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2017 Supreme(Guj) 838

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R. Subhash Reddy, V.M. Pancholi, JJ.
Essar Bulk Terminal Limited and Ors. - Appellants
Vs.
State of Gujarat and Ors. - Respondents
Special Civil Application No. 8356 of 2016 and Civil Application No. 5491 of 2016 in Special Civil Application No. 8356 of 2016
Decided On : 25-04-2017

Advocates Appeared:
For the Appellant : Mihir Joshi, Keyur Gandhi, Payal Parikh for Nanavati Associates
For the Respondents: Kamal Trivedi, Sangeeta Vishen

Headnote:

Constitution of India -Article 226 -Indian Ports Act, 1908 -Your Lordships may be pleased to issue writ of mandamus, order or direction or a writ in the nature of mandamus any other writ, order or direction quashing and setting aside Resolution No. 3157 passed by the Gujarat Maritime Board recommending in-principle approval to the DPR of AHPPL for outer harbor development in the area being reclaimed by the Petitioner. Pending the hearing and final disposal of the petition, Your Lordships may be pleased to stay the operation of the Resolution No. 3157 passed by the Gujarat Maritime Board in its Board Meeting and restrain the Respondents herein from undertaking any further action for giving effect to the said Resolution. Your Lordships may be pleased to direct the Respondent State Authorities grant necessary approvals in relation to the applications made by the Petitioner for allotment of 3700 mts waterfront and land admeasuring 567 Hectares (233 Ha + 334 Ha) reclaimed and sought to be reclaimed by the Petitioners as well as the application made by the Petitioner for allotment of land and waterfront LNG facilities;(sic) Pending the hearing and final disposal of the petition, Your Lordships may be pleased to stay the operation and implementation of the impugned notification and any actions pursuant thereto. Pending the hearing and final disposal of the petition, Your Lordships may be pleased to restrain the Respondents herein from giving effect to any resolutions passed in any forthcoming Board meeting of the GMB approving any extension of activities/facilities by Respondent Nos. 3 and 4 in the area being reclaimed by the Petitioner. By the impugned Notification, issued by the 1st respondent-Government of Gujarat, in exercise of power under section 5 of the Indian Ports Act, 1908 Government of Gujarat has altered the existing limits of Hazira Port. By Resolution No. 3157, issued by the 2nd respondent-Gujarat Maritime Board, which is the subject-matter of challenge in this petition, the 2nd respondent-Gujarat Maritime Board has recommended the proposal of the 4th respondent to the 1st respondent, approving in-principle, approval to the master plan of the 4th respondent for Outer Harbor Development. The said Resolution No. 3157, , passed by the 2nd respondent -Held We have considered the documents produced along with Civil Application No. 11501 of 2016 which was allowed vide order. However, having regard to various findings recorded by us on various issues as referred hereinabove in this judgment and as the Notification was issued in statutory exercise of power under section 5(1) of the Indian Ports Act, 1908, we are of the view that the approvals granted and placed on record vide Civil Application No. 11501 of 2016 will not have any effect on the impugned Notification.In view of the aforesaid reasons, by taking the holistic view of the matter and considering the impugned proceedings which are issued in exercise of statutory power under the Indian Ports Act, 1908, as we find the same is in conformity with the Port Policy and the BOOT Policy notified by the Government and in absence of establishing any legal right by the petitioners, there is no merit in the petition to invalidate the impugned Notification by judicial review in this petition filed under Article 226 of the Constitution of India. For the aforesaid reasons, this petition is devoid of merit and the same is accordingly dismissed. Notice is discharged. There shall be no order as to costs.Since the main petition is dismissed, the connected Civil Application No. 5491 of 2016 for direction to the respondents to produce the documents as stated in the said application, does not survive and the same is disposed of -Petition is Dismissed.

JUDGMENT :

R. Subhash Reddy, J.

1. This Special Civil Application is filed by the petitioners under Article 226 of the Constitution of India, seeking the prayers which read as under:

"(A) Your Lordships may be pleased to issue writ of mandamus, order or direction or a writ in the nature of mandamus any other writ, order, or direction quashing and setting aside the impugned notification dated 18.01.2016 and any actions pursuant thereto;(sic)

(A)(1) Your Lordships may be pleased to issue writ of mandamus, order or direction or a writ in the nature of mandamus any other writ, order or direction quashing and setting aside Resolution No. 3157 dated 31.05.2016 passed by the Gujarat Maritime Board recommending in-principle approval to the DPR of AHPPL for outer harbor development in the area being reclaimed by the Petitioner.

(A)(2) Pending the hearing and final disposal of the petition, Your Lordships may be pleased to stay the operation of the Resolution No. 3157 passed by the Gujarat Maritime Board in its Board Meeting dated 31.05.2016 and restrain the Respondents herein from undertaking any further action for giving effect to the said Resolution.

(B) Your Lordships may be pleased to direct the Respondent State Authorities grant necessary approvals in relation to the applications made by the Petitioner for allotment of 3700 mts waterfront and land admeasuring 567 Hectares (233 Ha + 334 Ha) reclaimed and sought to be reclaimed by the Petitioners as well as the application made by the Petitioner for allotment of land and waterfront LNG facilities;(sic)

(B) Pending the hearing and final disposal of the petition, Your Lordships may be pleased to stay the operation and implementation of the impugned notification dated 18.01.2016 and any actions pursuant thereto.

(C) Pending the hearing and final disposal of the petition, Your Lordships may be pleased to restrain the Respondents herein from giving effect to any resolutions passed in any forthcoming Board meeting of the GMB approving any extension of activities/facilities by Respondent Nos. 3 and 4 in the area being reclaimed by the Petitioner;

(D) Ex-parte ad-interim relief in relation to prayers (B) and (C) above.

(E) Grant such other and further relief(s) as may be deemed fit in the interest of justice."

2. By the impugned Notification dated 18th January 2016, issued by the 1st respondent-Government of Gujarat, in exercise of power under section 5 of the Indian Ports Act, 1908 ("the Act" for short), the Government of Gujarat has altered the existing limits of Hazira Port. By Resolution No. 3157 dated 31.5.2016, issued by the 2nd respondent-Gujarat Maritime Board, which is the subject-matter of challenge in this petition, the 2nd respondent-Gujarat Maritime Board has recommended the proposal of the 4th respondent to the 1st respondent, approving in-principle, approval to the master plan of the 4th respondent for Outer Harbor Development. The said Resolution No. 3157, dated 31.5.2016, passed by the 2nd respondent reads as under:-

"Resolution No. 3157

Resolved to recommend the proposal of AHPPL to GOG to grant an in-Principle approval to the Master Plan of AHPPL for outer harbour development subject to the outcome of the petition filed by EBTL in Gujarat High Court and compliance of the following conditions:

i. The in-Principle approval is subject to final approval of the DPR to be submitted covering required studies and investigations. AHPPL shall approach GMB for the final approval of the DPR for the Outer Harbor Development at Hazira Port.

ii. AHPPL shall have to obtain all necessary statutory clearances including Environment and CRZ from the concerned Government Authorities as may be required and submit to GMB.

iii. AHPPL shall obtain other approval viz. NSPC, ISPS etc as may be required.

iv. AHPPL shall submit copies of all detailed designs and engineering drawings to GMB.

v. AHPPL shall have to seek consent to construct under Section 35(1) of the GMB Act prior to undertaking any development work for




















































































































































































































































































































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