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SCA/1045/2010 3/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1045 of 2010
=========================================================
L
H MEHTA & 3 - Petitioner(s)
Versus
KANDLA
PORT TRUST & 2 - Respondent(s)
=========================================================
Appearance
:
MR
NV ANJARIA for
Petitioner(s) : 1 - 4.
MR DHAVAL D VYAS for Respondent(s) :
1,
NOTICE SERVED BY DS for Respondent(s) : 2 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 17/09/2010
ORAL
ORDER
Heard
learned advocate Mr. NV Anjaria on behalf of petitioner, learned
senior advocate Mr. KM Patel with learned advocate Mr. DD Vyas on
behalf of respondent.
In
this matter, notice has been issued by this Court on 4/2/2010 made
it returnable on 19/2/2010. Meanwhile, ad interim relief in terms
of para 10(I) granted on condition that if petitioner eventually
failed in this petition, they shall make necessary payments.
I
have considered averment made in this petition and also considered
challenged made by present petitioner in present petition. The
petitioner no. 2 is Gandhidham Property Dealers Association through
its President LH Mehta who is petitioner no. 1. The respondent is
Kandla Port Trust and his officer as well as Tariff Authority for
Major Ports an authority created under Major Port Trusts Act,
1963. The relevant averment made in petition in para 1/1 to 1/4 are
quoted as under:
1.1 Petitioner
No. 1 LH Mehta is resident of Gandhidham and he is the lessee owner
of leasehold rights of residential plot No. 111, Sector 2 in the
township of Gandhidham. He is a social worker and President of
petitioner No. 2 Association. He is before this Honourable Court in
his individual capacity as well as in the capacity of President.
1.2 Petitioner
no. 2 Gandhidham Property Dealers Association is an association
formed with an object to provide a platform to the grievances of
inhabitants of the town relating to property matters and the
association collectively works to solve property related grievances
of the individuals by representing before the authorities like
Kandla Port Trust, Sindhu Resettlement Corporation, Gandhidham
Municipality, Gandhidham Development Authority or other concerned
authority, government or semi government. The role of petitioner
no. 3 Association as a helping hand to the inhabitants of the town
of Gandhidham is important in as much as the whole town of
Gandhidham and surrounding area comprise of plots of land, as
elaborated hereinafter, which was developed originally with a view
to boost the coming up of the port of Kandla after independence.
1.3 Petitioner
No. 3 is the lessee owner of leasehold rights of Plot No. A-119 from
Kandla Port Trust, in the area known as Bhaipratapnagar, situated at
Gandhidham. He occupies the plot having purchased from Smt.
Devishanker Bachwani by registered deed dated 25/1/2006. Petitioner
no. 4 is a member of Gandhidham Chamber of Commerce and Industries,
Gandhidham and is actively associated with various social and
Gandhidham Township activities. He is a lessee owner of leasehold
rights of plot at Adipur Kachchh and his locus standi as well as the
status of plot held by him bear a similar nexus with the plot in the
Gandhidham Township.
1.4 All the
petitioners are in their locus standi similarly aggrieved by the
effect and consequence of the decision impugned in the petition and
the nature of challenge, which are stated in paragraph 3
hereinafter. The issue raised in the petition is with regard to the
legality of Transfer Fee levied by the respondents and validity of
exercise of powers for the same under Major Port Trusts Act, 1963.
The issue and the subject matter affects the entire populace of the
plot holders in the Gandhidham Township and all the residents and
inhabitants in the Township are affected persons. The petitioners
herein therefore, bring their grievances before this Honourable
Court not only in their own capacity as aggrieved persons, but also
respectfully submit that the present petition may be treated in
representation capacity under Order 1 Rule 8 of Code of Civil
Procedure, 1908 and/or the principles analogous thereto.
As
against that affidavit in reply is filed by respondent no. 1 at page
192, which has been corrected and amended copy placed on record by
respondent no. 1, which is at page 210. The relevant para 3 and 4
are quoted as under:
3. It is
respectfully submitted that, petition in the natures as filed, is
not maintainable. It is submitted that, considering the nature of
relief’s prayed by the petitioner, it would essentially be a public
interest litigation, which is for some oblique reason not filed so.
It is submitted that the writ petitions are not maintainable to be
filed in the representative capacity that too on invocation of Order
1 Rule 8 of the Code of Civil Procedure, 1908.
4. It is
submitted that the nature of relief prayed for is essentially within
the contractual domain. It is submitted that the prayers are
essentially challenging the contractual terms, of lease deed and,
therefore, it would be for the petitioner, if within a right, to
file an appropriate proceedings in accordance with law. I say that,
in the circumstances the writ petition involving extra ordinary
prerogative and discretionary jurisdiction of this Honourable Court,
would not be maintainable for such a challenge.
The
affidavit in rejoinder filed by petitioner against affidavit in
reply of respondent no. 1 is at page 205. The averment made by both
parties and challenged of petitioner is at page 43 to 48, which are
quoted as under:
The present
petition seeks to place before this Hon’ble Court threefold
challenges as under:
(i) The
petitioners challenge the very rationale, legality and validity of,
and the authority in law of the respondents in levying Transfer Fee
in the nature of Development Charges at every instance of inter-se
transfer of plot between private persons.
(ii) Petitioners
challenge the Resolution by the Board of Trustees of Kandla Port
Trust dated 07/07/2009 and the consequential circular dated
29/10/2009 whereby the Transfer Fee in respect of transfer and sale
of leasehold rights of a particular plot is sought to be levied
retrospectively with effect from 01/01/2004, thereby demanding the
payment of Transfer Fee also in respect of those transactions of
transfer/sale already completed in all respects in past.
(iii) It is the
further challenge without prejudice and in the alternative to (i)
and (ii) above that even if the respondents are presumed for the
sake of arguments to have powers to charge Transfer Fee in respect
of the transactions of transfers of plots, the basis and the
criteria adopted for determining the Transfer Fee is artificial,
unrealistic, arbitrary and very antithetic to the underlying purpose
of levy of Transfer Fee.
*The
petitioners’ challenge are on the grounds broadly stated as under:
(a) The
respondent Kandla Port Trust is only an agent and manager on behalf
of the Government of India in respect of leasing out of the subject
matter lands. Therefore, respondents are not entitled in law for
levy of Transfer Fee. Even Kandla Port Trust’s authority to act as
an agent is not being established in law.
(b) Even if it
is assumed that, respondent Kandla Port Trust has such authority on
behalf of Govt. of India, the lands are claimed to have been vested
under the provisions of Major Port Trust Act, 1963. The powers under
the Act and more particularly sections 47 to 50 of the Act can be
used for the purposes of the Port and port related activity so as to
entitle the Kandla Port Trust to levy Port tariffs and charges and
not otherwise.
(c) Therefore,
neither Respondent no. 3 Tariff Authority of India can not be said
to be validly drawing powers to approve Transfer Fee to be leviable
by Kandla Port Trust in the plots within the Gandhidham Township and
purported exercise such powers from Sections 47 to 50 or any other
provision of the Major Port Trusts Act, 1963, tantamount to
colorable exercise of powers.
(d) The
Development Charges having been already levied in the first
instance, the Transfer Fee based upon the Development Charges can
not be justified in as much as after initial leasing the plot, the
KPT does not play any role and does not in any way contribute to the
development of the plot. The charging of Transfer Fee in connection
with every subsequent transfer is irrational. It amounts to
profiteering. It is also de hors the powers on law.
(e) The Transfer
Fee in its nature of levy becomes fee without quid pro quo. In the
facts and circumstances, it is like a compulsory exaction, a kind of
tax without authority in law.
(f) The levy of
Transfer Fee is unreasonable fetter on disposition. It is in
contravention of provisions of the Transfer of Proper Act, 1882.
The same is also violative of Article 300 A read with Article 14 of
the Constitution of India.
(g) The
retrospective levy of Transfer Fee from 01/01/2004 contemplated in
the circular at Annexure A is not permissible in law. Further, in
any case, can not be justified in law by any yardstick in its
criteria of levy as well.
In
light of aforesaid pleadings between parties and considering
challenged made by petitioner, according to my opinion, this matter
may be considered as Public Interest Litigation. Therefore,
Registry is directed to place this matter before Hon’ble Chief
Justice of Gujarat High Court for necessary order. Meanwhile, ad
interim relief granted by this Court shall remain continue till next
date of hearing.
(H.K.RATHOD,
J)
asma
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