B.P.DAS, J & SANJU PANDA, J. W.P.(C ) NO.16172 OF 2008 (Decided on 29. 10. 2011) DEEPAK FERTILIZERS & PETROCHEMICALS CORPORATION LTD. ………Petitioner. .Vrs. PARADIP PORT TRUST. ………Opp.Party CONSTITUTION OF INDIA, 1950 – ART.226. For Petitioner - Ms. Soma Patnaik, A.Patnaik & B.S.Rayaguru. For Opp.Party - M/s. S.K.Padhi, Sr.Advocate, Mrs.Mrinalini Padhi, Goutam Mishra & Anand Das. B. P. DAS, J. The petitioner, M/s Deepak Fertilizer and Petrochemicals Corporation Ltd. which is a company registered under the Companies Act, 1956 challenges Resolution No. 65/2007 dated 17.10.2007 under Annexure-30 and the consequential order dated 2.11.2007 under Annexure-31, passed by the opposite party-Paradip Port Trust, wherein it has been decided not to allot Ac.39.00 of Port land in its favour, even though the same was originally allotted to it in a tendering process. 2. The brief facts as narrated in the writ application tend to reveal thus: The Paradip Port Trust, hereinafter to be referred as ‘PPT’, had allotted 39 acres of land in favour of the petitioner for setting up Fertilizers, Chemicals and Ancillary Products Manufacturing Units after the petitioner emerged as the highest bidder in the tender process and after the petitioner deposited the required premium and other consideration amount. Thereafter the PPT cancelled the said allotment, challenging which the petitioner approached this Court in W.P.(C) No.11946 of 2006. In the counter affidavit filed by the PPT in the said writ application, the reason ascribed for cancellation of the allotment was that the establishment of the factory by the petitioner-company would pose a threat to the environment and water sources and that a dispute was pending between Government of Orissa and the PPT with regard to title of the concerned land. The other reason for such cancellation was that the volume of cargo is low compared to the extent of the land allotted i.e. 39 acres. In the meantime, the Collector, Jagatsinghpur, who had shown concern about pollution hazards with regard to establishment of the industry by the petitioner-company, represented to the Chairman, PPT by making a workable suggestion that preventive measures could be taken by the petitioner-company and in that case there would be no apprehension of environment pollution. In that writ application, the petitioner had argued that the Collector in his letter had made it amply clear that there would neither be any threat to the environment nor there would be any pollution hazard. It was also argued by the petitioner that on 10.10.2006, the Principal Secretary to Government of Orissa, Commerce and Transport Department, being the representative of the State Government in the PPT Trust Board addressed a letter to the Chairman PPT, requesting to re-consider the decision for cancellation of allotment of land and in the said letter it was stated that in the high level meeting of State Government it was also clarified that the dispute pending between the State Government and the PPT would not come on the way of the PPT to allot the land in favour of the petitioner company. As to Cargo Handling Capacity, it was clarified by the petitioner-company that apart from its 3 lakh tonnes of direct cargo, the petitioner company’s products would indirectly contribute to increase mining which in turn would help to contribute and generate enormous cargo, which would substantially augment the revenue of the PPT. Considering the submissions of the respective parties that certain developments had taken place during the pendency of the writ application, this Court disposed of the writ application by order dated 13.12.2006 vide Annexure-24 directing the PPT to take a fresh decision with regard to allotment of Ac.39.00 of land in favour of the petitioner after recalling the order of cancellation of allotment previously made in favour of the petitioner keeping in view the letters under Annexure-15 and 16 and the decision taken by the High Level Committee in its meeting held on 19.6.2006. The letters of the Collector, Jagatsinghpur and the Principal Secretary, Commerce and Transport Department which were annexed to the aforesaid writ applications as Annexures-15 and 16 are also annexed to the present writ application as Annexures-22 and 23 respectively. 3. After the aforesaid order of this Court, the PPT reconsidered the matter and again rejected the allotment made in favour of the petitioner by its resolution dated 1.5.2007 in Annexure-27 to the effect that “The proposal not to allot 39 Acres of land in favour of Deepak Fertilizers and Petrochemicals Corporation Limited is approved”. 4. Being aggrieved by the aforesaid resolution dated 1.5.2007, the petitioner moved this Court in W.P.(C) No. 6274 of 2007 and this Court by its judgment dated 14.9.2007 (Annexure-28) disposed of the writ application with a direction to the PPT to take a decision on the question of allotment of land to the petitioner in the light of the binding directions given by this Court in its order dated 13.12.2006. This Court also directed that the PPT shall take the decision after hearing the petitioner or its representative. 5. Pursuant to the aforesaid order of this Court, the petitioner was granted a personal hearing on 17.10.2007 during which, the petitioner represented by its legal representative put forth its case for allotment of land before the Trust Board. The Trust Board, after hearing the petitioner has passed the resolution dated 17.10.2007 not to allot the land in favour of the petitioner in the greater interest of Paradip Port, vide Annexure-30 and communicated the said decision to the petitioner by letter dated 2.11.2007 under Annexure-31. According to the petitioner, the opposite party has passed the resolution without confining its consideration to the grounds indicated in the order of this Court but on the ground i.e. the land is required for greater interest of the port, which, according to the petitioner has already been nullified by this Court in its judgment dated 14.9.2007. 6. The aforesaid Resolution under Annexure-30 and the communication under Annexure-31 are under challenge in the present writ application. 7. According to Ms. Soma Patnaik, learned counsel for the petitioner, initially on 9.3.2006 a notice inviting tender was issued by the opposite party-PPT for allotment of 2 39 acres of Port land for setting up Fertilizer, Chemicals and Ancillary Products Manufacturing Units; and the petitioner participated in the said tender and was ultimately selected. On 30.3.2006, the petitioner was informed that the Board decided to allot the land to the petitioner on lease basis for a period of 30 years for construction of Fertilizer, Chemicals and Ancillary Products Manufacturing Units and the petitioner was asked to deposit Rs.9,75,03,900/- towards premium and other charges, which according to the petitioner had also been deposited by the petitioner. Learned counsel for the petitioner further submitted that the question of pollution and environment hazard had also been dispelled by the subsequent letter of the Collector and his objection to allot the land in favour of the petitioner company was withdrawn and the Collector also endorsed no- objection to the allotment of land in favour of the petitioner vide Annexure-22. According to the learned counsel, the State Government in Commerce & Transport Department had also intimated the PPT that the State Government would not object to the leasing of the land in favour of the petitioner, vide Annexure-23. 8. Learned counsel for the petitioner, further submitted that the first point on which the opposite party harped was no more available to be raised in view of the letter of the Collector to the Commissioner-cum-Secretary to Government, Revenue & Disaster Management Department (Annexure-22). So, according to her, this ground did not survive and there was no reason as to why PPT did not re-consider its case for withdrawing the order of allotment. According to the petitioner, the order passed by this Court in W.P.(C) No. 11946 of 2006 was very clear for which the PPT had to re-consider the case of the petitioner and to take a fresh decision with regard to the allotment of the land after recalling the order of cancellation of allotment. Such decision had to be taken keeping in view the letters under Annexures-22 and 23 to the present writ application and the decision taken by the High Level Committee in its meeting held on 19.6.2006. These aspects have never been taken into consideration by the opposite party, though a specific direction had been given by this Court in its order dated 13.12.2006 while disposing of W.P.(C) No. 11946 of 2006. 9. As the PPT stuck to its earlier position and advanced another ground of future requirement, the same was challenged by the petitioner in W.P.(C) No.6274 of 2007. The said writ application was disposed of by the judgment dated 14.9.2007 with the following observations/ directions. “When a decision is taken by an authority contrary to an operative judgment of a Court, under which the authority is bound, the resultant decision apart from being contumacious is also a nullity in the eye of law. (See the decision in the case of Clarke v. Chadburn, reported in 1985 (1) All England Reports 211). The said decision of the English Court has been approved by the Supreme Court in the case of Delhi Development Authority v. Skipper Construction Company (P) Ltd., reported in AIR 1996 SC 2005 at page 18, page 2012 of the report. Following the aforesaid principles, this Court quashes the order dated 1.5.2007 which has been passed by the authorities of PPT. The writ petition, is therefore, allowed and the impugned order dated 1.5.2007 under Annexure-17 is quashed. 3 The PPT is further directed to take a decision on the question of allotment of land to the petitioner in the light of the binding directions given by this Court in its order dated 13.12.2006. Such decision should be taken by the PPT authorities after hearing the petitioner or its representative within a period two months from the date of service of this order upon the PPT authorities. This direction on the PPT to hear the petitioner is given for the reason that the relevant facts which were considered in Court’s order dated 13.12.2006 should be placed before the PPT authorities by the petitioner at the time of hearing which would be given to it by the PPT in terms of this order. The writ petition is, therefore, allowed to the extent indicated above. No order as to costs.” 10. In the impugned Resolution under Annexure-30, the Board expressed its concern that in view of the rapid growth in cargo handling and new projects being taken up, it would pose serious impediment to the Port expansion projects and hence the land should not be allotted to the petitioner. 11. On the aforesaid aspect, learned counsel for the petitioner submitted that the said aspect had also been raised in the earlier writ petition being W.P.(C) No. 6274 of 2007 and this Court in paragraph-15 of its judgment, while dealing with the same had observed that from a perusal of the decision of this Court dated 13.12.2006, it appears that this Court directed the PPT to take a fresh decision in the matter of allotment of land to the petitioner on the basis structured by the order of this Court to which PPT is a party and which had become final and binding on the PPT. In paragraph-16, this Court had observed that the impugned order had not been passed in consonance with the earlier direction of this Court dated 13.12.2006, rather the order had been passed, keeping in mind the future requirement of the PPT, which had been proposed by the Chairman. 12. According to the petitioner, the decision can only be taken keeping in view Annexures-15 and 16 to the earlier writ petition (Annexures-22 and 23 to the present writ application). But now in the present impugned resolution under Annexure-30 and 31, a new ground has been advanced, i.e. future requirement of land by the PPT. 13. In the counter affidavit filed by the PPT, a stand has been taken that after disposal of W.P.(C) No. 11946 of 2006 on 13.12.2006, the Board decided to seek legal opinion regarding the order dated 13.12.2006 and ultimately the Board decided not to allot the land in favour of the petitioner. 14. According to Mr. S.K. Padhi, learned Senior Advocate for the PPT, the aforesaid decision has been taken by the Board of Trustees, which is a statutory body, after taking all relevant factors into consideration and keeping in view the larger interest of the Port and hence, it cannot be said as arbitrary and illegal. It was further argued that the Court is to examine whether there is any infirmity in the decision making process and not in the decision and further in the case in hand, the petitioner had totally failed to indicate any infirmity in the decision making process. 4 15. Reliance was placed by the respective parties on a catena of decisions in support of their respective cases. 16. We have gone through the judgment of this Court dated 14.9.2007 passed in W.P.(C) No.6274 of 2007, copy of which has been annexed as Annexure-28, wherein similar questions raised before this Court have been dealt with and reached its finality. In this writ application, we have only to examine whether the impugned resolution and the impugned order have been passed in pursuance of the directions of this Court as have been given in the earlier two writ petitions. 17. In our considered opinion, despite the clear direction of this Court in its order dated 14.9.2007 passed in W.P.(C) No. 6274 of 2007, the PPT has not taken the decision in pursuance of such direction given by this Court in its order dated 13.12.2006 passed in W.P.(C) No. 11946 of 2006, i.e. to take a decision keeping in view the letter under Annexures-15 and 16 (Annexures-22 and 23 to the present writ application). For the foregoing reasons, we set aside the impugned Resolution dated 17.10.2007 in Annexure-30 as well as the consequential order dated 2.11.2007 in Annexure-31 and direct the opposite party-PPT to comply with the orders of this Court dated 13.12.2006 passed in W.P.(C) No. 11946 of 2006, so also the order dated 14.9.2007 passed in W.P.(C) No. 6274 of 2007 and take a fresh decision in terms of such decisions, which are final and binding on both the parties. The writ petition is accordingly allowed. No cost. Writ petition allowed. 5