption and taking any actions, which are prejudicial to the rights and interest of the Petitioner, during the pendency, hearing and final disposal of the present Writ Petition.

H. Grant ex­parte interim and/or ad­interim relief in terms of Para­94 (G) above, in the interest of justice;

I. Grant costs of the present Writ Petition, in favour of the Petitioner herein; and

J. Any other appropriate and further relief/s,

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as may be deemed fit, just and proper, may kindly be granted, in the interest of justice."

2. The brief facts for considering draft amendment filed by the petitioners are as under:

2.1 Petitioner No.1, namely, ArcelorMittal Nippon Steel India Limited ("AMNSI") (formerly known as Essar Steel India Limited) is a public limited Company incorporated under the provisions of the Companies Act, 1956 (originally incorporated under the name of Essar Gujarat Limited). It is stated that petitioner No.1 is engaged in the business of manufacturing of steel through its gas based sponge iron plant, established in 1990 and its Hot Rolled Coil Plant established in 1996, both operating at Hazira, Surat, integrated with Captive Jetty constructed at Tapi Estuary under Magdalla Group of Ports, Surat. It is stated that petitioner No.1's change in name from Essar Steel India Limited to ArcelorMittal Nippon Steel India Limited was pursuant to ArcelorMittal India Private Limited's ('AMIPL') acquisition of 100% of the equity share capital of petitioner No.1 on 16.12.2019 and pursuant to the Corporate Insolvency Resolution Process ('CIRP') initiated under the Insolvency and Bankruptcy Code, 2015 ('IBC') and the judgment dated 15.11.2019 passed by the Honourable Supreme Court.

2.2 It is stated by the petitioners in the petition that respondent No.3, namely, Essar Bulk Terminal

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Limited ('EBTL') is a Company incorporated under the provisions of the Companies Act, 1956. Petitioner No.1 holds 26% of the equity share capital of respondent No.3. It is stated that EBTL, a "Special Purpose Vehicle" ('SPV') was incorporated on 21.01.2004 as a mere nominee cost centre, for the purpose of holding licenses in respect of certain expansions to the Captive Jetty for the exclusive benefit and use of petitioner No.1 and providing operational services as may be required by petitioner No.1 from time to time.

2.3 The petitioners have pointed out in the petition about the License Agreement entered into between respondent No.2 herein ­ Gujarat Maritime Board ('GMB') and "Essar Gujarat Limited". The said agreement was executed on 28.12.1994. It is further stated that original License Agreement was thereafter modified on 01.11.2000.

2.4 It is further stated that on 12.02.2009, petitioner No.1 and respondent No.2 - GMB entered into an agreement for expansion, ("First Expansion License Agreement"). Thereafter, on 25.03.2010, respondent No.2 - GMB entered into an agreement for expansion with another Company of the Essar Group i.e. respondent No.3 - EBTL. The said agreement is termed as "Second Expansion License Agreement".

2.5 The third phase extension ("Third Expansion License Agreement") of the Captive Jetty was granted

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on 13.07.2017.

2.6 It is further the case of the petitioners that after the Insolvency and Bankruptcy Code proceedings concluded and the petitioners ceased to be part of the same group as EBTL, respondent No.3 - EBTL began to act as if it enjoyed rights in the Second and Third Expansion License Agreements, independently of the petitioners and not for the exclusive benefit of the petitioners.

2.7 It is the case of the petitioners that licenses and permissions have now to be reverted in favour of the petitioners directly, since the substratum of the licenses granted in favour of EBTL ­ the existence of captive cargo ­ has disappeared. It is stated that to construe the Second and Third Expansion License Agreements, conferring independent rights to EBTL would not only run contrary to the very terms of the licenses and contrary to law, but would also confer benefits on EBTL and its promoters rather than upon the petitioners, for whose captive consumption, these licenses are meant for and this would be a gross violation of Article 14 of the Constitution of India.

2.8 It is stated that despite the applications dated 24.10.2019 and 18.12.2019 submitted by petitioner No.1, respondent Nos.1 and 2 have failed to formally revert the Second and Third Expansion License Agreements into the name of petitioner No.1. It is stated that respondent No.1 ought to have issued

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appropriate directions to respondent No.2 to prevent the Second and Third Expansion License Agreements, which were issued for the exclusive and captive use of petitioner No.1, from being diverted towards any other purpose by EBTL.

2.9 It is stated that respondent No.2 has wrongly not accepted petitioner No.1's exercise of its rights to opt­out under the New Port Policy, 2019 over the entire Captive Jetty vide letter dated 24.10.2019 and on the contrary, respondent No.2 has impliedly accepted the plea contained by EBTL in its letters dated 24.10.2019 and 06.11.2019 to opt­in under the New Port Policy, 2019 with respect to the Second and Third Expansion License Agreements.

3. Respondent Nos.2 ad 3 have filed an affidavit­ in­reply in the petition and raised a preliminary objection about the maintainability of the petition. Mainly, it has been contended that the dispute raised by the petitioners is a private dispute between the petitioners and respondent No.3. The petitioners want confirmation of the contractual rights in the present petition. The disputed questions of facts are raised in the petition and the petitioners have suppressed the material fact including Cargo Handling Agreement (CHA) entered into between respondent No.3 and Essar Steel Limited. It is also stated that petitioner No.1 has not challenged Policy dated 11.10.2019 framed by respondent No.1 for unlocking value in existing port infrastructure by allowing existing Captive Jetty

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holders to handle third­party cargo and opportunity for new players. The respondents have, therefore, prayed that the petition is required to be dismissed.

4. Now, the petitioners have filed a Draft Amendment, in which, it is stated that after filing of the petition, their have been material subsequent developments in relation to the subject matter of the petition whereby (i) GMB has in­principle allotted 140 hectares of land to EBTL for the construction of a LNG Terminal in Tapi River Estuary at Hazira, Surat, Gujarat ("LNG Terminal Project") partly within the Second and Third Expansions to the existing Captive Jetty, which EBTL proposes to exploit commercially, contrary to the terms and conditions of the Second and Third Expansion Agreements. The proposal for construction of the LNG Terminal Project has been recommended for (a) environmental and CRZ Clearance by Expert Appraisal Committee ('EAC') of the Ministry of Environment, Forest & Climate Change ('MoEF') as recorded in the Minutes of its 243rd meeting held on 28/30.09.2020; and (b) CRZ Clearance by the Gujarat Coastal Zone Management Authority on 09.10.2020 and (ii) grant of No Objection Certificate ('NOC') by GMB to EBTL in December 2020/January 2021, that allows EBTL to raise finances/borrow funds and loans by creating a charge/lien over the Second and Third Expansions.

5. Heard Learned Senior Advocates Mr.Harish Salve and Mr.Darius Khambhatta assisted by learned

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advocates Mr.Nirag Pathak, Mr.Nitesh Jain, Mr.Abhishek Swaroop, Mr.Naman Singh, Mr.Adrish Majmudar and Mr.Tushar Hathiramani for the petitioners, Learned Advocate General Mr.Kamal Trivedi assisted by learned Assistant Government Pleader Mr.Ronak Raval for respondent No.1, learned Solicitor General Mr.Tushar Mehta assisted by learned advocate Mr.G.H. Virk for respondent No.2 and learned Senior Advocate Mr.Mihir Joshi assisted by learned advocate Mr.Rahin Patel for Nanavati Associates on behalf of respondent No.3.

6. Learned Senior Advocate Mr.Harish Salve appearing for the petitioners has referred to various averments made in the petition and relevant clauses of the Licence Agreement as well as Second and Third Expansion Licence Agreements entered into between the concerned parties. Learned Senior Advocate has also referred the reliefs prayed for in the petition and, thereafter, pointed out the stand of the respondents in the affidavit­in­reply filed in the petition. Thereafter, it is contended that after filing of the petition, certain development has taken place i.e. in­principle allotment of 140 hectares of land to EBTL by respondent No.2 for the construction of LNG Terminal in Tapi River Estuary at Hazira, Surat, partly within the Second and Third Expansions to the existing Captive Jetty, which EBTL proposes to exploit commercially, contrary to the terms and conditions of the Second and Third Expansion Agreements. The proposal for construction of the LNG

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Terminal Project has been recommended for environmental and CRZ Clearance by the concerned committee as recorded in the Minutes of its 243rd meeting held on 28/30.09.2020 and clearance by the concerned authority on 09.10.2020. NOC is granted by respondent No.2 to respondent No.3 in December 2020/January 2021, by which, respondent No.3 is allowed to raise finances/borrow funds and loans by creating a charge/lien over the Second and Third Expansions.

6.1 The petitioners have, therefore, prayed in the Draft Amendment that direction be issued to respondent Nos.1 and 2 to withdraw the in­principle allotment of the land as well as permission/clearance, if any, granted to respondent No.3 to develop the LNG Terminal Project. It is also further prayed that respondent Nos.1 and 2 be directed to withdraw/revoke NOC granted by respondent No.2 to respondent No.3. It is contended that amendment be allowed as the same is necessary for the determination of the real question in controversy. If it is not allowed, prejudice will be caused to the petitioners.

6.2 Learned Senior Advocate, therefore, urged that this Court may allow the draft amendment so that the petition can be accordingly amended, as the aforesaid developments are required to be brought on record.

7.     On       other         hand,          learned            Solicitor            General





          C/SCA/8703/2020                                             ORDER



Mr.Tushar       Mehta      appearing        for      respondent         No.2        has

opposed the grant of draft amendment and referred the affidavit­in­reply filed by respondent No.2 in response to the draft amendment. It is submitted that the petition, in its unamended original form, seeks transfer/reversion of the Second and Third Expansion Licence Agreements standing in the name of respondent No.3 - EBTL and in favour of petitioner No.1 AMNS. Now, the petitioner in the draft amendment has contended that since the issue of reversion of the Second and Third Expansion License Agreements is subjudice before this Court, draft amendment, which places on record subsequent developments, ought to be taken on record. It is contended that if the draft amendment is granted, it would materially alter and expand the scope of the captioned petition and expects stagnancy in the operations of the jetties in anticipation thereof. Learned Solicitor General would further submit that the draft amendment seeks to agitate an entirely new and distinct cause of action and materially alter and expand scope of the petition and, therefore, the same may not be entertained.

7.1 Learned Solicitor General would further submit that respondent No.2 GMB has not allotted any land to respondent No.3 EBTL as on date and respondent No.2 GMB has also not issued any No Objection Certificate for work of the proposed terminal as on date. It is submitted that in August, 2020, respondent No.2 GMB has informed the Gujarat Coastal Zone Management Authority that the Government of India (Ministry of

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Shipping) is in the process of development and operation of Ro­Pax Ferry Terminal at Hazira and that there may be overlapping of waterfront for the proposed LNG Terminal with Ro­Pax Ferry Terminal. Thus, no permission/NOC has been granted by respondent No.2 GMB to respondent No.3 EBTL. It is further submitted that NOC issued to respondent No.3 EBTL by respondent No.2 GMB is contractually within its rights to issue a NOC and prescribed terms and conditions on which a loan will be obtained by EBTL and AMNS both, in context of their respective License Agreements. It is submitted that adequate safeguards have been put while issuing NOC and issuance of NOC is a different cause of action, which cannot be clubbed in the present petition. It is, therefore, urged that the draft amendment may not be allowed.

8. Learned Advocate General Mr.Kamal Trivedi has also raised similar contentions and opposed the draft amendment.

9. Learned Senior Advocate Mr.Mihir Joshi appearing for respondent No.3 has referred the affidavit­in­ reply filed by respondent No.3 opposing the draft amendment. At the outset, it is contended that the writ petition itself is not maintainable and by way of the present draft amendment, the petitioners want to enlarge the scope of the writ petition. It is submitted that the draft amendment is filed without placing on record any material evidence in support of its wild allegations. It is also contended that the

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draft amendment seeks to introduce new cause of action distinct from the pleadings in the writ petition by attempting to introduce new facts, false avements and grounds on the record of the case. While considering the proposed amendment, this Court has to consider whether such amendment is necessary for the determination of real question in controversy and if the same is allowed, whether any prejudice/injustice will be caused to any other party. Learned Senior Advocate Mr.Joshi would further contend that the allegations made in the draft amendment are wholly unconnected and extraneous to the controversy forming the subject matter in the writ petition and, therefore, the same is liable to be dismissed.

9.1 Learned Senior Advocate Mr.Joshi would further submit that the petitioners have failed to disclose and conceal the correct facts in relation to (a) in­ principle approval of the GMB for allotment of 140 hectares of land, which was in fact given prior to execution of the License Agreement dated 13.07.2017 and not during the pendency of the writ petition and

(b) issuance of No Objection Certificate by respondent No.2 in respect of EBTL's refinancing proposal.

9.2 It is further contended by learned Senior Advocate that under subsisting and valid contracts, the Licenses were given exclusively to EBTL and on the strength of the said licenses, EBTL has constructed, developed and uses the EBTL Jetties,

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which development and use entailed heavy expenditure in excess of Rs.3,200 crores on the part of EBTL from funds raised through its majority shareholders (not petitioners) and its lenders.

9.3 It is further submitted that petitioner No.1 has been defaulting in its payment obligations under the Cargo Handling Agreement ('CHA') since March, 2019. Total outstanding amount as on 17.01.2021 is Rs.726.32 crores.

9.4 Thus, it is contended that the draft amendment is not bonafide and the issues raised in the said draft amendment are not connected with the issues raised in the captioned petition. The petitioners have stated incorrect facts in the draft amendment and the petitioners want to delay the matter by filing such draft amendment. It is, therefore, urged that the draft amendment may not be allowed by this Court.

10. Learned advocate Mr.Nirag Pathak appearing for the petitioners referred affidavit­in­rejoinder filed on behalf of the petitioners to the affidavit­in­ reply filed by respondent No.2 to the draft amendment. It is submitted that respondent No.2 has filed an affidavit opposing draft amendment after hearing on the said issue was over on 16.02.2021. However, when respondent No.2 has filed affidavit­in­ reply and this Court has kept the matter for further hearing, the petitioners have filed the affidavit­in­

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rejoinder. It is submitted that before passing the order, this Court may also consider the said rejoinder.

10.1 It is submitted that the issues of LNG Terminal, which proposes to use 140 hectares of land of the back­up land of the Third Expansion License Agreement and 400 meters of the existing berth of the Second and Third Expansion Agreements are inseparably related to the subject­matter of the petition. It is further submitted that NOC has been issued by respondent No.2 to respondent No.3 EBTL on certain conditions in light of the pendency of the captioned petition. It is, therefore, contended that the issue of NOC is directly connected to the subject of the present petition and when the NOC is granted subsequent to the filing of the petition, draft amendment deserves to be allowed.

11. Having heard learned Senior Counsel appearing for the parties and having gone through the material laced on record, it would emerge that the captioned petition is filed by the petitioners mainly with regard to Second and Third Expansion License Agreements, which are standing in the name of respondent No.3 EBTL. It is prayed that the said licenses be transferred and/or reverted to the petitioners. It is further prayed that the allotment and right/title/interest in any back­up land or reclaimed land granted to respondent No.3 EBTL in connection with the Second and Third Expansion License Agreements be transferred/reverted in favour

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of petitioner No.1. It is the case of the petitioners that applications dated 24.10.2019 and 18.12.2019 submitted by petitioner No.1 for reverting the Second and Third Expansion License Agreements into the name of petitioner No.1 have not been considered by respondent Nos.1 and 2. This petition is filed on 23.07.2020 by the petitioners. Now, the petitioners have filed the draft amendment with a view to bring on record the development, which has taken place after filing of the captioned petition. Mainly, two aspects are pointed out (i) proposal for construction of the LNG Terminal Project has been recommended for environmental and CRZ Clearance by Expert Appraisal Committee of the concerned Ministry as recorded in the Minutes of its 243rd Meeting held on 28/30.09.2020 and (ii) CRZ Clearance by the Gujarat Coastal Zone Management Authority on 09.10.2020. It is also stated that respondent No.2 GMB has granted NOC to respondent No.3 EBTL in December 2020/January 2021, which allows respondent No.3 EBTL to raise finances/borrow funds and loans by creating a charge/lien over the Second and Third Expansions. Thus, the draft amendment is primarily connected with the Second and Third Expansion License Agreements. From the affidavit­in­reply filed by respondent No.2 GMB it is clear that respondent No.2 GMB has not issued any NOC for the work of the proposed terminal as on date and in August, 2020, respondent No.2 GMB has informed the concerned authority that the Government of India is in the process of development and operation of Ro­Pax Ferry Terminal at Hazira.

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Permission is not granted till date. It is also clear from the affidavit that the Government of Gujarat on 09.10.2020 granted permission, which categorically stipulates that EBTL shall obtain NOC from GMB before commencing any enabling activities for this project.

At this stage, it is required to be noted that it is a specific case of the petitioners that the issues of LNG Terminal, which proposes to use 140 hectares of land of back­up land of the Third Expansion License Agreement and 400 meters of the existing berth of the Second and Third Expansion License Agreements are inseparably related to the subject matter of the present petition. Thus, from the record, it is revealed that 140 hectares of land allotted by respondent No.2 GMB is a back­up land of the Third Expansion License Agreement is now being used for the purpose of LNG Terminal. Thus, the said aspect is connected with the issue involved in the captioned petition and, therefore, the aforesaid development is required to be brought on record of the captioned petition.

12. It further transpires that respondent No.2 GMB has, in the affidavit opposing draft amendment, specifically stated that while issuing NOC in favour respondent No.3 EBTL, adequate safeguards have been put in place inter­alia in light of the pendency of the captioned petition. It is specifically stated in the affidavit­in­reply that it has also been stipulated that respondent No.3 EBTL shall be

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required to honour and accept the final, binding outcome, following all appeals, from this Court or Hon'ble Supreme Court of India (in case of appeal), of the ongoing legal dispute between AMNS and EBTL in relation to the "Licensee" status of EBTL under the captioned License Agreements. Thus, from the aforesaid averments made by respondent No.2 GMB in the affidavit itself, it can be said that the issuance of NOC by respondent No.2 GMB to respondent No.3 EBTL cannot be termed as separate cause of action, which is not connected with the issue involved in the captioned petition.

13. The main contention raised by the learned counsel appearing for the respondents in the captioned petition is that the petition itself is not maintainable and it involves contractual dispute between the parties, however, the said contention can be examined at the time of hearing of the captioned petition. However, on that ground, the development, which has taken place after filing of the captioned petition and which has bearing on the issue involved in the captioned petition is required to be brought on record and after the petition is amended, captioned petition can be heard on its own merits. Moreover, while considering the proposed draft amendment, this Court has to consider whether the amendment is necessary for the determination of real question in controversy and if the same is allowed, whether any prejudice or injustice will be caused to any other party.

            C/SCA/8703/2020                                               ORDER




14. Thus,          this       Court      is     of     the    view         that         the
amendment           in       question         is       necessary            for         the

determination of the real question in controversy in the captioned petition and if the same is not allowed, prejudice will be caused to the petitioners. However, if the amendment is allowed, no prejudice will be caused to the present respondents.

15. In view of the aforesaid discussion, Draft Amendment is allowed. The petitioners to carry out the same, forthwith.

It is open for the respondents to file a reply to the amendment on merits.

Registry to list this petition for hearing on 23.03.2021.

(VIPUL M. PANCHOLI, J) piyush