KHEMCO & CO. PVT. LTD. v. COCHIN PORT TRUST & ORS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.MUHAMED MUSTAQUE** **TUESDAY, THE 11TH DAY OF NOVEMBER 2014/20TH KARTHIKA, 1936** ## **WP(C).No.29436 of 2014 (D)** **---------------------------------------** ## **PETITIONER:** **-------------------** **KHEMCO & CO. PVT. LTD. REPRESENTED BY BRANCH MANAGER, P.F.KAMATH,S/O.LATE PADMANBHA KAMMATH, H.NO.4/717,KRISHNAN NAIR LANE, NORTH CHERLAI,COCHIN -2.** **BY SRI.N.N.SUGUNAPALAN (SENIOR ADVOCATE.) ADV.SRI.S.SUJIN** **RESPONDENTS:** **------------------------** **1. COCHIN PORT TRUST,WILLINGDON ISLAND, REPRESENTED BY ITS CHAIRMAN, COCHIN- 682 003.** **2. THE CHAIRMAN,COCHIN PORT TRURST, PORT TRUST BUILDING,WILLINGDON ISLAND, COCHIN - 682 003.** **3. UNION OF INDIA,REP. BY THE SECRETARY. MINISTRY OF SHIPPING AND TRANSPORT, NEW DELHI - 110 001.** ## **R1 & R2 BY ADVS.SRI.V.ABRAHAM MARKOS** **SRI.BINU MATHEW** **SRI.TOM THOMAS (KAKKUZHIYIL) SRI.ABRAHAM JOSEPH MARKOS SRI.ISAAC THOMAS** **SRI.NOBY THOMAS CYRIAC R3 BY SRI.N.NAGARESH,ASSISTANT SOLICITOR GENERAL.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11-11-2014, ALONG WITH W.P(C) NO.27972/2014 AND W.P (C) NO.29830/2014 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **pk** ## **WP(C).No.29436 of 2014 (D)** ## **---------------------------------------** ## **APPENDIX** ## **PETITIONERS EXHIBITS;** ## **-----------------------------------** ## **EXT.P1:TRUE COPY OF THE RENEWED LEASE DEED BETWEEN THE PETITIONER AND THE 1ST RESPONDENT.** ## **EXT.P2:TRUE COPY OF THE LETTER DATED 4/9/2014.** - **EXT.P3:TRUE COPY OF THE NOTICE DATED 27/10/2014 ISSUED BY THE PORT TRUST.** - **EXT.P4:TRUE COPY OF THE LETTER IN AUGUST, 2014 ADDRESSED BY MALABAR CEMENTS TO THE DIVISIONAL RAILWAY MANAGER.** - **EXT.P5:TRUE COPY OF THE APPLICATION DATED 26/8/2014 SUBMITTED BY MALABAR CEMENTS.** - **EXT.P6:TRUE COPY OF THE DECISION DATED 29/8/2014 OF THE LAND ALLOTMENT COMMITTEE.** - **EXT.P7:TRUE COPY OF LETTER DATED 28/3/2011 TO THE LEASE HOLDERS ASSOCIATION.** - **EXT.P8:TRUE COPY OF DECISION DATED 29/9/2014 OF THE BOARD OF TRUSTEES OF THE COCHIN PORT TRUST.** - **EXT.P8:TRUE COPY OF THE DECISION TAKEN BY THE BOARD OF TRUSTEESAGENDA ITEM NO.D-9 DATED 29.9.2014.** ## **RESPONDENTS EXHIBITS:** **------------------------------------EXT.R1(a): TRUE COPY OF LAND POLICY GUIDELINES 2014 ISSUED BY THE GOVERNMENT OF INDIA.** - **EXT.R1(b):TRUE COPY OF ORDER DATED 19.8.1996 PASSED BY THE CENTRAL GOVERNMENT.** **EXT.R1(c):TRUE COPY OF LETTER DATED 23.5.1997 ISSUED BY THE RESPONDENT TO THE PETITIONER.** **EXT.R1(d):TRUE COPY OF LETTER DATED 21.12.2011 ISSUED BY THE 1ST RESPONDENT.** **EXT.R1(e):TRUE COPY OF NOTIFICATION DATED REGARDING LOGISTIC PARK UNDER THE LAND USE PLAN BY THE BOARD OF THIS RESPONDENT.** **EXT.R1(f):TRUE COPY OF RELEVANT PORTION OF AGENDA AND MINUTES HELD ON 29.9.2014 BY THIS RESPONDENT.** ## **WP(C).No.29436 of 2014 (D)** **---------------------------------------** **EXT.R1(g):TRUE COPY OF PERMISSION RECEIVED ON 21.10.2014 GRANTED BY THE GOVERNMENT OF KERALA FOR MCL PROJECT.** **EXT.R1(h):TRUE COPY OF LETTER DATED 6.11.2014 ISSUED BY THE PETITIONER.** **//TRUE COPY//** **P.S. TO JUDGE** **pk** ## **A.MUHAMED MUSTAQUE, J.** _*********************************************************_ W.P.(C) No.29436, 27972 & 29830 of 2014 _*********************************************************_ Dated this the 11[th ] day of November, 2014 ## **JUDGMENT** These writ petitions are filed by the lessees and some of them are sub-lessees under the lessee in respect of the land owned by the Cochin Port Trust. They have approached this Court threatened with the eviction from the leased premises. 2. Under Section 34(1) of the Major Port Trust Act, 1963, ports are empowered to lease out land for the period upto 30 years. The petitioners case is that proposed eviction is illegal in view of Clause 16.3 (b) of the Policy Guidelines for Land Management by Major Ports, 2014 issued by the Government of India, which is stated as follows: “If the land is not required by the Port for its own use, the Port should then check whether the land use is consistent with the land use plan and whether the lessees are not W.P.(C) No.29436 27972 & 29830 of 2014 2 in default. Thereafter, if it is so, the following procedure will be adopted for renewal of lease of land outside the custom bond area.” 3. According to the petitioners, the land ordered to be surrendered is for the purpose of Malabar Cements Limited and therefore, it is required to create another lease or transfer. Thus the petitioners cannot be directed to surrender the land. The petitioners submit that all of them have put up large building after expending huge amount and therefore, they cannot move out from the present premises to accommodate the need of another entity. It is further submitted that Board of Trustee is being reconstituted and the decision of the earlier Board has no sanctity. The learned senior counsel for the petitioners also have relied on the judgment of the Hon'ble Supreme Court in **Board of Trustees for the Visakhapatnam Port Trust v. State of A.P. and Others [(1999) 6 SCC 78** ]. W.P.(C) No.29436 27972 & 29830 of 2014 3 4. In this matter, a statement has been filed on behalf of respondents 1 and 2. It is stated in paragraph-8 reads as follows: “It is pertinent to note that the Port is in urgent need of the land in issue in the instant case along with surrounding areas admeasuring about 2.83 hectares equivalent to 7 acres for a Project for setting up a Bulk Cement Logistics and Allied Material Handling Hub through the Malabar Cements Limited on nomination basis (hereinafter referred to as “MCL Project”). The MCL project is expected to become one of the highest contributors to the throughout of the Port. In this connection, it is also pertinent to note that after the container handling has been transferred to the International Container Transshipment Terminal, Vallarpadom the facilities at Willingdon Island is restricted to bulk and general cargo.” 5. The reasons stated in paragraph 8 is that the Port Trust need to utilise the land for the purpose of Port activities W.P.(C) No.29436 27972 & 29830 of 2014 4 being envisaged through 'MCL Project' sanctioned by the Government of Kerala and this would fall within the need of the Port itself. The land is one of the most important uses of the Port to promote their own business and accommodate the increasing traffic at Ports as spelt out in the policy decisions. Therefore, it cannot be said that the land is not required by the Port for its own use even though the project is being implemented for the Malabar Cements Limited. The petitioners have no case that the Malabar Cements Limited is not intended to use this land for the purpose of handling the raw materials and as a Logistic Handling Hub. 6. It is submitted by the learned senior counsel for the Port Trust with reference to various Annexures produced along with the counter affidavit that the area occupied by the petitioners is the ideal location to locate the logistics for Malabar Cements. It is further submitted that it would also W.P.(C) No.29436 27972 & 29830 of 2014 5 augment the Port activity and generate the income to the Port Trust. It is also submitted that the area occupied by the petitioners is identified as logistic park under the land use plan and also is directly behind 'Q7 berth'. 7. Considering the nature of the proposed activity of the Malabar Cements Limited, I am of the view that this is a Port activity itself and consistent with the policy with the priority to the Port activities than any other commercial activities for which the land is leased. Therefore, I do not find any violation of the Land Management Policy for the year, 2014. It is to be noted that the petitioners have enjoyed initial lease period of 30 years and the renewal was extended with a consent of the Government of India. The petitioners say that they are entitled for renewal as a matter of right and without giving an option for renewal, the eviction ordered is illegal. As has been noted the requirement is for their own use of the Port Trust and therefore, W.P.(C) No.29436 27972 & 29830 of 2014 6 the petitioners cannot claim for renewal in terms of the Land Management Policy. The petitioner's challenge with regard to the authority of the Board is unsustainable, the petitioners are estopped from challenging paramount title of the lessor. The judgment relied in Visakhapatnam Port Trust's case ( _supra_ ) has no relevance in this matter. 8. It is submitted by the learned Senior counsel for the petitioners that the Port Trust is having substantial vacant area in their possession and the petitioners can be accommodated in other areas. The learned senior counsel for the Port Trust would submit that the claim of the lessees can be considered for rehabilitation and appropriate decision will be taken by the Port Trust. Considering the fact that the petitioners have put up the building and in occupation of long years, I am of the view that a decision shall be taken to rehabilitate the Port Trust area W.P.(C) No.29436 27972 & 29830 of 2014 7 consistent with the land management policy. Therefore, a decision shall be taken by the Port Trust to rehabilitate the lessees and also sub-lessees(if the sub-lessees can be accommodated under the Land Management Policy). The decision shall be taken within a period of one month after affording an opportunity of hearing to the petitioners. Till a decision is taken by the Port Trust, status quo shall be continued. In view of the above, these writ petitions are disposed of. Sd/- **A.MUHAMED MUSTAQUE, JUDGE** ln