SCA/2630520/2007 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 26305 of 2007 With SPECIAL CIVIL APPLICATION No. 26310 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= MAHAVIR METAL CORPORATION & 1 - Petitioner(s) Versus THE STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MS MEGHA JANI for Petitioner(s) : 1 - 2. MS B. KOTECHA, AGP for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1, MR PR NANAVATI for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 06/08/2008 SCA/2630520/2007 2/14 JUDGMENT COMMON ORAL JUDGMENT 1. As the questions arise for consideration are common and inter-connected they are being considered by this common judgement. 2. Special Civil Application No.26305 of 2007 has been preferred by the petitioners for appropriate writ to quash and set aside the letter dated 30.8.2007 of levying the premium for the area of 2250 sq. mtrs. The petitioners have also prayed for the other reliefs to declare that the permission to utilize the plot granted to the petitioners as effective for a period of five years from the date of execution and it shall not be from the date of allotment of the plot. As per the petitioner, the plot allotted to the said petitioner is plot No.84F. 3. The petitioners of Special Civil Application No.26310 of 2007 have prayed for the reliefs, inter alia, to direct the respondent to execute the agreement and permit the petitioners to carry on activity on plot No.169 as was originally allotted and it is prayed to quash SCA/2630520/2007 3/14 JUDGMENT and set aside Clause 4B to the extent it requires permission holder to pay the development authorities for the additional area on the pro rata basis on their bid. It is also prayed by the said petitioners that appropriate directions be issued to the respondents to charge development charges and etc., for utilization of plot No.169 on the basis of the area of the plot, which is stated as 1050 sq. mtrs. 4. Heard Ms.Jani, learned Counsel for the petitioners, Mr.Nanavati, learned Counsel for the respondent Board and Ms.B. Kotecha, learned AGP for the State Government. 5. The contention raised on behalf of the petitioners is that when the bid was undertaken respective areas of the plot were mentioned and, therefore, it would be required for G.M.B., to ensure that such area is made available to the offerers, who are petitioners herein at the time when the possession is handed over. It has been submitted that as per the measurement undertaken by the officer of the G.M.B., actual space is SCA/2630520/2007 4/14 JUDGMENT not available as marked for plots of both the petitioners and the area covered by sea tide is required to be excluded and, therefore, it has been submitted that if respondent is not in a position to allot the actual areas the premium will be reduced proportionately and it is not open to G.M.B., to insist for the full premium as per the amount offered, but it should be on pro rata basis. The aforesaid is a common challenge in both the petitions. 6. It was also submitted on behalf of the petitioners of Special Civil Application No.26310 of 2007 that the original plot allotted to the petitioners was No.169 having dimension 30 x 45 mtrs., i.e. 1350 sq. mtrs. Therefore, it is required for G.M.B., to issue the plot of that size, excluding the area covered by sea tide and further the additional area, which is identified as Plot No.V-6 having dimension of 27 x 50 mtrs. is also allotted to the petitioners, which cannot be compelled by the respondent Board. It is submitted that the petitioners are desirous to get the possession of the plot, SCA/2630520/2007 5/14 JUDGMENT which is allotted and they cannot be compelled to accept the additional area of the other plot also at the same premium. Therefore, as the Board is insisting for the acceptance of the plot of 169 as well as plot No.V-6, such action is bad in law and, therefore, this petition. It was also submitted that on behalf of the petitioners that the period of five years should begin from the date on which the agreement is entered into and the permission is granted to the petitioners for ship breaking over the plot and it cannot be from the date of permission as mentioned in the allotment letter. It was submitted that the consequence would be that the petitioner would be deprived of using the plot for the respective period of five years or even lesser period may be available and would cause loss to the petitioners and, therefore, this Court may consider the said aspect. 7. Whereas on behalf of the respondent Board, it has been submitted that at the time when the first bid was undertaken the area mentioned were approximate and the reason was that there could SCA/2630520/2007 6/14 JUDGMENT not be any control over the sea tide and the measurement could vary. The matter was also considered by the Board and it was found that the standardized measurement be considered as the basis. Further, it was for the offerers to verify the actual plot as per the condition of the bid and thereafter to make offer. Once the offer was made with the conscious knowledge of the measurement of the area, it is not open for the petitioners to back out from the same. It was submitted that since all the plots are touching the sea some times because of the sea tide, the vacant land may not be available to the fullest extent, but the same is unavoidable aspect, more particularly when the user has to beach the ship brought for breaking purpose in the sea and consequently the contention as raised, if considered, would result into permitting the petitioner to back out from the representation made. Therefore, the petitioners cannot seek the relief as prayed for the allotment of the actual measurement or in alternative, the modification of the amount of SCA/2630520/2007 7/14 JUDGMENT premium on account of certain area covered under sea tide. It was submitted that all other allottees, irrespective of the actual site available, have accepted the allotment and have entered into agreement and they have started using the plot, whereas the petitioners by raising the present disputes have consumed the time. Therefore, if the delay is on account of the excuse by the petitioners, they have to suffer and the period of five years would be required to be counted from the date of allotment/permission to use and not from the date of agreement as sought to be canvassed. It was submitted that so far as the plot No.169 is concerned, since after the bid at the first instance there were various litigations up to Hon'ble Supreme Court and thereafter the fixed policy was required to be undertaken, which included the rearrangement of the plots. At that stage, representation was made by all the bidders, including the petitioners of Special Civil Application No.26310 of 2007 for acceptance of the larger area also, if allotted, SCA/2630520/2007 8/14 JUDGMENT by finalising the offer. Therefore, the said petitioners namely; Bhuval Industries, cannot be permitted to back out. It was submitted that the location of the adjacent area is such that it may be difficult for GMB to make allotment to some other party independently. Therefore, larger area is allotted to the petitioners in a manner that it can make convenient use for ship breaking. It was, therefore, submitted that the ground as sought to be canvassed on behalf of the petitioners is an excuse for delaying the utilization of the plot and for reduction of the amount is without there being any valid basis. 8. It deserves to be recorded that at the time when the offers were made the same were with specific terms and conditions of the tender documents. The instructions did provide for inspection of the plot vide Condition No.9 before submitting the offer. Therefore, it was required for the respective offerers to submit offer after having inspected the plot. Further, both the plots in question are touching the sea and there is no control over sea tide. If because of the sea SCA/2630520/2007 9/14 JUDGMENT tide there is temporary reduction of the vacant area of the plot, such cannot be valid basis for reduction of the premium as sought to be canvassed on behalf of the petitioners. As declared by GMB, the standardized measurement was undertaken, keeping in view the normal space available, but respondent Board is right in submitting that if due to sea tide certain vacant area is not available for temporary period, the same would not be a valid ground for reduction of the premium on pro rata basis as sought to be canvassed. The reason being that the plot is touching the sea and it will be required for the user of the plot to beach the ship over a portion where there is sea water also. Therefore, merely because certain area of the plot is covered by sea tide for a temporary period, it cannot be said that the offered area is not available and, therefore, the premium is required to be reduced proportionately. Under these circumstances, the contention as sought to be canvassed on behalf of the petitioners for reduction of the premium on pro rata basis due SCA/2630520/2007 10/14 JUDGMENT to alleged non-availability of the area due to sea tide cannot be accepted. 9. So far as the petitioners of Special Civil Application No.26310 of 2007 is concerned, it is true that the offer was made of plot No.169 and it may be that GMB on account of the revision and various litigations must have rearranged the plots, but that may not compel the said petitioners to accept the offer for an allotment of additional area also. However, the learned Counsel appearing for the petitioners, during the course of the hearing, under the instructions of her client, declared before the Court that the petitioners have no objection in accepting the additional area of 27 x 50 mtrs of Plot No.V-6 simultaneously with the original area of Plot No.169. Therefore, in view of the aforesaid observations of this Court on account of the non-availability of the vacant area due to sea tide, if the petitioner is desirous, the petitioners may accept the allotment of Plot No.V-6. I find it proper to leave the matter at that stage since the learned Counsel appearing SCA/2630520/2007 11/14 JUDGMENT for the petitioners has abandoned the challenge for compelling the petitioners to accept the additional area of 27 x 50 mtrs., of Plot No.V- 6. 10.On the aspects of permitting the actual utilization of the plot from the date of allotment is concerned, the matter deserves consideration to the extent for the period of five years. The contention of the petitioners is that it is only after the agreement is entered into the plot is to be used and not prior thereto, whereas the case of the respondent Board is that once the permission letter is issued, the petitioners can make use for shipping activities and, therefore, the period of five years is to be considered from the date of permission letter issued by the respondent Board. The learned Counsel for the respondent Board had also relied upon the Regulation No.5, which provides for the permission for utilization of the plot for shipping recycling. Therefore, it was submitted that it should be treated from the date of SCA/2630520/2007 12/14 JUDGMENT allotment. It was also submitted that all other offerers whose list is given on page 93 have accepted the conditions and have started making use of the plot. Therefore, it has been submitted that if the petitioners are permitted to use the plot from the date of agreement, a different treatment would be available to them and it may disturb the schedule of the Board at the time of re-auction for the entire block. 11.It appears that the period of five years is to be counted as per the regulation from the date on which, the permission letter has been issued. Therefore, it would be required for the person concerned, who has made offer/bid as well as by the officer of the board to abide by the provisions of the regulation. It is an admitted position that the letters for permission were issued in respect of both the petitioners, however, it is on account of the dispute raised for non-availability of the actual measurement, the petitioners concerned have not made use or have not enjoyed permission letter. As observed earlier the ground for raising dispute is not found valid by this Court. Therefore, if the SCA/2630520/2007 13/14 JUDGMENT petitioners have not made use of the plot on account of the aforesaid dispute, though permission letters were granted in their favour, would not be sufficient ground to extend the period for use. The contention of the learned Counsel for the petitioners that in the very permission letter, it has been mention that it is only after agreement is entered into plot can be utilised for ship breaking and therefore, if the ship breaking activities are not permitted, unless the agreement is entered into, period must be treated as commenced from the date of agreement, and not on the date when permission letter has been issued cannot be accepted. As such the permission for utilisation of the plot cannot be fully equated with the ship breaking activity. It may be that after utilisation of the plot has started by person concerned, the ship breaking activity would also be permitted after the agreement, but on the face of the regulation, such contention cannot be accepted as sought to be canvassed on behalf of the learned Counsel for the petitioners. 12.It was alternatively submitted by the learned Counsel for the petitioners that if the period SCA/2630520/2007 14/14 JUDGMENT is not treated as having commenced from the date of the agreement, this Court may consider the matter for charging of the premium in proportion to the availability of the period from the date of agreement. 13.In my view on the face of the regulation, such prayer also cannot be accepted. 14.Under these circumstances, relief for treating period of five years from the date on which the agreement is entered into cannot be accepted. 15.In view of the above, no case is made out for interference. Hence, rejected. 6.8.2008 (Jayant Patel, J.) vinod/suresh