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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
MANJULA CHELLUR, G.S. KULKARNI, JJ.
Chaucer Capital Limited through its Constituted Attorney Sitaram Teravankar - Petitioner
Versus
Maharashtra Maritime Board Indian Mercantile Chambers & Others - Respondents
Writ Petition No. 1051 of 2015
Decided On : 13-10-2017
Petitioner's petition challenging the grant of a captive jetty facility to Respondent No. 3 at Nandgaon, which is located near the proposed site of Petitioner's multipurpose port at Alewadi, is dismissed. The Court finds that: 1. Petitioner does not have a concluded contract or any vested right to develop the Alewadi port. 2. The captive jetty facility granted to Respondent No. 3 is not a multipurpose port and does not overlap with the proposed Alewadi port. 3. Petitioner has not been discriminated against as the captive jetty facility is governed by a different policy than the multipurpose port. 4. Petitioner has not been diligent in pursuing its claim and has caused delay and laches.
Fact of the Case:
Petitioner, a private equity fund, sought to develop an All Weather Multipurpose port at Alewadi. In 2011, Respondent No. 3, JSW Infrastructure Limited, was granted permission to develop a captive jetty facility at Nandgaon, which is located near the proposed site of Petitioner's port. Petitioner challenged this grant, alleging that it was discriminatory and that Respondent No. 3's captive jetty facility would overlap with its proposed port.
Finding of the Court:
The Court found that Petitioner did not have a concluded contract or any vested right to develop the Alewadi port. The Court also found that the captive jetty facility granted to Respondent No. 3 was not a multipurpose port and did not overlap with the proposed Alewadi port. Additionally, the Court found that Petitioner had not been discriminated against as the captive jetty facility was governed by a different policy than the multipurpose port. Finally, the Court found that Petitioner had not been diligent in pursuing its claim and had caused delay and laches.
Issues: 1. Whether Petitioner has a concluded contract or any vested right to develop the Alewadi port? 2. Whether the captive jetty facility granted to Respondent No. 3 is a multipurpose port and overlaps with the proposed Alewadi port? 3. Whether Petitioner has been discriminated against? 4. Whether Petitioner has been diligent in pursuing its claim?
Ratio Decidendi: 1. A concluded contract or vested right to develop a port requires a positive accord, consent, or approval from the relevant authorities. Petitioner did not have such an accord, consent, or approval. 2. A captive jetty facility is not a multipurpose port and does not overlap with a multipurpose port if it is located at a different site and is governed by a different policy. 3. Discrimination requires that the Petitioner be compared to another party who is successful in getting the proposal to set up a port. Petitioner cannot be compared to Respondent No. 3 because Respondent No. 3 is not seeking to develop a multipurpose port. 4. Diligence in pursuing a claim requires that the Petitioner take steps to advance its claim in a timely manner. Petitioner did not take such steps.
Final Decision: Petitioner's petition is dismissed.
Manjula Chellur, J.
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.
(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.
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 6th January 2007, petitioner expressed its interest to develop an All Weather 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 7th 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 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
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