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TMI Blog2013 (12) TMI 1748X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2012); Civil Appeal No. 11240 of 2013 (Arising out of Special Leave Petition (Civil) No. 27485 of 2012); Civil Appeal No. 11241 of 2013 (Arising out of Special Leave Petition (Civil) No. 27486 of 2012); Civil Appeal No. 11242 of 2013 (Arising out of Special Leave Petition (Civil) No. 27489 of 2012); Civil Appeal No. 11243 of 2013 (Arising out of Special Leave Petition (Civil) No. 27491 of 2012); Civil Appeal No. 11244 of 2013 (Arising out of Special Leave Petition (Civil) No. 27493 of 2012); Civil Appeal No. 11245 of 2013 (Arising out of Special Leave Petition (Civil) No. 27492 of 2012); Civil Appeal No. 11246 of 2013 (Arising out of Special Leave Petition (Civil) No. 27495 of 2012); Civil Appeal No. 11247 of 2013 (Arising out of Special Leave Petition (Civil) No. 27497 of 2012); Civil Appeal No. 11248 of 2013 (Arising out of Special Leave Petition (Civil) No. 27508 of 2012); Civil Appeal No. 11249 of 2013 (Arising out of Special Leave Petition (Civil) No. 27509 of 2012); Civil Appeal No. 11250 of 2013 (Arising out of Special Leave Petition (Civil) No. 27510 of 2012); Civil Appeal No. 11251 of 2013 (Arising out of Special Leave Petition (Civil) No. 27516 of 2012); Civil Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal No. 11280 of 2013 (Arising out of Special Leave Petition (Civil) No. 32005 of 2012); Civil Appeal No. 11281 of 2013 (Arising out of Special Leave Petition (Civil) No. 32001 of 2012); Civil Appeal No. 11282 of 2013 (Arising out of Special Leave Petition (Civil) No. 28 of 2013); Civil Appeal No. 11283 of 2013 (Arising out of Special Leave Petition (Civil) No. 36 of 2013); H.L. Gokhale And J. Chelameswar, JJ. For the Appellant : Mr. Kedar Nath Tripathy, Adv., M/s Khaitan & Co., Mr. L.R. Singh, Adv., Mr. Milind Kumar,Adv., Ms. Jyoti Mendiratta, Adv., Mr. Parmanand Gaur, Adv., Mr. Rakesh K. Sharma, Adv., Mr. Raj Kumar Mehta, Adv., Mr. Siddhartha Chowdhury, Adv., Mr. A. Venayagam Balan, Adv., Mr. Mukul Kumar, Adv., Mr. Vinodh Kanna B., Adv. For the Respondent : Ms. Sharmila Upadhyay, Adv., Mr. Mukul Kumar, Adv. JUDGMENT CHELAMESWAR, J. 1. Leave granted in all the SLPs. 2, All these SLPs arise out of an order of the Orissa High Court made in Miscellaneous Case No. 11005 of 2012 in Writ Petition (Civil) No. 11785 of 2012 on 2nd August, 2012. The said writ petition was filed by the appellant in the appeal arising out of Special Leave Petition (C) No. 38013 of 2012 i.e. M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by vessels; (b) entering upon or plying for hire at or on any wharf, quay, pier, dock, land, building, road, bridge or place as aforesaid by animals or vehicles carrying passengers or goods; (c) leasing of land or sheds by owners of goods imported or intended for export or by steamer agents; (d) any other use of any land, building, works, vessels or appliances belonging to or provided by the Board. (2) Different scales and conditions may be framed for different classes of goods and vessels. (3) Notwithstanding anything contained in sub- section (1), the Board may, by auction or by inviting tenders, lease any land or shed belonging to it or in its possession or occupation at a rate higher than that provided under sub- section (1)." 5. It is necessary to notice here that sub-Section (3) was inserted by Act 17 of 1982 with effect from 31.5.1982. For the present, it is sufficient to note that Section 49 also authorises the authority constituted under Section 47A to frame a "scale of rates" for using any property either belonging to or in the possession or occupation of the Board. The distinction between Sections 48 and 49 is that while Section 48 deals with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Board cancelled the licences of 48 manually operated iron ore storage plots and 11 mechanically operated storage plots. It appears from the additional affidavit filed by the Board on 25th November, 2013, of the 59 licences purported to have been cancelled by the Board, only 38 licences of the manually operated plots category and 7 of the mechanical category are before us. 12. It appears from the material on record[5] that there are three classes of plot holders who manually handle iron ore exports in the Paradeep Port; (i) 15 plot holders who were allotted plots prior to May, 2005, (ii) 52 plot holders who were allotted plots from June, 2005 to May, 2011 on the basis of auction; and (iii) 13 plot holders who acquired plots under the system of tendering process subsequent to June, 2011. 13. By notice dated 2nd June, 2011, the Paradeep Board invited applications from interested iron ore exporters, traders etc. for allotment of 20 manual iron ore plots of different sizes. Auroglobal was one of the parties who responded to the said tender notice and eventually became the successful bidder for one of the plots [plot no. I-5 (C group) admeasuring 5,500 sq. mtrs.] 14. By letter date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coming to the conclusion that the allotments made in favour of various appellants are in violation of the law declared by this Court in various decisions relied upon by the High Court in its order including Centre for Public Interest Litigation and others v. Union of India and others (2012) 3 SCC 1 [also known as 2G case]. Most of the appellants (details of which are available on record and not in dispute) came to be allotted with plots of land either pursuant to a process of auction or tender where each of the appellant had to pay substantial amounts to the Board for securing the allotment of the plots, apart from agreeing to pay the amounts stipulated by the scale of rates prescribed by the Tariff Authority. Therefore, the assumption of the High Court that the principles of law laid down by this Court in the various judgments referred to by the High Court starting from Dayaram Shetty to '2G case' is without any factual basis. The allotments made in favour of the appellants are in consonance with the law laid down in 2G's case. 21. It is also argued on behalf of the appellants that in the subsequent judgment of the Supreme Court in Natural Resources Allocation, In Re, Special Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, on this ground alone the order under appeal is required to be set aside. Lastly they submitted that the order is neither sought by Auroglobal, who was the petitioner before the High Court, nor is within the scope of the final relief sought by Auroglobal in the writ petition. 22. With regard to the limited number of plots allotted without following either the auction route or the tender route it is submitted that such allotments were made prior to 2005 at which point of time there was not much demand for allotment of plots by the Board, therefore, the allotments were on application basis. Hence, such allotments cannot be faulted. 23. Mr. Rohinton Nariman, learned senior counsel appearing for the Board argued that (i) none of the appellants have a 'right of renewal' as their possession is only a permissive possession (a licence) which does not create any interest in the property to enable them to claim a "right" of renewal. (ii) As on today the Board needs the entire area of land (occupied, by these various appellants by virtue of the allotment orders given in their favour earlier) for the purpose of developing the port for the creation of modern Deep Draught Coal and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... came out with a clear explanation that there was hardly any competition at that point of time for the allotment of plots. Therefore, we do not see any reason to find any fault with such allotment on the ground that the allotment was made without following the procedure of auction or tender. More particularly, in the absence of any dispute regarding the correctness of the assertion of the Board that there was hardly any demand at that point of time for allotment of plots. 28. The opinion of the High Court - that a renewal of the licence in dispute without following the procedure of auction is inconsistent with the principles laid down in the 2G case - as an absolute proposition of law could be examined in appropriate case. Such a scrutiny is not required for the present as the Board does not propose to renew the licences. 29. However, it is the submission of the Board that this Court need not examine the legality of the order under appeal for two reasons - (1) none of the appellants have either any indefeasible right of renewal or to continue the use of the respective plots allotted to them and the Board is entitled in law to revoke the licences at any time and debar the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces issued by the respondent Board are founded. Therefore, this Court may not embark upon an examination of those questions as a Court of 1st instance. According to the appellants, such an examination would take the appellants by surprise. Without prejudice to the preliminary objection, the learned counsel for the appellants also argued that they have a right of renewal of the licences and/or to continue in possession of the land in dispute. 34. In response to the preliminary objection, it is argued on behalf of the Board that this Court in exercise of its jurisdiction under Article 142 can undertake such an examination in an appropriate case to render complete justice in these batch of matters. Shri Nariman relied upon Pasupuleti Venkateswarlu Vs. The Motor & General Traders [(1975) 1 SCC 770][11]a and Rameshwar and Others Vs. Jot Ram and Another etc. [(1976) 1 SCC 194]1b, in support of this submission. 35. We reject the preliminary objection for the following reason:- The jurisdiction under Article 136 is discretionary. It is settled by catena of decisions of this Court that the jurisdiction under Article 136 is purely discretionary only to be exercised in order to ensure that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d seeks to debar the appellants from using the land in dispute. Such a decision of the Board rested on the order of the High Court under challenge. But during the pendency of the present proceedings the Board altered the basis of its decision and decided to rest on the need of (i) the land in the dispute (covered by the manually operated plots) for providing better facilities and (ii) mechanically operated plots for securing better/higher revenue. The legality of such proposed action of the Board would depend on (a) the true character of the legal relationship between the appellants and the Board; (b) whether such relationship confers a right on the appellants to continue use of the disputed property either for eternity or for a definite period; (c) the legal authority of the Board to terminate such relationship; and (d) the procedure required to be followed for such termination. 39. To answer the above question we examine the nature of the legal rights flowing from such allotments. The plots in dispute are property vested in a public body (statutory corporation) performing important public functions. In the matter of creating rights and/or conferring privileges such a body is req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur of the transferee depending upon the nature of the transfer (sale, mortgage or lease etc.). Under Section 60[16], a licence is revocable at the will of the grantor which is the essence of a licence.[17] The Easements Act categorically declares that a licence can be revoked by the grantor except in the two contingencies specified under Section 60(a) & (b). No such exceptions are pleaded or demonstrated by the appellants. Therefore, it must be held that none of the appellants have any indefeasible right of renewal either under the Easements Act or under the above mentioned policy. 43. However, that does not mean that a public body like the respondent Board can arbitrarily decline to renew a licence. It is well settled by a catena of decisions of this Court that no public body under our Constitutional system is vested with such arbitrary powers, as was pointed out by this Court in R.D. Shetty Vs. Airport Authorities, (1979) 3 SCC 489[18]. If the Board decides not to renew any licence either with respect to a class of licences or with reference to a specific area of the land, normally such a decision cannot be said to be either irrational or arbitrary unless there are other compell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... censor can always terminate/revoke the licences. In view of our conclusion that the proposed revocation of licences would not amount to an irrational or arbitrary decision, rejecting the new plea of the Board or any ground would only lead to protracted litigation consuming considerable time and delay in execution of the project, by the Board. Such a delay would not subserve public interest. This Court shall not contribute to such delay on the ground of some perceived procedural irregularity, particularly when the appellants have no substantive right. The appellants were given a wholesome opportunity by this Court to establish their legal right, to prevent the Board from terminating their licences. 48. Civil Appeal arising out of SLP(C) No.38013 of 2012 is filed by Auroglobal Comtrade Pvt. Ltd, which was the petitioner in W.P. (C) No.11785/2012 in the High Court of Orissa. The appellant was allotted a plot by the Board pursuant to a process of tender in which the appellant became the successful bidder quoting an amount of Rs.3,06,29,759/-. A licence for the use of the plot for 11 months was granted by the respondent Board under a letter dated 1st August, 2011, after collecting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onding obligation (approbate and reprobate). Secondly, the claim of the appellant that they are being discriminated against is required to be rejected since those licencees who are paying a lower 'licence fee' had secured these licenses at a point of time when there was no competition. The market conditions were different. Things or events seemingly similar and at par need not always be so. There can be facets which distinguish. The present situation is one of them. 52. One of the grounds pleaded in the appeal and argued before us by Shri C.A. Sundaram, learned senior counsel appearing for the appellant that- ".......... there is distinction between lease and license and both are dealt with separately. License comes under Section 49(1)(d) i.e. any other use. Section 49(3) of the Major Port Trust Act says that the board may lease any land at a rate higher than that provided under Section 49(1). Thus, only in respect of lease the port trust can change a rate higher than the scale of rates approved by TAMP. Clause 6.1.1(a) of the Land Policy 2010 clearly states that license can be granted by inviting tender but renewal will have to be under the scale of rates approved by TAMP. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in view of a specific statement made at the bar on behalf of the Board that the Board does not propose to terminate the licence of the appellant as the plot of land allotted to the appellant is not required for the purpose of its proposed developmental project. Accordingly, this appeal stands disposed of. 57. Coming to the 7 mechanically operated iron ore plots, they were allotted on different dates the details of which are as follows: S. No. Plot Holder & SLP No. Bagadiya Brothers Initial Allotment |Renewals 1. Bagadiya Brothers SLP No. 28842/2012 (Manual Iron Ore plot holder) 01.08.2011 Last renewal upto 28.02.2013 2. Rungta Mines Ltd. SLP No.27512/2012 04.06.2011 and 25.07.2005 Last renewed on 01.04.2012 upto 28.02.2013 3. M/s Core Minerals SLP No.27511/2012 2001 and 2004 Last renewal granted in July 2012 upto 30.09.2012 4. Essel Mining and Industries Ltd. SLP No.27516/2012 Allotment by various allotment orders from June 2001 to July 2005 13.02.2012 Last renewal upto 30.09.2012 5. JSW Ispat Steel Ltd. SLP No. 26922/2012 13.02.2012 Last renewed upto 30.09.2012 6. Orissa Mining Corporation Ltd. SLP No.28841/2012 16.05.1996, 04.04.1997, 20. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in this judgment that we propose to deal with these petitions as if they were petitions under Article 32 and permitted the appellants to place all the material which would be available to them in law in defence even if the impugned termination orders were not to be based on the decision of the High Court. 60. Except arguing that the decision of the Orissa High Court is in violation of principles of natural justice, the appellants failed to place before this Court any material to establish that the decision of the Board to terminate their licences is otherwise violative of any of the substantive right. In the circumstances, we decline to interfere with the decision of the Board. All the appeals are, accordingly, dismissed. [1] 3(8) "major port" means any port which the Central Government may by notification in the Official Gazette declare, or may under any law for the time being in force have declared, to be a major port. [2] Section 2(r) of Major Port Trusts Act, 1963 - 2(r) " port approaches", in relation to a port, means those parts of the navigable rivers and channels leading to the port, in which the Indian Ports Act is in force; [3] 47A. Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is relevant to state that during the initial period, the iron ore plots were allotted on payment of normal licence fees as per Port Scale of Rates (SOR). Due to surge in demand for iron ore in the international market, demands for the plots also increased in Paradeep Port. Accordingly Paradeep Port Trust vide resolution no. 31/2005-06 dated 28.05.2005 decided to introduce auction for allotment of manual iron ore plots for export of iron ore. Subsequently since there were lot of interested parties, Paradeep Port Trust decided to introduce the system of allotment of plots through tender w.e.f. June-July 2011. In all the cases the respective plot holders are required to pay licence fees as per the Scale of Rate (SOR) i.e. Rs. 9/- per sq. mtr per month, whereas the plot holders in the second category as mentioned above, the allotees are required to pay one time premium amount over and above the licence fees and for the third category, the tender value is required to be paid every eleven month towards licence fees apart from the licence fees as per the Scale of Rate (SOR) i.e. Rs. 9/- per sqmtr per month subject to fulfillment of other conditions. A statement containing the details of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct revenue to its property for having granted licensing right in favour of the eligible persons. It is brought to the notice of this Court that largesse are conferred on the basis of the policy of TAMP without auctioning the property of the Port Trust by granting licence by way of renewal which is contrary to the law laid down by the apex Court in the aforesaid cases. That apart in a substantial number of cases interim orders passed by this Court where the licence period is expired long back and the licencees are continuing in the Port Trust property, is the submission of Mr. S.K. Padhi, Learned senior counsel which shocks the conscience of this Court. For implementation of our direction, Mr. Padhi learned senior counsel appearing for the opposite parties seeks three weeks time. The same is granted. The amount that may be collected on the basis of the condition of the tender call notice, as mentioned above, will be subject to the final decision that may be rendered by this Court in these cases. Public auction price may be given the Port to collect the rates fixed by the TAMP. List this matter along with W.P.(C) Nos. 10339, 12295, 12296, 11783 in three weeks Urgent certified copy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to retain the plot in question for its own use and purpose i.e. for construction of Iron Ore Berth and Coal Berth respectively, the port trust had entered into an Concession Agreement dated 01.07.2009 with respect to Iron Berth and dated 10.11.2009 with respect to Coal Berth, with M/s. Blue Water Iron Ore Terminal Private Limited and with Essar Paradeep Terminal Limited respectively on BOT basis. The Paradeep Port Trust was awaiting the clearance from the Ministry of Environment and Forest (MOEF), which was granted on 02.07.2012 a copy of MOEF clearance dated 02.07.2012 is annexed herewith and marked as Annexure-A/4 which runs from page 15 to page 18. The Paradeep Port Trust was accordingly to take over the plots and handover the possession to the above two BOT operators, when the present order dated 31.08.2012 was passed directing the parties to maintain status quo.". [11] a Rameshwar and Others Vs. Jot Ram and Another etc. [(1976) 1 SCC 194] - para (7) The realism of our processual justice bends our jurisprudence to mould, negate or regulate reliefs in the light of exceptional developments having a material and equitable import, occurring during the pendency of the litigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed.. [12] 12a In some cases the courts have refused applications for mandamus to restore to office persons who have been irregularly removed, on the ground that the remedy might be of no use to the applicant, because it would still be open to the competent authority to remove him by the proper procedure. There are also decisions in licensing cases to like effect (de Smith's Judicial Review of Administrative Action, Fourth Edition Pg. 561.) 12b. Seervai H.M., Constitutional Law of India [Bombay: N.M. Tripathi Pvt. Ltd., 3rd Edn. Vol.2 (1984) para 16.279 page 1367] [13] Normally, land inside custom bound area shall be given on licence basis only. The licence may be granted by the Chairman. It may be granted up to a maximum period of 11 months and shall normally be in accordance with the Scale of Rates (SoR)/ rates approved by the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estate or interest in the property. There is, therefore, clear distinction between the two concepts. The dividing line is clear though sometimes it becomes very thin or even blurred......... [16] "60. Licence when revocable - A licence may be revoked by the grantor, unless - (a) it is coupled with a transfer of property and such transfer is in force; (b) the licencee, acting upon the lilcense, has executed a work of a permanent character and incurred expenses in the execution." [17] Mrs. M.N. Clubwala and another vs. Fida Hussain Saheb and others [AIR 1965 SC 610] - (12) While it is true that the essence of a licence is that it is revocable at the will of the grantor the provision in the licence that the licencee would be entitled to a notice before being required to vacate is not inconsistent with a licence. [In England it has been held that a contractual licence may be revocable or irrevocable according to the express or implied terms of the contract between the parties. It has further been held that if the licencee under a revocable licence has brought property on to the land, he is entitled to notice of revocation and to a reasonable time for removing his prope ..... X X X X Extracts X X X X X X X X Extracts X X X X
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