IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1045 of 2010 For Approval and Signature: HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA and HONOURABLE MR. JUSTICE ANANT S. DAVE Whether Rep: 1 che judome eters of Local Papers may be allowed to see yee 2 To be referred to the Reporter or not ? Yes er their Lordships wish to see the fair copy of the judgment ? No to the India, 1950 or 5 Whether it is t es a substantial question of etation of the constitut made thereunder ? No to the civil judge 2 No LH MEHTA & 3 - Petitioner(s) Versus KANDLA PORT TRUST & 2 - Respondent(s) Appearance MR MIRIR JOSHI Sr. Counsel with MR NV ANJARTA KM PATEL Sr. Counsel with MR DHAVAL D VYAS £ ICE SERVED BY DS for Respondent(s) : 2 - 3. Petitioner(s) : 1 - CORAM : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA and HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 09/05/2011 CAV JUDGMENT (Per : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA) The writ petition has been preferred by the petitioners challenging the resolution of Board of Trustees of Kandla Port Trust dated 7.7.2009 and the consequential circulardated 29.10.2009 whereby the transfer fee in respect of transfer of sale of leasehold rights of a particular plot is sought to be levied with effect from 1.1.2004, Further prayer has been made to declare that the transfer fee in respect of transaction of transfer of plots, the basis and criteria adopted for determining the transfer fee is artificial, unrealistic, arbitrary and very antithetic to the underlying purposes of levy of transfer fee. 2. The first and the third petitioners are lessee, having leasehold rights on residential plot No.I11, Sector-2 in the township of Gandhidham and plot No.A-119 of Kandla Port Trust in the area known as Bhaipratapnagar, Gandhidham respectively. 2.1 The second petitioner is the Gandhidham Property Dealers’ Association formed with an object to provide a platform to the grievances of inhabitants of the town relating to property matters and to solve property related grievances and the fourth petitioner a member of Gandhidham Chamber of Commerce and Industries, Gandhidham associated with various social and Gandhidham township activities. He is also a lessee owner of the leasehold rights of plot of Adipur-Kachchh 3. The case was heard by the learned Single Judge and taking into consideration the fact that the petitioners have jointly filed the writ petition raising general question in public interest and pleaded that “the issue and the subject matter affects the entire population of the plot holders in the Gandhidham township and all residents and inhabitants in the township are affected persons”, observed that writ petition is not adversary litigation and preferred in public interest of residents and inhabitants of the township of Gandhidham, referred to matter to the Division Bench to treat and hear the matter as a public interest litigation. 4. The respondents, on appearance, have challenged the maintainability of the writ petition as the allottees acquired right pursuant to agreement reached between the parties through their respective lease deeds. 5. The case of the petitioners is that Kandla Port Trust is a Board within the meaning of Section 2(b) of the Major Port Trusts Act, 1963 (hereinafter referred to as “the Port Trusts Act, 1963”). The constitution of the Board of Trustees of Kandla Port Trust isdrawn from the provisions of the said Act, and the powers are derived from the said statute. The second respondent is the authority of Kandla Port Trust. The third respondent is the Tariff Authority for Major Ports (hereinafter referred to as “the Tariff Authority”) set up under Section 47-A of the Major Port Trust Act, 1963 and was constituted on 10.4.1997. The third respondent — Tariff Authority is vested with the powers under the Act in relation to regulating and determining the Port Tariff, services rendered in the Port area etc. within the scope of Sections 48 to 50 of the Act. The respondents are statutory authorities and are “State” within the ambit of Article 12 of the Constitution of India and, therefore, the writ is maintainable against them. 6. The submissions and propositions canvassed on behalf of the petitioners and challenge is made, particularly on the following grounds :~ (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, the 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 Trusts 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 tariff and charges and not otherwise (c) Therefore, respondent No.3 Tariff Authority of India cannot 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 colourable exercise of powers. (d) The Development Charge having been already levied in the first instance, the Transfer Fee based upon the Development Charges cannot be justified in as much