IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 4455 of 1999 with SPECIAL CIVIL APPLICATION No 4456 of 1999 with SPECIAL CIVIL APPLICATION No 855 of 2000 with SPECIAL CIVIL APPLICATION No 870 of 2000 with CIVIL APPLICATION No 7373 of 2000 in SPECIAL CIVIL APPLICATION No 4456 of 1999 with CIVIL APPLICATION No 7372 of 2000 in SPECIAL CIVIL APPLICATION No 4455 of 1999 For Approval and Signature: Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- DOLLY SALT INDUSTRIES Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 4455 of 1999 MR TS NANAVATI for Petitioners MR DN PATEL AGP for Respondent Authority MR PR NANAVATI for Respondent No. 6, 7 2. Special Civil ApplicationNo 4456 of 1999 MR TS NANAVATI for Petitioners MR DN PATEL AGP for Respondent Authority MR PR NANAVATI for Respondent No. 7 3. Special Civil Application No : 855 of 2000 MR PR NANAVATI for Petitioners MR DN PATEL AGP for Respondent Authority MR TS NANAVATI for Respondent No. 7 4. Special Civil Application No : 870 of 2000 MR PR NANAVATI for Petitioners MR DN PATEL AGP for Respondent Authority MR TS NANAVATI for Respondent No. 7 -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 04/10/2000 CAV JUDGEMENT #. Mr.T.S.Nanavati, learned advocate appearing on behalf of the petitioner in SCA No. 4455 of 1999 and SCA 4456 of 1999 and Mr.P.R. Nanavati, learned advocate appearing on behalf of the petitioners in SCA No. 855/2000 and SCA No. 870 / 2000 and Mr.D.N.Patel, learned AGP appearing on behalf of the respondent authorities State of Gujarat, Additional Chief Secretary (Appeals), Revenue Department, Collector and the Deputy Collector so also Mamlatdar. #. In Special Civil Application No. 4455 of 1999 and Special Civil Application No. 4456 of 1999 notices have been issued by this Court and both the matters are pending at notice stage but ad-interim relief which has been granted initially by this Court directed to be continued until further order by the order dated 12th January, 2000. Therefore, two Civil Applications No.7373 of 2000 in Special Civil Application No.4456 of 1999 and Civil Application No.7372 of 2000 in Special Civil Application No. 4455 of 1999 filed the learned advocate Mr.P.R. Nanavati for vacating such ad-interim orders passed by this Court. RULE in all respective petitions. Learned advocates appearing for the respective respondents in each petition waive service of rule on behalf of the respondents. #. These all four matters with two Civil Applications are heard together and with consent of all the learned advocates appearing on behalf of the respective parties, the matters have been taken up for final hearing and by this common judgment, these matters are proposed to be disposed of finally. #. The brief facts giving rise to these group of petition namely Special Civil Application No. 4455 of 1999 and Special Civil Application No. 4456 of 1999 are as under :- The Special Civil Application No. 4455 of 1999 has been filed by Dolly Salt Industries and the Special Civil Application No. 4456 of 1999 has been filed by Akash Salt Industries. In both the petitions almost common facts are involved. In the said petitions, the petitioner has challenged the order passed by the Collector, Kachchh dated 23rd April, 1999 Annexure-M. The main prayer sought for in Special Civil Application No. 4455 of 1999 is to direct the respondent No.3 to forthwith comply to the order of the respondent No.2 in its true letter and spirit and in furtherance thereof the respondent No. 3 be directed to take all steps for allotment of surveyed land admeasuring 330 acres situated outside the boundary limits of Survey No. 169 of village Dhurb towards open Sea for the purposes of lease for Salt manufacturing. Even similar prayer has been made by the petitioner in Special Civil Application No. 4456 of 1999. The respondent Nos. 6 and 7 has filed affidavit-in-reply in Special Civil Application No. 4455 of 1999 on 20th July, 1999 and produced the documents along with said reply. Shri D.L.Parmar, Mamlatdar, Mundra Kachchh has filed affidavit in reply against the petition on 18th April, 2000 so also Shri Kamal Dayani, Collector of Kachchh has also filed reply dated 29th June, 2000. Thereafter, affidavit in rejoinder has been filed by the petitioner on 31st July, 2000. The case of the petitioners are that they applied for allotment of 330 acre of land abutting to Survey No. 169 of village Dhurb Taluka Mundra District Kachchh towards the sea for a purpose of lease as per the guidelines and norms issued by the Government of Gujarat from time to time and lastly formalized under Resolution dated 31st December, 1981 for manufacturing of salt and the prescribed fee of Rs.3000/was also paid. The said application for allotment of the land in question according to the petitioner submitted on 1st December, 1995. Thereafter, the land in question for allotment to the petitioner came to be surveyed and measured by office of the DILR competent authority on 11-3-1996. The application of the petitioner came to be rejected on 28th January, 1997 for the first point of time on the ground that the said land was required for the purposes of backward class Adivasi to which the petitioners replied vide application dated 1st February, 1997 satisfactorily replying to the contentions raised therein. The request of the petitioners was to the authority in the letter dated 15th February, 1997 addressed to the Collector, Bhuj that if the land in question is not available to the petitioner, then the petitioners are prepared to take remaining land and therefore, their applications may be reconsidered. In light of this request, the Mamlatdar, Bhuj gave a positive opinion for the allotment of the land to the Deputy Collector, Bhuj by letter dated 13th May, 1997 in turn communicated the same to the Collector on 29th May, 1997. Thereafter, the Deputy Collector, Bhuj Sub Division has also given opinion in favour of the petitioner subject to obtaining the opinion from the Gujarat Maritime Board in respect of the land in question. Thereafter, by order dated 2nd June, 1998, the Collector, Kachchh has decided that application submitted by the petitioners dated 1st February, 1997 with a request to reconsider the demand of petitioners for remaining land in question. The Gujarat Maritime Board has earmarked the land in question for the future need and also notified it requiring for the purpose of industry relating to port and therefore, Gujarat Maritime Board has not given any opinion for allotment of the land in question and on the contrary, Gujarat Maritime Board has not granted no objection certificate in favour of the petitioner and therefore, ultimately the Collector has rejected the application submitted by the petitioner by order dated 2nd June, 1998. The said order of the Collector dated 2nd June, 1998 has been challenged by the petitioner before the Additional Chief Secretary (Appeals), Revenue Department by way of filing revision application No. 24/98 and No.25/98 under the provisions of Section 211 of the Bombay Land Revenue Code. It is necessary to note that in the said proceedings, the respondent Nos. 6 and 7 namely Adani Chemicals Limited and Adani Port Limited were not party to the proceedings. However, the Additional Chief Secretary (Appeals), Revenue Department had decided the said revision application No. 24/98 and 25/98 submitted by the petitioners have been allowed and the order passed by the Collector, Kachchh dated 2nd June, 1998 has been quashed and set aside and it is directed to the Collector, Kachchh to take appropriate decision immediately as per the observations made in the said order within period of two months. According to the petitioner the respondent No.3 is sitting tight over the matter on erroneous footing that allotment of land to respondent Nos. 6 & 7 by order dated 23rd April, 1999 by Collector and the land cannot be allotted to the petitioners. According to the petitioners said consideration of the Collector, Kachchh is erroneous on the footing that the land allotted to the respondent No. 6 and 7 are 10 km away into sea from survey No. 169 of village Dhurb Taluka Mundra of District Kachchh and there is no overlapping in allotment of the land amongst the parties interse. In the event if there is such overlapping of allotment, it is stated by the petitioners that the allotment to the respondent No.6 and 7 is in total violation of all the norms in relation to priority procedure and even otherwise and has been passed in a irregular manner and without there being any basis of Government policy decision or otherwise as the Government largess. Therefore, the petitioners are challenging said inaction at the end of the respondent No.3 on one hand and poste - haste action taken by the Collector, Kachchh in passing the order in favour of the respondent Nos. 6 and 7 dated 23rd April, 1999 when prior thereto there was a order of superior authority passed in accordance with law by the respondent No.2 in favour of the petitioner and in total derogation of the priority claim of the petitioner in allotting the land to the respondent No.6 and 7 by the respondent No.3. In the facts and circumstances as narrated in the petition is highly irregular and arbitrary and hence the prayer has been made by the petitioner that the order dated 23rd April, 1999 is required to be quashed and set aside and to direct the respondent No.3 to pass appropriate orders with regard to the pending application of the petitioners over which the respondent is sitting tight since last five months. #. The brief facts of Special Civil Application No.855 of 2000 and Special Civil Application No. 870 of 2000 are as under :- The petitioners are public limited companies registered under the Indian Companies Act, 1956. According to the petitioners on 10th January, 1994 permission for captive jetty was granted to the petitioner No.2 and on 11th September, 1996, no objection certificate was issued to the petitioner by Gujarat Maritime Board. On 30-12-1996, the petitioner made application to the concerned Mamlatdar for allotment of the land of 500 acres. That on 12th September, 1997, Gujarat Maritime Board wrote a letter to the Collector of Bhuj instructing him not to allot any of the lands within the port area. The petitioners had deposited amount towards the price of land and obtained a receipt on 10th December, 1997. The State Government issued notification dated 21st January, 1998 declaring port limit. On 1st June, 1998, Gujarat Maritime Board wrote a letter to the petitioners to utilize the land in question only for the purpose of port related and port development activity. The petitioners, on 9th June, 1998 requested to change the use of the land from industrial use to port back up and related use and the request was granted. The petitioners vide application dated 7th October, 1998 requested on similar lines as above to the Deputy Secretary, Revenue Department for allowing the change of purpose of using the land. On 29th January, 1999, Gujarat Maritime Board wrote a letter mentioning the land earmarked for development of Mundra Port and thereafter, on 23rd April, 1999 the District Collector issued order of allotment of the land in question in favour of the petitioners. In both these petitions, the petitioners are challenging the order dated 03/2-3/99 passed by the Additional Chief Secretary, Revenue Department (Appeals) as being wholly arbitrary, illegal and violative of the principles of natural justice as also contrary to the record. #. In both these petitions, the prayer is to set aside the order passed by the respondent No.2 dated 3.2/3.99 Annexure-A and to direct the respondent No.3 to hand over vacant and peaceful possession of the land in question allotted to the petitioners as per the order passed by him dated 23rd April, 1999. #. The main grievance of the petitioners in these petitions are that the respondent No. 2 - The Additional Chief Secretary (Appeals), Revenue Department has passed the final order against the principles of natural justice. The petitioners are directly concerned in respect of the land in question which has been granted by the respondent No.2 in favour of the respondent No. 4 Akash Salt Industries and Dolly Salt Industries. #. It is the case of the petitioners that said authority has not given any opportunity of hearing and order passed by him adversely affected to the rights of the petitioners. It is also pointed by the petitioners that the respondent No. 2 has committed error to the effect that there is no necessity to have no objection certificate from Gujarat Maritime Board which is contrary to law and according to the provisions of the Indian Ports Act, 1908. The State Government has powers to declare the port limit in respect of the minor ports and accordingly the port limit of Mundra port has been declared by the State Government from time to time and lastly such revised port limit declared by the State Government vide Port and Fisheries Department was issued vide Notification dated 21st January, 1998, wherein said port limit declared by the Government of Gujarat along with map clearly to go to show that land in question is situated within port limit declared by the Government of Gujarat. Therefore, according to the petitioners that once the land is situated in port limit declared by the Government, it is incumbent upon the Revenue Department to call for concurrence from the port department Gujarat Maritime Board before allotting the said land to any party other than the Gujarat Maritime Board. Similarly, circular issued by the State Government dated 24th January, 1968 which specifically requires that the land situated within the port limit cannot be disposed of or given to a third party on long term lease basis without obtaining concurrence from the Port Department i.e. from Gujarat Maritime Board. Even according to the provision of Gujarat Maritime Board, 1981 though the ownership of the land situated within the port limit does not stand transferred to the Port Authority, the management and control of the property vests with the Gujarat Maritime Board under Section 20 of the Gujarat Maritime Board Act, 1981. Therefore, it is the case of the petitioner that while allotting the land to the respondent No.4 by respondent No.2. No Objection Certificate from Gujarat Maritime Board was not necessary which finding is contrary to law and therefore, order passed by the respondent No.2 is required to be quashed and set aside. It is also submitted by the petitioners that the order of respondent No.2 amounts to clearly reflects non application of mind. It is also submitted that it was not considered by the respondent No.2 that the land in question which has been ordered to be allotted in favour of the respondent No. 4 is the very same land in question which was already allotted to the present petitioners and without ascertaining these facts, the respondent No. 2 proceeded to allot the land in favour of the respondent No.4. It is also case of the petitioners that the development of the port is paramount consideration rather than development of salt works. The port can be developed on sea coast whereas the development of salt works can be done even at distance place. The land falling within the port limit cannot be allotted without first having proper No Objection Certificate from Gujarat Maritime Board. One example has been given by the petitioners in respect of Bharat Salt Works which held the land under long term lease basis for last more than 60 years. However, after the pronouncement of Port Policy and after the Gujarat Maritime Board earmarked the land admeasuring 5200 acres for the development of Mundra Port in joint venture with the petitioners, the said Bharat Salt Works had to vacate the land on expiry of lease period since the land on which the said Bharat Salt Works was situated and very land was overlapped with the land which was earmarked by the Gujarat Maritime Board for the development of port. Therefore, according to the petitioner if an opportunity was given to the petitioner by the respondent No.2 and then all these facts must have been pointed out to the respondent No.2. The petitioner has also pointed out one identical case decided by this Court on the basis of the consent between the parties in Special Civil Application No. 6558 of 1998 filed by one M/s Surya Salt Industries for allotment of the land for the purpose of Salt Works claiming the allotment of the land almost on similar ground of considering their application on priority as per the Government Resolution dated 31st December, 1981. In the said petition also, claim of said Surya Salt Industry has been objected by the Gujarat Maritime Board and therefore the said industry has considered another portion of the land which has not been objected by the Gujarat Maritime Board. The petitioner has also submitted that no objection certificate as required from Gujarat Maritime Board has not been given to respondent No. 4 and therefore unless such no objection certificate is granted by the Gujarat Maritime Board, the land in question cannot be allotted in favour of the respondent No.4. The petitioner has also pointed that one of the condition of the circular dated 31st December, 1981 issued by the Government as Item No. 2(5) sub clause (KH) wherein, it has been mentioned that if the land which has been demanded by the concerned party and if that land is situated within area of port then, it is necessary to have No Objection Certificate from the port authority and if it is covered under the forest area,then it is also necessary to have Non Objection Certificate from forest department. Therefore, even according to the condition of allotment as per the Government Circular dated 31st December, 1981, such no objection certificate from the Gujarat Maritime Board is necessary being port authority and when the same has not been granted in favour of the respondent No.4 and therefore, the order passed by the respondent No.2 in question is contrary to even circular issued on 31st December, 1981 and contrary to the port policy and therefore, according to the petitioners orders passed by the respondent No.2 is contrary to the principle of natural justice because in the said proceedings, the petitioners were not heard and no opportunity was given. The land which has been allowed to the petitioners by the State Government by order dated 8th October, 1997 prior to the order passed by the respondent No. 2 which has been ignored by the respondent No.2 and therefore, according to the petitioners, said order is required to be set aside. #. After considering the averments made by the petitioners in respect of the two groups claiming the same land in question, it is necessary to consider the affidavit in reply filed by the Mamlatdar and Collector, Kachchh in Special Civil Application No. 4455 of 1999. The Mamlatdar Shri D.L.Parmar has filed the affidavit and pointed out the correct facts. According to him that Dolly Salt Industries, Adipur, Kachchh vide their application dated 1st December, 1995 demanded 330 acres of land of village Dhrub, Taluka : Mundra outside Traverse S.No. 169. Since necessary details have not been submitted by the petitioner, the said application was rejected vide order dated 28th January, 1997. The petitioners had shown their willingness and readiness to submit all the necessary details in support of their demand by application dated 15th February, 1997. On receipt of the said application, instructions were issued to Mamlatdar and Deputy Collector, Mundra to submit necessary proposals vide letter dated 10th April, 1997. However vide letter dated 2nd June, 1998,the said application was rejected because keeping in view the need of the land in question in future for the purpose of allotting the same to Gujarat Maritime Board and also the need for reserving such land for the purpose of the development of New Mundra Port and also industries based on the said port. Being aggrieved by the said decision, the petitioner approached the Additional Chief Secretary (Appeals), Revenue Department under Section 211 of the Land Revenue Code. The revisional authority vide order dated 3/2-3/1999 allowed the said revision application and directed the Collector to decide the application of the petitioner within two months. However, vide application dated 30th December, 1996, Adani Port Ltd and Adani Chemicals Ltd. made an application for allotment of 500 acres of land for industrial purposes. The proposal vide letter dated 31st May, 1997 was submitted to the Revenue Department. The Revenue Department vide its order dated 8th October, 1997 allotted 500 acres of land to Adani Port Ltd and Adani Chemicals Ltd. for industrial purposes and also for industries related purposes like storage, godown etc. The Adani Industries made necessary payment pursuant to the said order and accordingly formal order dated 23rd April, 1999 was passed in this regard in compliance with the aforesaid order passed by the Government. Allegation of malafide has been denied by the Mamlatdar. Therefore, according to the Mamlatdar that land allotted to Adani Group of Industries and also the demand made by Dolly Salt Industries are overlapping and hence no decision was taken by this office pursuant to the order passed by the revisional authority. The Mamlatdar has also further mentioned that vide letter dated 3rd April, 1998, the Gujarat Maritime Board has also informed the office that taking into consideration the future need of land for the purposes of development of the port and port related industries, no land should be allotted to any other purposes. Copy of the said letter dated 3rd April, 1998 has been annexed to the affidavit and therefore, according to the Mamlatdar in light of the letter dated 3rd April, 1998 of Gujarat Maritime Board, the order passed by the Collector dated 2nd June, 1998 rejecting the application of the petitioner was legal, valid and proper order. According to the Mamlatdar, in pursuance of the order passed by the revisional authority, no order has been passed from the office of the Collector and the present petition is premature. ##. In light of the averments made in affidavit filed by the Mamlatdar, now it is also to consider the affidavit filed by Mr.Kamal Dayani, Collector of Kachchh in pursuance to the direction issued by this Court. According to the Collector, the petitioner claiming priority over the land bearing Survey No. 169 of village Dhurb and has demanded by the petitioner vide their application dated 1st December, 1995 on the basis of the Government Resolution dated 31st December, 1981 and consequently has also interalia challenged the order passed by this respondent dated 23rd April, 1999 passed in favour of the respondent Nos. 6 and 7. It is also interalia prayed for by the petitioner to implement the order passed by the respondent No. 2 dated 3/2-3/ 1999. The Collector has specifically mentioned that on bare perusal of the order passed by the respondent No. 2 dated 3/2-3/1999. It appears that the petitioner has suppressed certain material facts from respondent No.2 and while dealing with revision application of the petitioner, the respondent No.2 has proceeded on the basis that the land in question as claimed by the petitioner does not overlap with the land allotted to responent No. 6 and 7 herein. However, in fact, after examining the record, according to the Collector, the land claimed by the petitioner from Survey No. 169 of village Dhurb is