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MCA/1513/2010 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION - FOR REVIEW No. 1513 of 2010
In
MISC.CIVIL
APPLICATION No. 527 of 2010
In
SPECIAL
CIVIL APPLICATION No. 1674 of 2009
=========================================================
N
B M IRON & STEEL TRADING PVTLTD - Applicant(s)
Versus
GUJARAT
MARITIME BOARD & 2 - Opponent(s)
=========================================================
Appearance :
MR
BHARAT T RAO for
Applicant(s) : 1,
MR PR NANAVATI for Opponent(s) : 1,
None for
Opponent(s) : 2,
MR KP RAVAL AGP for Opponent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 21/07/2010
ORAL
ORDER
1. By
way of this application, the applicant has prayed to recall the order
dated 22.03.2010 passed in Misc. Civil Application No.527/2010 and to
restore the same on file.
2. Before
this Court looks into the relief claimed by the applicant, it would
be pertinent to refer to the observations made by this Court in
Para-5 of the order dated 26.02.2009 passed in the captioned
petition, which reads as under;
5. Having heard learned
advocates appearing for the parties for the purpose of considering
ad-interim relief, the Court is of the view that the order is passed
by the Court on 05.02.2009. 15 days time is granted to the Gujarat
Maritime Board to effect the transfer in favour of the petitioner.
The said period is over. Yet, nothing has happened in the matter.
There is no stay against the order passed by this Court till this
date. In the above view of the matter, Gujarat Maritime Board cannot
refuse the transfer in favour of the petitioner nor it can refuse
beaching permission to the petitioner. In any case, the policy of
the Gujarat Maritime Board as contained in the notification dated
30.09.2006 says that if the permission holder allows to beach the
vessel not belonging to him for breaking without the prior
permission of the Gujarat Maritime Board on the plot for which
permission is given to him, the permission to utilise the plot for
breaking the vessel shall be liable to be cancelled. However, the
Gujarat Maritime Board may grant permission to beach such vessel as
its own discretion, subject to condition that there is no
outstanding of any dues by the permission holder as well as
the vessel owner to the Board in respect of the plot on which vessel
is to be beached and the party to whom vessel belongs. The fees
to be charged for permission to beach the vessel in such case shall
be Rs.10 Lacs.
3. Pursuant to the passing
of the above order, the opponent-Board filed M.C.A. No. 527/2010
praying to remit the said amount of Rs.10,00,000/- deposited by the
applicant mainly on the ground that by way of order dated 26.02.2009
(as referred to herein above) provisional beaching permission was
granted to the applicant subject to the condition that the applicant
deposits an amount of Rs.10,00,000/- with the Registry of this Court
and that the said order has merged with the main challenge in L.P.A.
Nos.205/2009 & 217/2009.
4. In the meanwhile, the
opponent-Board had L.P.A. No.205/2009 challenging the order passed in
S.C.A. No.11766/2008 dated 05.02.2009, whereby, the opponent-Board
had been directed to transfer the plot in question in favour of the
applicant herein. The opponent-Board had also challenged the order
dated 26.02.2009 passed in the captioned petition by way of filing
L.P.A. No. 217/2009. Both the appeals came to be disposed of vide
order dated 02.11.2009, which reads as under;
Heard learned counsel
for either side.
When the matter came for
hearing earlier, we have suggested that considering the peculiar
facts and circumstances of the case, it will be appropriate that
Gujarat Maritime Board may consider the request of the 1st
Respondent-Western Shipbreaking Corporation in Letters Patent Appeal
No. 205 of 2009 to transfer the permission to utilize the
Shipbreaking Plot No.61 in favour of M/s. N.B.M. Iron and Steel
Trading Private Limited. Such a suggestion was made as it was pointed
out that M/s. N.B.M. Iron and Steel Trading Private Limited had
discharged huge liabilities of the 1st Respondent-Western
Shipbreaking Corporation and also settled the liabilities of the 1st
Respondent-Western Shipbreaking Corporation with Bank of Baroda as
well. Considering these facts, it will be in the interest of
justice that the request of 1st Respondent to transfer the
Shipbreaking Plot No.61 in favour of M/s. N.B.M. Iron and Steel
Trading Private Limited be considered.
Mr. Kamal Trivedi, learned
Senior Advocate appearing for the Gujarat Maritime Board, has
submitted that they will consider the request made by the 1st
Respondent-Western Shipbreaking Corporation favourably, provided the
transferor and the transferee comply with all relevant Rules and
Regulations of the Board, and this cannot be treated as a precedent,
since the Board has to urge various legal contentions. Therefore, in
the peculiar facts and circumstances of the case, all the legal
contentions raised by the learned counsel of either side be kept
open.
Considering the assurance
given by the Gujarat Maritime Board, learned counsel appearing for
the petitioner- M/s. N.B.M. Iron and Steel Trading Private Limited in
S.C.A. No. 1674 of 2009 submitted that he would withdraw the
petition. Accordingly, Special Civil Application No. 1674 of 2009
stands disposed of as withdrawn.
Under the
circumstances, judgment of the learned Single Judge rendered in
S.C.A. No. 11766 of 2008 is set aside with a direction to the Gujarat
Maritime Board to consider the request made by the 1 st
Respondent-Western Shipbreaking Corporation to transfer the
permission to utilize Shipbreaking Plot No.61 in favour of M/s.
N.B.M. Iron and Steel Trading Private Limited, provided they comply
with all relevant Rules and Regulations
of the Board.
Letters Patent Appeals and
Civil Applications stand disposed of accordingly.
5. The main contention
raised on behalf of the applicant is that this Court had no
jurisdiction to entertain the captioned Misc. Civil Application filed
by the opponent-Board in view of the order passed by the Division
Bench on 02.11.2009, as reproduced herein above and that for seeking
beaching permission, the opponent-Board was not justified in charging
Rs.10,00,000/- from the applicant.
6. However, this Court is
not impressed by the said contentions raised by the applicant
inasmuch as the said amount of Rs.10,00,000/- deposited by the
applicant was for the purpose of seeking permission from the
opponent-Board for beaching. In the order dated 26.02.2009, it has
been stated in no uncertain terms that the
fees to be charged for permission to beach vessel shall be
Rs.10,00,000/- since, evidently, the applicant was not a permission
holder at the relevant time. Therefore, the said amount of
Rs.10,00,000/- paid by the applicant was the fees for beaching
permission and was not the amount deposited by the applicant for the
purpose of showing its bona fide, as has been contented by the
applicant. Apart from that in the order dated 02.11.2009, the
Division Bench has set aside only the judgment rendered in S.C.A.
No.11766/2008 and has issued direction to the opponent-Board to
consider the request of transfer of the plot in question in favour of
the applicant. The direction qua charging Rs.10,00,000/- as fees for
beaching permission has not been disturbed by the Division Bench and
has merged with the final order dated 02.11.2009. However, an attempt
has been made by the applicant to show that the opponent-Board is not
having any authority to charge any fees from a party concerned, for
granting beaching permission, by drawing attention of the Court to
the relevant Regulations of the opponent-Board. Since the said issue
is not a subject matter in the present proceedings, I do not want to
make any observations on it.
7. In view of the above
factual scenario, it is not open to the applicant to seek withdrawal
of the said amount, particularly when, the applicant has taken
benefit of beaching permission granted to it in pursuance of the
order dated 26.02.2009. Hence, the application deserves to be
rejected.
8. For the foregoing
reasons, the application is dismissed. No costs.
[K.
S. JHAVERI, J.]
Pravin/*
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