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2003 DIGILAW 41 (GUJ)

GUJARAT MARITIME BOARD v. S. S. JAIN and COMPANY

2003-01-28

J.N.BHATT, K.A.PUJ

body2003
J. N. BHATT, J. ( 1 ) IN this group of Letters Patent Apepals, by invocation of Clause 15 of the Letters Patent, common questions arise out of a common interlocutory order of the learned Single Judge in a group of writ petitions under Article 226 of the Constitution of India and therefore they are being disposed of simultaneously by a common order after having heard the learned counsel appearing for the appellants. ( 2 ) IN this group of Letters Patent Appeals, the central challenge in the focus has been the Circular dated 4. 10. 2002, issued by the Gujarat Maritime Board ("gmb" for short hereinafter) in respect of the allotment like exchange and amalgamation of the plots for the purpose of ship-breaking at Alang, the centre for ship-breaking which has acquired a global significance for variety of reasons and issued under Regulation 4 (c) of (Gujarat Maritime Board Conditions and Procedures for Granting Permission for Utilising Ship-Breaking Plots) Regulation, 1994 (hereinafter be referred to as "regulation" ). Appellant GMB has assailed, in each petition, the direction to the extent contained in First Part in Clause (iii) of Para 17 of the impugned common interlocutory order contending that the said direction may also partake the effect of compulsory holding an exercise, for allotment of 50% of the available plots by adopting the process of tender-cum-auction which has never been the case from inception. ( 3 ) IN short, in substance, the group of LPAs, at the instance of GMB is for a limited purpose questioning the supposed and assumed legal frame and mechanism of the said part of clause (iii) of Para 17 of the impugned interlocutory order, whereas, in one LPA No. 12 of 2003, the main relief sought in the petition has been against the implementation and execution of the aforesaid controversial Circular and it has been contended in this LPA that the impugned interim order is not sustainable. Such a challenge will be considered hereinafter at the later stage, we first propose to consider merits of the group of 9 LPAs, at the instance of GMB. ( 4 ) IN so far as the group of 9 LPAs at the instance of GMB is concerned, the sole contention and the submission advanced by ld. Senior Counsel Mr. SN Shelat that the Clause III of Para 17 in the impugned common interlocutory order of the ld. ( 4 ) IN so far as the group of 9 LPAs at the instance of GMB is concerned, the sole contention and the submission advanced by ld. Senior Counsel Mr. SN Shelat that the Clause III of Para 17 in the impugned common interlocutory order of the ld. Single Judge is likely or might be construed as directing also the GMB to undertake the process of exercise of tender-cum-auction for at least 50% of the available plots for the purpose of ship-breaking and therefore is illegal, unjust and inconsistent and contrary to the main relief as well as the interlocutory relief sought by the original-petitioners-respondents herein. ( 5 ) IN order to reinforce and substantiate his sole contention, ld. Senior Counsel, Mr. Shelat has also taken us through the main relief, as well as, the interlocutory order sought by the respondent No. 1-original-petitioners. We have dispassionately gone through the main relief, as well as, the interim measure and prayer sought. In substance, the main challenge is against the impugned Circular of GMB dated 4. 10. 2002 and interim relief is to the effect to prevent the appellants GMB from taking further process of allotment of any vacant plot save and except following the tender-cum-auction basis. ( 6 ) THE impugned direction contained in Clause (iii) of Para 17 of the common interlocutory order of the ld. Single Judge reads here as under;" (III) It is further observed that the respondent Board may undertake process of tender-cum-auction basis for atleast 50% of the available plots, and while undertaking the said process, the aforesaid petitioners of the Special Civil Applications No. 12400 of 2002 and 12070 of 2002, if they deposit the amount as ordered earlier shall be allowed to participate at the said auction and the Board will be at liberty to fix routine terms and conditions for tender-cum-auction basis. Such procedure may be undertaken within period of one month from today and the report of the same may be produced before this Court thereafter. Such procedure may be undertaken within period of one month from today and the report of the same may be produced before this Court thereafter. "after having taken even a mere look at the text, tenor and even the texture of the said Clause, the apprehension of the appellant GMB in this group of 9 Letters Patent Appeals that there is a mandatory direction for undertaking process of tender-cum-auction for at least 50% of the available plots, is undoubtedly misconceived, misplaced and malnurtured and mere an apprehension, far from real direction. Be it noted that the respondent-Board who is the appellant in this group of Appeals has perceived the frame and nature of impugned direction contained in Clause (iii) of Para 17 in the impugned interlocutory common order is apparently not conceivable and therefore there would not arise question for further consideration. The challenge is restricted only on this sole plea at the time of hearing and which is not subscribable being bereft of reason and logic, this appeal merits summary dismissal. ( 7 ) TO reinforce our view,it may be noted that it is also clear from the relevant expression employed in Clause (iii), "it is further observed that the respondent-Board may undertake process. . . . . "[emphasis supplied] that the direction for allotment in respect of 50% of the available plots on tender-cum-auction basis is obviously only if and in event of undertaking such a process of allotment. The expression "may undertake process" undoubtedly, and manifestly, indicates that in case, if the allotment of vacant plot process, is undertaken, it shall be only on tender-cum-auction basis. Therefore, in our opinion, the perception conceived by appellant GMB is neither tenable nor sustainable. Again it will be also material to refer at this juncture the direction contained in Clause (i) of Para 17,which reads, as under;" (I) The Board shall not allot any other plot to anyone pursuant to the policy dated 4. 10. 2002 subject to the clarification that it will be open to the Board to follow the procedure as required under Clause 4 (c) of the regulation of tender-cum-auction basis for the remaining plot and to allot the plot to the highest offerer. 10. 2002 subject to the clarification that it will be open to the Board to follow the procedure as required under Clause 4 (c) of the regulation of tender-cum-auction basis for the remaining plot and to allot the plot to the highest offerer. " ( 8 ) IN view of the unqualified statement made on behalf of the GMB with regard to the allotment, coupled with the condition in Clause (i) in Para 17 of the impugned Judgment, it will be also quite clear that the GMB has been restrained from making any allotment of any other plot to any one pursuant to the policy manifested in the impugned Circular dated 4. 10. 2002 and subject to the clarification that it will be open to the GMB to follow the procedure as required under Regulation 4 (c) of (Gujarat Maritime Board Conditions and Procedures for Granting Permission for Utilising Ship-Breaking Plots) Regulation, 1994. ( 9 ) IT will be also material as well as interesting to place it on record, the submission made at the Bar by ld. Senior Counsel, Mr. Shelat that the Civil Application has been made seeking Courts permission with appropriate safeguards and terms and conditions to implement its policy contained in the impugned Circulars dated 30. 7. 2000, 20. 6. 2001 and 4. 10. 2002 annexed collectively at Annexure "e" to the said Civil Application. It is submitted that the said application is moved in view of the observation made by the ld. Single Judge that "it was not proper on the part of GMB to frame the policy in contravention to the regulation and to allot the plot by private negotiations, from amongst the allottee only" contained in Para 13 of the impugned common interlocutory order. Single Judge that "it was not proper on the part of GMB to frame the policy in contravention to the regulation and to allot the plot by private negotiations, from amongst the allottee only" contained in Para 13 of the impugned common interlocutory order. ( 10 ) WITH a view to recapitulate, we decline to entertain the Letters Patent Appeals, against the impugned direction contained in Clause (iii) of Para 17 of the impugned common interlocutory order of the learned Single Judge, mainly on the grounds and reasons as under:- (1) The supposed interpretation and anticipated apprehension of the appellant-GMB in a group of nine Letters Patent Appeals, out of ten, is misplaced and malnurtured, in view of the plain reading of the first part of clause (iii) contained in Para 17 of the impugned interlocutory common order; (2) The entire matter is yet to be considered on merits and the next date fixed by the learned Single Judge is 30th January 2003; (3) The factum of having made an application seeking permission of the Court with appropriate safeguard the policy to implement the impugned Circulars. ( 11 ) WITH these observations, we find no merits in this group of nine Appeals instituted at the instance of GMB and therefore deserves to be summarily dismissed. ( 12 ) INSOFAR as the Letters Patent Appeal No. 12 of 2003 is concerned, considering the main relief as well as interim prayer sought by the appellant, original-petitioners and the submissions made by the learned counsel on behalf of the appellant and the impugned order and while viewed in the light of the three celebrated principles of governing the issue of interlocutory relief, like that, (1) prima facie case; (2) balance of convenience; and (3) irreparable loss, the view taken by the learned Single Judge could not be said to be, in any way, unjust, unreasonable and lnerable. 12. 1. There is no dispute about the fact that the appellant is a defaulter and is not in actual possession of the allotted plot since one and half years and the same has been allotted pursuant to the policy emanated in the impugned Circular long before. Therefore, considering this aspect, no interlocutory relief is granted and again the learned Single Judge has assigned further reasons as to why interlocutory relief should be refused. Therefore, considering this aspect, no interlocutory relief is granted and again the learned Single Judge has assigned further reasons as to why interlocutory relief should be refused. Since this Court, after considering the merits of the Appeal at the interim stage is in agreement with the tentative and interlocutory view manifested in the impugned order, it would not be necessary to reiterate and repeat the same reasons. Again, the learned Single Judge, as stated hereinabove, has posted the matter, on 30th January 2003, for further consideration. 12. 2 in view of the aforesaid grounds and observations, the vehement contention advanced on behalf of the appellant, in the Letters Patent Appeal No. 12 of 2003, that the impugned interlocutory order of the learned Single Judge qua the appellant is bereft of reasons and logic, cannot be subscribed to. In our opinion, this Appeal is also without any substance and deserves to be dismissed at the inception. Accordingly, it shall stand dismissed summarily. ( 13 ) BEFORE parting, we may mention one consensual statement of the learned counsel to the effect that the writ petitions require expeditious hearing. It would therefore be open for the concerned parties or learned counsel to appropriately move the Single Bench and request for expeditious hearing and disposal, in view of the urgency in the matter. ( 14 ) ALL the Civil Applications filed in the concerned Letters Patent Appeal shall stand rejected accordingly at the outset and inception. .