M/s Lulu Convention and Exhibition Center Pvt. Ltd. v Union of India and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNESDAY, THE 22ND DAY OF NOVEMBER 2017/1ST AGRAHAYANA, 1939 WP(C).No. 29593 of 2016 (Y) ---------------------------- PETITIONER: ----------M/S. LULU CONVENTION AND EXHIBITION CENTER PVT. LTD REGISTERED OFFICE 34/1000, NH 47, EDAPPALLY, KOCHI-682024, REP. BY ITS DIRECTOR M.A.NISHAD. BY ADVS.SRI.T.U.ZIYAD SRI.C.S.ABDUL SAMMAD SMT.RAMEENA.P.K. SRI.P.K.SURESH KUMAR (SR.) RESPONDENTS: -----------1. UNION OF INDIA REP. BY THE SECRETARY TO GOVERNMENT MINISTRY OF SHIPPING, NEW DELHI PIN-110001. 2. THE SECRETARY TO GOVERNMENT MINISTRY OF SHIPPING, NEW DELHI PIN-110001. 3. COCHIN PORT TRUST REPRESENTED BY ITS SECRETARY, WILLINGTON ISLAND, KOCHI-682009 R1&2 BY ADV. SRI.KRISHNADAS P.NAIR, CGC R3 BY ADV. SRI.V.ABRAHAM MARKOS R3 BY ADV. SRI.ABRAHAM JOSEPH MARKOS R3 BY ADV. SRI.ISAAC THOMAS R3 BY ADV. SRI.HARAN THOMAS GEORGE R3 BY ADV. SRI.GOVIND VIJAYAKUMARAN NAIR R BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R BY SRI.ISAAC THOMAS, SC, COCHIN PORT TRUST THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## WP(C).No. 29593 of 2016 (Y) ---------------------------- ## APPENDIX PETITIONER'S EXHIBITS ----------------------EXHIBIT P1: TRUE COPY OF THE LEASE DEED 26.07.2011 EXHIBIT P2: TRUE COPY OF THE CONSENT DATED 4.10.2012 ISSUED BY 3RD RESPONDENT. EXHIBIT P3: TRUE COPY OF THE LETTER DATED 4.10.2011 ISSUED B THE MULAVUKADU GRAMA PANCHAYAT EXHIBIT P4: TRUE COPY OF THE CLEARANCE DATED 2.9.2013 ISSUED BY SEIAA, KERALA EXHIBIT P5: TRUE COPY OF THE BUILDING PERMIT DATED 11.10.2013 ISSUED BY THE KULAVUKADU PANCHAYAT EXHIBIT P6: TRUE COPY OF THE JUDGMENT DATED 28.1.2016 IN WRIT APPEAL NO.351/2014 EXHIBIT P7: TRUE COPY OF THE LETTER DATED 27.06.2013 ISSUED BY 3RD RESPONDENT EXHIBIT P8: TRUE COPY OF THE LETTER DATED 30.10.2013 ISSUED BY 3RD RESPONDENT EXHIBIT P9: TRUE COPY OF THE REPLY DATED 19.11.2013 SUBMITTED TO 3RD RESPONDENT EXHIBIT P9(A): TRUE COPY OF REPLY DATED 22.11.2013 SUBMITTED 3RD RESPONDENT EXHIBIT P10: TRUE COPY OF THE PETITION DATED 21.3.2016 SUBMITTED BEFORE 2ND RESPONDENT EXHIBIT P11: TRUE COPY OF THE PETITION DATED 26.4.2016 SUBMITTED BEFORE 3RD RESPONDENT EXHIBIT P12: TRUE COPY OF THE LETTER DATED 13.5.2016 ISSUED BY 3RD RESPONDENT. EXHIBIT P13: TRUE COPY OF THE APPLICATION DATED 15.6.2016 SUBMITTED BY THE PETITIONER. EXHIBIT P14: TRUE COPY OF THE LETTER DATED 23.6.2016 ISSUED BY 3RD RESPONDENT. EXHIBIT P15: TRUE COPY OF THE LETTER DATED 24.6.2016 SUBMITTED BY THE PETITIONER. EXHIBIT P16: TRUE COPY OF THE LETTER DATED 19.7.2016 SUBMITTED BY THE PETITIONER. EXHIBIT P17: TRUE COPY OF THE LETTER DATED 14.112016 SUBMITTED BY THE PETITIONER. EXHIBIT P18: TRUE COPY OF THE EX PARTE ORDER DATED 20.12.2013 OF TRIBUNAL, THIRUVANANTHAPURAM. WP(C).No. 29593 of 2016 (Y) EXHIBIT P19: TRUE COPY OF THE STOP MEMO DATED 24.12.2013 ISSUED BY MULAVUKADU GRAMA PANCHAYAT. EXHIBIT P20: TRUE COPY OF THE INTERIM ORDER DATED 3.3.2014 IN WA 351/14 EXHIBIT P21: TRUE COPY OF THE LETTER DATED 28.10.2011 SENT TO DISTRICT COLLECTOR ERNAKULAM BY 3RD RESPONDENT. EXHIBIT P22: TRUE COPY OF THE LETTER DATED 29.09.2012 SUBMITTED BEFORE THE 3RD RESPONDENT. EXHIBIT P23: TRUE COPY OF THE LETTERNO.C/305/13 DATED 10.4.2013 OIF SENIOR TOWN PLANNER, ERNAKULAM. EXHIBIT P24: TRUE COPY OF THE LETTER DATED 4.5.2013 ISSUED BY THE SECRETARY OF MULAVUKAD GRAMA PANCHAYAT. EXHIBIT P25: TRUE COPY OF NO OBJECTION CERTIFICATE DATED 14.3.2014 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P26: TRUE COPY OF THE LETTER DATED 24.5.2013 SUBMITTED THE PETITIONER. |RESPONDENTS' EXHIBITS|RESPONDENTS' EXHIBITS| |---|---| |---------------------|| |R3(A):|TRUE COPY OF LIST OF DATES PREPARED BY THE 3RD| ||RESPONDENT.| |R3(B):|TRUE COPY OF COMMUNICATION DATED 4.5.2016 ISSUED BY THIS| ||RESPONDENT TO THE 2ND RESPONDENT.| |R3(C):|TRUE COPY OF LETTER DATED 9.9.2016 ISSUED BY THE 2ND| ||RESPONDENT TO THE 3RD RESPONDENT.| |R3(D):|TRUE COPY O LETTER DATED 3.2.17 ISSUED BY THE 3RD| ||RESPONDENT TO THE SECRETARY TO THE GOVERNMENT OF INDIA,| ||MINISTRY OF SHIPPING.| |R3(E):|TRUE COPY OF LETTER DATED 9.3.17 ISSUED BY THE UNDER| ||SERCRETARY TO THE GOVERNMENT OF INDIA MINISTRY OF| ||SHIPPING NEW DELHI TO THE CHAIRMAN OF THE 3RD RESPONDENT.| |R3(F):|TRUE COPY OF LETTER 18.3.2017 ISSUED BY THE SECRETARY OF| ||THE 3RD RESPONDENT TO THE 2ND RESPONDENT SECRETARY TO THE| ||GOVERNMENT OF INDIA, MINISTRY OF SHIPPING NEW DELHI.| /TRUE COPY/- PA TO JUDGE ## **ANU SIVARAMAN, J.** ## **= = = = = = = = = = = = = = =** ## **W.P.(C).No.29593 of 2016** **= = = = = = = = = = = = = = = Dated this the 22[nd] day of November, 2017** ## **JUDGMENT** ## 1.This writ petition is filed with the following prayers:- - i. To declare that the unreasonable conditions imposed by the Cochin Port Trust is violative of Articles 14,19 and 21 of the Constitution of India. - ii. To issue a Writ of Mandamus or any other writs or orders commanding the Union of India to issue appropriate directions under Section 111 of the Major Port Trust Act to meet the extra ordinary situation in exercise of its powers under that provision. - iii. To issue a Writ of Mandamus or any other writs or orders commanding 3[rd] respondent to grant extension of time for completion of the construction without insisting on further financial commitments on the part of the petitioner or in the alternative direct the 3[rd] respondent Cochin Port Tyrust to re-fix the date of commencement of Ext.P1 lease from 26.07.2011 by extending four years from therein, in the best interest of justice. - iv. To issue a Writ of Mandamus or any other writs or orders directing the 2[nd] respondent to consider and dispose of Ext.P10 petition with due application of mind within a time limit. - v. To issue such other writs, orders or directions as this Hon'ble Court may deem fit and proper in the circumstances of the case. - vi. (a) To issue a Writ of Mandamus commanding the Cochin Port Trust to grant an additional NOC as sought in Exhibit P13 as part of the NOC already granted, which they are illegally refusing on irrelevant and extraneous grounds and issue such further or other orders in the circumstances of the case.” W.P.(C).No.29593/16 2 2. It is submitted that the petitioner had entered into Exhibit P1 agreement with the 3[rd] respondent with respect to 10.59 Hectares of reclaimed land for construction of hotels, resorts, convention centre, shopping mall etc. It is stated that the construction was to commence on 09.02.2011. However, due to the delay in obtaining possession certificate, the construction could not be commenced till 2013. It is stated that by Exhibit P8 communication, the 3[rd] respondent had required the petitioner to pay an additional amount of Rs.1,41,77,460/- as additional lease rent calculated at 50% of the lease rent for the extended period. It is stated that this amount had been paid under protest by the petitioner. The petitioner had also preferred Exhibit P10 request before the Central Government seeking directions to the 3[rd] respondent in terms of Section 111 of the Major Port Trust Act. It is submitted that thereafter Exhibit P12 communication had been issued by the 3[rd] respondent directing the payment of Rs.6,14,43,425/- as additional lease rent for the period from 2.11.2013 to 31.3.2017. It is contended that since Exhibit P10 request for directions was pending before the Central Government, the petitioner had not made payments as demanded in Exhibit P12. The petitioner contends that the 3[rd] respondent W.P.(C).No.29593/16 3 has no authority to demand additional lease rent from the petitioner going by the terms of the contract. It is also contended that though an NOC was issued for the mortgage of the leasehold right of the petitioner for financial assistance, the further request made by the petitioner for NOC for availing additional financial assistance is not being considered by the respondents due to non payment of the amounts demanded by Exhibit P12. 3. The learned Senior Counsel appearing for the petitioner contends that Exhibit P10 representation preferred by the petitioner before the Central Government may be directed to be considered in terms of Section 111 of the Major Port Trust Act. 4. Detailed pleadings have been placed on record by the 3[rd] respondent contending that the writ petition which is seeking enforcement of the clauses of the contract is not maintainable under Article 226 of the Constitution of India. It is contended that the representation preferred by the petitioner before the Central Government is also not maintainable under Section 111 of the Major Port Trust Act, 1963. It is further contended that W.P.(C).No.29593/16 4 the said representation had already been disposed of by the Central Government and the 3[rd] respondent had been informed of the fact by Exhibit R3(c) communication dated 09.09.2016. It is further contended that the 3[rd] respondent had addressed the Union of India with regard to the permissibility of issuing further NOC to the petitioner, but the same had not been clarified by the Central Government which was the reason for the non issuance of the NOC. 5. A statement has been filed on behalf of respondents 1 and 2. It is contended therein that the issue of grant of NOC to the petitioner by the 3[rd] respondent is a matter to be decided by the 3[rd] respondent and the Government had already informed the 3[rd] respondent accordingly. 6. I have considered the contentions advanced. It is clear from Ext R3(c) document produced by the 3[rd] respondent with their counter affidavit that the rejection of representation preferred by the petitioner before the Central Government was never intimated to the petitioner. No copy of Exhibit R3(c) is seen marked to the petitioner. It only says that petition filed by the W.P.(C).No.29593/16 5 petitioner under Section 111 of the Major Port Trust Act, 1963 before the Secretary (Shipping) has been considered in the Ministry and it has been decided that the CoPT may proceed in the matter and take all necessary actions as per extant provisions in the best interest of the Port. 7. It appears that Exhibit R3(c) does not amount to final disposal of Exhibit P10 representation preferred by the petitioner. I am of the opinion that the detailed representation preferred by the petitioner before the Central Government seeking directions in terms of Section 111 of the Major Port Trust Act requires to be considered with notice to the petitioner and the 3[rd] respondent and to be dealt with in accordance with law. 8. The learned Senior Counsel appearing for the petitioner contends that in case the issues raised in this writ petition are being considered in full by the Central Government in exercise of its powers under Section 111 of Major Port Trust Act, the petitioner is prepared to pay the entire amount as demanded in Exhibit P12 under protest, for the time being. The learned Senior Counsel contends that the additional NOC for availing the W.P.(C).No.29593/16 6 enhanced financial assistance may be directed to be issued by the 3[rd] respondent. 9. After having considered the contentions advanced on all sides, I am of the opinion that the issue raised is one which is to be resolved by the Central Government, in view of the fact that Exhibit P10 has been preferred before the Central Government. In view of the statement filed by the Central Government to the effect that the Central Government has no objection in the grant of additional NOC by the CoPT to the petitioner, and in view of the fact that NOC had already been granted for availing financial assistance the CoPt is directed to issue the NOC as sought for by the petitioner. The petitioner shall pay the amounts as demanded by Exhibit P12 to the 3[rd] respondent under protest without prejudice to contentions on merits. The 2[nd] respondent is directed to take up, consider and pass orders on Exhibit P10 representation on merits, after hearing the petitioner and the 3[rd] respondent within a period of three months from the date of receipt of a copy of this judgment. All issues are left open. Sd/- **Anu Sivaraman, Judge** sj