Yazdani International Private Limited v. Auroglobal Comtrade Private Limited And Others

J. Chelameswar, J.— Leave granted in all the SLPs. All these SLPs arise out of an order of the Orissa High Court made in Auroglobal Comtrade (P) Ltd. v. Paradeep Port Trust WP (C) No. 11785 of 2012 on 2-8-2012. The said writ petition was filed by the appellant in the appeal arising out of Special Leave Petition (C) No. 38013 of 2012 i.e M/s Auroglobal Comtrade (P) Ltd. (hereinafter referred to as “Auroglobal”).

2. Since the appeals at hand require examination of the rights and obligations arising under the Major Port Trusts Act, 1963, we deem it appropriate to examine the scheme of the said Act, insofar as it is irrelevant.

3. Paradeep Port is a major port as defined under Section 3 sub-section (8) of the Indian Ports Act, 1908. The activities of all major ports including the Paradeep Port are regulated by various enactments such as the Indian Ports Act, 1908 and the Major Port Trusts Act, 1963 (hereinafter referred to as “the Act”), etc. The Act stipulates under Section 3 that the Central Government shall cause to be constituted a Board of Trustees with respect to each of the major ports. Such Boards are declared to be bodies corporate. The second respondent in the appeal arising out of SLP (C) No. 26321 of 2012 (also a respondent in all the appeals), described (wrongly) as Paradeep Port Trust is one such Board of Trustees constituted under Section 3 of the Act. But for the sake of convenience hereinafter will be referred to as “the Board”. Each such Board is authorised under Section 37 to compel any sea-going vessel within the port or “port approaches” to use the various facilities provided by the Board. Section 35 enumerates the various facilities and services at the port which can be undertaken by the Boards.

4. Section 48 of the Act authorises the framing of a “scale of rates” for any one of the services rendered by a Board. Such a scale of rate is required to be notified in the Official Gazette. The scale of rates is required to be framed by the Tariff Authority for Major Ports constituted under Section 47-A. Section 49 of the 1963 Act, as it stands today reads as follows:

“49. Scale of rates and statement of conditions for use of property belonging to Board.—(1) The Authority shall from time to time, by notification in the Official Gazette, also frame a scale of rates on payment of which, and a statement of conditions under which, any property belonging to, or in the possession or occupation of, the Board, or any place within the limits of the port or the port approaches may be used for the purposes specified hereunder—

(a) approaching or lying at or alongside any buoy, mooring, wharf, quay, pier, dock, land, building or place as aforesaid by vessels;

(b) entering upon or plying for hire at or on any wharf, quay, pier, dock, land, building, road, bridge or place as aforesaid by animals or vehicles carrying passengers or goods;

(c) leasing of land or sheds by owners of goods imported or intended for export or by steamer agents;

(d) any other use of any land, building, works, vessels or appliances belonging to or provided by the Board.

(2) Different scales and conditions may be framed for different classes of goods and vessels.

(3) Notwithstanding anything contained in sub-section (1), the Board may, by auction or by inviting tenders, lease any land or shed belonging to it or in its possession or occupation at a rate higher than that provided under sub-section (1).”

5. It is necessary to notice here that sub-section (3) of Section 49 was inserted by Act 17 of 1982 with effect from 31-5-1982. For the present, it is sufficient to note that Section 49 also authorises the authority constituted under Section 47-A to frame a “scale of rates” for using any property either belonging to or in the possession or occupation of the Board. The distinction between Sections 48 and 49 is that while Section 48 deals with the scale of rates for the services to be rendered by the Board, Section 49 deals with the scale of rates for the utilisation of the property (both movable and immovable) of the Board. However, sub-section (3) authorises the Board to collect amounts higher than those prescribed under the scale of rates contemplated under sub-section (1) either by resorting to a process of auction or inviting tenders in the context of the use of the property belonging to the Board. The relevance of the said sub-section will be discussed later.

6. Chapter IX of the Act contains provisions which authorise the Government of India to exercise supervisory control as specified in the various provisions of the said Chapter over the activities of the Boards constituted under the Act. Relevant in the context of the present litigation is Section 111 of the Act which declares that both, the authority constituted under Section 47-A and the Boards constituted under the Act are bound “by such directions on questions of policy” as the Central Government may give in writing from time to time.

7. In exercise of the authority under Section 111, it appears that the Central Government issued certain directions to all the major ports except Kolkata and Mumbai styled as Land Policy for Major Ports initially in the year 2004 which was modified in the year 2011.

8. In the first of the abovementioned policies, the Government took note of the fact that under Section 34 of the Act, the Board of a major port can lease out “its immovable property”. However, under the policy, the Central Government directed that “no lease or sale of land inside the custom bound area should be permitted”, but should be given on licence basis only.

9. In the policy directions issued under the Land Policy for Major Ports, 2010, there is a slight shift in the policy regarding the land inside the custom bound area. Under the 2010 Policy, it is stated that “normally land inside custom bound area should be given on licence basis only”. Thus, it can be seen that while the 2004 Policy prohibited giving out of the land inside the custom bound area by any mode other than licence, the 2010 Policy stipulated licensing is the normal rule, implying there could be exceptions to the rule.

Facts leading to the litigation

10. Pursuant to the order dated 2-8-2012 WP (C) No. 11785 of 2012 of the Orissa High Court, the Board cancelled the licences of 48 manually operated iron ore storage plots and 11 mechanically operated storage plots. It appears from the additional affidavit filed by the Board on 25-11-2013, of the 59 licences purported to have been cancelled by the Board, only 38 licences of the manually operated plots category and 7 of the mechanical category are before us.

11. It appears from the material on record that there are three classes of plot holders who manually handle iron ore exports in the Paradeep Port; (i) 15 plot holders who were allotted plots prior to May 2005; (ii) 52 plot holders who were allotted plots from June 2005 to May 2011 on the basis of auction; and (iii) 13 plot holders who acquired plots under the system of tendering process subsequent to June 2011.

12. By notice dated 2-6-2011, the Paradeep Board invited applications from interested iron ore exporters, traders, etc. for allotment of 20 manual iron ore plots of different sizes. Auroglobal was one of the parties who responded to the said tender notice and eventually became the successful bidder for one of the plots [Plot No. I-5 (C group) admeasuring 5500 sq m]. By letter dated 1-8-2011, the Paradeep Board informed Auroglobal that it had been declared to be one of the successful bidders for the allotment of one manual iron ore storage plot subject to various terms and conditions. Relevant for our purpose are Conditions 1, 2 and 4.

13. After securing allotment of the plot, Auroglobal utilised the same for about a year and eventually approached the Orissa High Court by way of Writ Petition No. 11785 of 2012, some time in July 2012 with prayers as follows:

I. To hold and declare that the petitioner has a right of renewal of the allotment with respect to Plot No. I-5 inside the port area;

II. Holding and declaring that the pricing modality arrived at through the tender is contrary to the tender conditions and the conditions for renewal in the tender are violative of Articles 14, 16 and 19 of the Constitution of India;

III. Set aside imposing/demanding of licence fee by the opposite parties for renewal under the tender conditions;

IV. Direct the opposite parties to renew and extend the allotment of the plot without demanding additional licence fee under Annexure 5;

V. To quash the letter dated 5-7-2012 under Annexure 9.

14. Along with the said writ petition, MC No. 11005 of 2012 came to be filed for certain interim relief. It is in the said MC, the order under appeal came to be passed. By the said order WP (C) No. 11785 of 2012, the High Court opined that the Paradeep Board did not follow a uniform and consistent procedure in making allotment of various plots of lands to various parties and that plots could be allotted only on the basis of an auction to the highest bidders. It also found fault with the Paradeep Board for having renewed certain licences granted earlier.

15. Pursuant to the abovementioned order WP (C) No. 11785 of 2012 of the High Court, notices were issued by the Board (at least to some of the appellants herein) 21-8-2012 To, the substance of which is that the allotment order made earlier was cancelled and called upon the allottee to hand over vacant possession of the plot within 15 days from the date of the letter.

16. Hence, this batch of SLPs by the various allottees.

17. Auroglobal also preferred an SLP on slightly different grounds. We propose to deal with the case of Auroglobal separately. We first deal with the cases of the appellants other than Auroglobal.

18. It is argued on behalf of the appellants that the High Court grossly erred in coming to the conclusion that the allotments made in favour of various appellants are in violation of the law declared by this Court in various decisions relied upon by the High Court in its order including Centre for Public Interest Litigation v. Union of India (2012) 3 SCC 1 (also known as 2G case). Most of the appellants (details of which are available on record and not in dispute) came to be allotted with plots of land either pursuant to a process of auction or tender where each of the appellant had to pay substantial amounts to the Board for securing the allotment of the plots, apart from agreeing to pay the amounts stipulated by the scale of rates prescribed by the Tariff Authority. Therefore, the assumption of the High Court that the principles of law laid down by this Court in the various judgments referred to by the High Court starting from Dayaram Shetty (1979) 3 SCC 489 to 2G case (2012) 3 SCC 1 is without any factual basis. The allotments made in favour of the appellants are in consonance with the law laid down in 2G case (2012) 3 SCC 1.

19. It is also argued on behalf of the appellants that in the subsequent judgment of the Supreme Court in Natural Resources Allocation, In re, Special Reference No. 1 of 2012 (2012) 10 SCC 1, the Constitution Bench of this Court clearly held that in the matter of alienation of the property by the State or conferment of largesse, auction is a preferred mode of securing compliance with the commands of the Constitution under Article 14 of the Constitution, but not the only mode. It is argued that even if auction is the only mode of distributing the State largesse or alienating property of the State which passes the test of Article 14, most of the appellants, as already indicated, have secured allotment of plots either through the process of auction or of tenders which is nothing but a variant of the system of auction. Therefore, allotments made in their favour could not be faulted.

20. It is further submitted that the conclusion of the High Court that the “licence cannot be granted in favour of persons after expiry of the licence period by way of renewal” is without any basis in law. Renewal of licence is a matter of contract between the parties. If the initial allotment of a plot on licence basis is otherwise in accordance with law, renewal of such arrangement is a matter which ought to be governed by the terms of the agreement between the parties. There is nothing in law or in any of the decisions of this Court relied upon by the High Court which requires the State or its instrumentalities not to enter into any contract or arrangement which is renewable periodically.

21. The learned counsel also submitted that each of the appellants have a right to renewal of the allotment made to them and there is nothing in any one of the judgments of this Court relied upon in the order under appeal which militates against such right of renewal of the allotment which is otherwise validly obtained. It is submitted that any view of law to the contrary would not only be impracticable but also detrimental to the larger public interest as such short-term arrangements would not be conducive to the overall economic growth of the country. It is further submitted by the appellants that none of the appellants were parties before the High Court and the order WP (C) No. 11785 of 2012 of the High Court is in flagrant violation of the audi alteram partem rule. If only the appellants had an opportunity to present their cases before the High Court, the appellants would have placed on record all relevant facts to substantiate their arguments mentioned earlier. Therefore, on this ground alone the order under appeal is required to be set aside. Lastly, they submitted that the order is neither sought by Auroglobal, who was the petitioner before the High Court, nor is within the scope of the final relief sought by Auroglobal in the writ petition.

22. With regard to the limited number of plots allotted without following either the auction route or the tender route it is submitted that such allotments were made prior to 2005 at which point of time there was not much demand for allotment of plots by the Board, therefore, the allotments were on application basis. Hence, such allotments cannot be faulted.

23. Mr Rohinton Nariman, learned Senior Counsel appearing for the Board argued that: (i) none of the appellants have a “right of renewal” as their possession is only a permissive possession (a licence) which does not create any interest in the property to enable them to claim a “right” of renewal, (ii) as on today the Board needs the entire area of land (occupied, by these various appellants by virtue of the allotment orders given in their favour earlier) for the purpose of developing the port for the creation of modern deep draught coal and iron ore berths with 10 million tonnes capacity each. The submission is based on the pleadings before this Court. The Board therefore, does not propose to continue or renew the licences of the appellants irrespective of the fact whether the order under appeal is tenable or not, this Court may not exercise its extraordinary discretion under Article 136 to enable the appellants to cling on to the property over which they have no substantive right.

24. The first question which is to be examined is whether this Court is required to set aside the order under appeal and also the consequential notices issued by the respondent Board to the various appellants on the ground that the order under appeal is made in breach of the rule of audi alteram partem?

25. None of the appellants herein (except Auroglobal) was a party to the proceedings before the High Court. Therefore, there was no occasion for the High Court to examine the twin questions whether the respective allotments made in favour of each of the appellants herein are in accordance with law and whether the appellants have any legally indefeasible right of renewal of such allotments or to continue use of the respective plots allotted to them. In the normal course, the order under appeal is required to be set aside on the simple ground that the same is in breach of principles of natural justice. But we do not propose to do so for reasons to follow.

26. The undisputed facts in these batch of matters are that most of the appellants were allotted plots either pursuant to an auction or through the process of tender system, the details of which are already taken note of (see footnote 6). It is also not in dispute that each of the plots, which are the subject-matter of these appeals was allotted on a licence.

27. Before we deal with the new ground urged by the Board, we would like to deal with the question of the legality of the initial allotment in favour of each of these appellants. In view of the fact that most of the licences in favour of the appellants herein came to be granted pursuant to a process of either an auction or tender, those allotments, in our view, cannot be said to be inconsistent with the principles of law laid down by this Court in 2G case (2012) 3 SCC 1 in the absence of any other circumstance vitiating the allotment. Insofar as the allotment of plots made on application (prior to 2005), the Paradeep Port Trust came out with a clear explanation that there was hardly any competition at that point of time for the allotment of plots. Therefore, we do not see any reason to find any fault with such allotment on the ground that the allotment was made without following the procedure of auction or tender. More particularly, in the absence of any dispute regarding the correctness of the assertion of the Board that there was hardly any demand at that point of time for allotment of plots.

28. The opinion of the High Court—that a renewal of the licence in dispute without following the procedure of auction is inconsistent with the principles laid down in 2G case (2012) 3 SCC 1—as an absolute proposition of law could be examined in an appropriate case. Such a scrutiny is not required for the present as the Board does not propose to renew the licences.

29. However, it is the submission of the Board that this Court need not examine the legality of the order under appeal for two reasons: (1) none of the appellants have either any indefeasible right of renewal or to continue the use of the respective plots allotted to them and the Board is entitled in law to revoke the licences at any time and debar the appellants from entering and using the plots in dispute; and (2) the Board proposes to revoke the licences and resume possession of the land (manually operated iron ore plots) in dispute for the purpose of developing the same and providing better facilities connected with the operations of the Board.

30. To examine the tenability of the above submissions, the following questions are required to be examined:

30.1 (i) Whether there is any indefeasible legal right in favour of any one of the appellants for renewal of the licence granted or continued use of plots allotted to them?

30.2 (ii) Irrespective of the answer to the above question, whether the Board is justified to terminate the allotments on the ground that it proposes to utilise the land in dispute for providing better amenities in connection with the obligations imposed upon the Board by law?

30.3 (iii) Whether this Court would be justified in law to decline granting relief in exercise of its jurisdiction under Article 136 of the Constitution of India either on the ground that the appellants have no indefeasible right of renewal or on the ground that irrespective of the rights of the appellants, the purpose sought to be achieved by the Board in proposing to resume the disputed lands is a public purpose which should override the interest of any of the appellants?

31. We therefore called upon the appellants to address us on the above questions.

32. We made it clear to the appellants that this Court will consider the defence, if any, of each of the appellants to the proposed termination of their licences on a new ground now set up by the respondent Board and invited them to make their submissions in that regard. Such suggestion was made in view of the possibility that if the appellants did not have any substantive defence against the proposed termination of the licences, interference with the order under appeal on the ground that there is a procedural lapse would only have the effect of protracting the litigation thereby enabling the appellants to continue occupation of public property and deprive the Board of higher revenue.

33. A preliminary objection is raised by the appellants for examination of the abovementioned questions. The appellants argued that neither of the two grounds, now relied upon by the respondent Board, are the grounds on which either the High Court directed the eviction of the appellants nor the quit notices issued by the respondent Board are founded. Therefore, this Court may not embark upon an examination of those questions as a court of first instance. According to the appellants, such an examination would take the appellants by surprise. Without prejudice to the preliminary objection, the learned counsel for the appellants also argued that they have a right of renewal of the licences and/or to continue in possession of the land in dispute.

34. In response to the preliminary objection, it is argued on behalf of the Board that this Court in exercise of its jurisdiction under Article 142 can undertake such an examination in an appropriate case to render complete justice in these batch of matters. Shri Nariman relied upon Pasupuleti Venkateswarlu v. Motor & General Traders (1975) 1 SCC 770 and Rameshwar v. Jot Ram (1976) 1 SCC 194, in support of this submission.

35. We reject the preliminary objection for the following reason: the jurisdiction under Article 136 is discretionary. It is settled by a catena of decisions of this Court that the jurisdiction under Article 136 is purely discretionary only to be exercised in order to ensure that injustice is not perpetuated. One of the important attributes of discretionary jurisdiction is that such jurisdiction is not exercised where it is likely to be a futile exercise i.e where the relief might be of no use to the applicant because it would still be open to the competent authority to achieve the result sought to be achieved by the disputed action leaving the defeat i.e by following the proper procedure, etc. p. 1367] Though the statement of the principle in the references in the footnote are made in the context of the jurisdiction of the Court to issue mandamus, the principle applies proprio vigore to the discretionary jurisdiction under Article 136 of the Constitution. Such being the principle of law, even if the present batch of appeals are to be allowed, as prayed for, on the ground that the order under challenge is made in breach of the rule of audi alteram partem, nothing in law prevents the Board from calling upon the appellants to desist from use of the land in dispute. Such a course of action is the declared intention of the Board. In such an event, the High Court and this Court would have to examine the questions framed above once again.

36. Therefore, accepting the preliminary objection and refusing to consider the ground newly raised by the Board would only “drive the parties to fresh litigation” rendering the present adjudication a futile exercise of the jurisdiction of this Court. The issue can be decided here and now to prevent a possible damage to the programme proposed to be undertaken by the Board and its “speedy accomplishment”.

37. The two decisions (see footnotes 15 and 16) relied upon by the Board are a clear authority for the proposition that this Court in either granting or declining to grant a relief in exercise of its jurisdiction under Article 136 can take note of developments either of fact or law which leave an impact on the rights and obligations of parties before the Court.

38. We shall first deal with the question of element of surprise, as it is the duty of this Court to scrupulously ensure the “rules of fairness to both sides”, in every case. Such duty is more rigorous in the instant case because of the fact that the respondent Board has come out with a new ground for denying the relief to the appellants, the legality of which we will have to consider as the court of first instance.

39. The Board seeks to debar the appellants from using the land in dispute. Such a decision of the Board rested on the order WP (C) No. 11785 of 2012 of the High Court under challenge. But during the pendency of the present proceedings, the Board altered the basis of its decision and decided to rest on the need of (i) the land in the dispute (covered by the manually operated plots) for providing better facilities, and (ii) mechanically operated plots for securing better/higher revenue. The legality of such proposed action of the Board would depend on: (a) the true character of the legal relationship between the appellants and the Board; (b) whether such relationship confers a right on the appellants to continue use of the disputed property either for eternity or for a definite period; (c) the legal authority of the Board to terminate such relationship; and (d) the procedure required to be followed for such termination.

40. To answer the above question we examine the nature of the legal rights flowing from such allotments. The plots in dispute are property vested in a public body (statutory corporation) performing important public functions. In the matter of creating rights and/or conferring privileges such a body is required to act in public interest under some rational policy. We have already noticed that the Board is bound by the policy directions given by the Government of India under Section 111 of the Act, and that the Government of India from time to time issued policy guidelines. In the Policy Guidelines issued in 2004, the following were the directives:

“(b) No sale or lease should be permitted. Land should be given on licence basis only. The licence may be up to a maximum period of 11 months and shall normally be in accordance with the schedule of rates (SoR)/rates approved by the competent authority. At the discretion of the Chairman, such licence may also be given by inviting tenders. The licence can be renewed at the expiry of the previous licence period. Each renewal of licence shall be treated as fresh licence.”

(emphasis supplied)

41. When it came to 2010, it is specifically laid down that the “licence can be renewed by the Chairman twice” subject to either the prior approval or subsequent ratification of the Board.

42. It can be seen from the policy guidelines that while the 2004 Policy forbids sale or lease of land, the 2010 Policy makes it the normal rule subject to exceptions. The 2004 Land Policy Guidelines enable the Board only to grant or renew a licence without any limitation on the number of renewals. The 2010 Policy Guidelines clearly restrict the authority of the Board to renew the licences for only two terms. The tenure of any licence is stipulated to be for a maximum period of 11 months. In either case, from the language of the policy guidelines it is clear that the policy only enables the Board to renew the licences granted but does not create any vested right in favour of the licensor. Even the letter of allotment makes it clear that what is granted is only a licence. (See footnote 7.) Therefore, we are of the opinion that the allotment of plots in dispute is only by way of a licence, as defined under Section 52 of the Easements Act, 1882.

43. As rightly pointed out by Shri Nariman, a licence by definition does not create any interest in the property AIR 1959 SC 1262. A licence only gives a right to use the immovable property of the grantor, to the grantee. There is no transfer of any interest in such property in favour of the grantee. On the other hand, under the Transfer of Property Act, an interest either limited or unlimited is created in favour of the transferee depending upon the nature of the transfer (sale, mortgage or lease, etc.). Under Section 60, a licence is revocable at the will of the grantor which is the essence of a licence. AIR 1965 SC 610 The Easements Act categorically declares that a licence can be revoked by the grantor except in the two contingencies specified under Sections 60(a) and (b). No such exceptions are pleaded or demonstrated by the appellants. Therefore, it must be held that none of the appellants have any indefeasible right of renewal either under the Easements Act or under the abovementioned policy.

44. However, that does not mean that a public body like the respondent Board can arbitrarily decline to renew a licence. It is well settled by a catena of decisions of this Court that no public body under our constitutional system is vested with such arbitrary powers, as was pointed out by this Court in Ramana Dayaram Shetty v. International Airport Authority of India (1979) 3 SCC 489, . If the Board decides not to renew any licence either with respect to a class of licences or with reference to a specific area of the land, normally such a decision cannot be said to be either irrational or arbitrary unless there are other compelling reasons to indicate that the decision has no rational purpose to be achieved.

45. In the counter filed by the respondent Board (in this batch of appeals), it is stated that the entire parcel of land which was allotted to the various appellants who are licensees of the manually operated plots (and others, who are not before us), from time to time by the Board in favour of iron ore exporters (except a small portion of the land allotted in favour of the Odisha Mining Development Corporation), is proposed to be utilised by the Board after terminating the licences of the appellants herein for creating certain modern operational facilities in connection with the activities of the Port. Such a decision cannot be said to be arbitrary or an irrational exercise of authority of a public body, having regard to the object sought to be achieved by the Board of creating modern amenities. The exception in favour of the Odisha Mining Development Corporation cannot, in our opinion, amount to discriminatory treatment of the appellants, since that Corporation is admittedly a State-owned corporation and forms a class by itself. Therefore, the proposed course of action by the Board to terminate neither infringes any legal right of the appellants nor amounts to an arbitrary exercise of the authority by the Board.

46. We also place on record that the appellants submitted that the concession agreements on BOT basis dated 1-7-2009 ended in litigation and therefore the proposed project of the Board is not likely to materialise. In response it is submitted by the Board that even if the parties with whom the BOT arrangement was entered into eventually default in their obligation, the Board would explore alternatives to proceed with the project but will not abandon the same.

47. We are left with the question whether this Court would be justified in the abovementioned circumstances in declining to interfere with the order under appeal and deny relief to the appellants.

48. The Board desires to utilise the parcel of land in dispute (in this batch of cases) for a purpose which is authorised by law and serves better the larger interests of the nation—including the interests of the exporters and importers such as the appellants. Setting aside the order under appeal on the ground of breach of natural justice would be a futile exercise as explained earlier. The respondent Board/licensor can always terminate/revoke the licences. In view of our conclusion that the proposed revocation of licences would not amount to an irrational or arbitrary decision, rejecting the new plea of the Board or any ground would only lead to protracted litigation consuming considerable time and delay in execution of the project, by the Board. Such a delay would not subserve public interest. This Court shall not contribute to such delay on the ground of some perceived procedural irregularity, particularly when the appellants have no substantive right. The appellants were given a wholesome opportunity by this Court to establish their legal right, to prevent the Board from terminating their licences.

49. The civil appeal arising out of SLP (C) No. 38013 of 2012 is filed by Auroglobal Comtrade (P) Ltd., which was the petitioner in WP (C) No. 11785 of 2012 in the High Court of Orissa. The appellant was allotted a plot by the Board pursuant to a process of tender in which the appellant became the successful bidder quoting an amount of Rs 3,06,29,759. A licence for the use of the plot for 11 months was granted by the respondent Board under a letter dated 1-8-2011, after collecting the abovementioned amount. The appellant made two representations in the months of April and June 2012 to the Board seeking a renewal of the licence. The Board again called upon the appellant to deposit Rs 3,06,29,759 for renewing the licence. Challenging the demand, the appellant approached the High Court seeking reliefs already noted earlier in the judgment (see para 13).

50. The writ petition was filed essentially on the ground that one of the tender conditions contained in para 5 of the tender notice dated 2-6-2011 is violative of Articles 14 and 19 of the Constitution of India, therefore void ab initio. Consequently, demand of the bid amount afresh for renewal of the licence is also illegal. Though it is not clearly spelt out in the writ petition, the legal basis of attack on para 5 of the tender notice is that while the licensees, who secured allotments prior to 2005, continued to pay a fixed licence fee of Rs 9 per square foot per month under the “scale of rates” fixed by the Tariff Authority created under Section 47-A of the Act, the appellant is compelled to pay substantially higher amount, apart from the amount fixed by the Tariff Authority. The size and use of the plot allotted to the appellant is similar to that of the allottees prior to 2005.

51. The above submission of the appellant is sought to be repelled by the Board on the principle that the appellant secured the licence pursuant to tender notice with eyes wide open and in full knowledge of the terms and conditions under which licences are offered. The petitioner enjoyed the benefit of the licence for a year (and still continues in occupation of the property pursuant to the interim orders of this Court, for about a year) and now the appellant cannot turn back and challenge the conditions subject to which the licence was granted to it. In support of the said submission, the Board relied upon the following judgments: Har Shankar v. Excise & Taxation Commr. (1975) 1 SCC 737, Sham Lal v. State of Punjab (1977) 1 SCC 336 and State of Haryana v. Jage Ram (1980) 3 SCC 599.

52. We reject the submission of the appellant for two reasons. Firstly, the appellant acquired the licence knowing fully well the terms and conditions subject to which the licence is offered by the Board. So they cannot take the benefit of the offer and renounce the corresponding obligation (approbate and reprobate). Secondly, the claim of the appellant that they are being discriminated against is required to be rejected since those licensees who are paying a lower “licence fee” had secured these licences at a point of time when there was no competition. The market conditions were different. Things or events seemingly similar and on a par need not always be so. There can be facets which distinguish. The present situation is one of them.

53. One of the grounds pleaded in the appeal and argued before us by Shri C.A Sundaram, learned Senior Counsel appearing for the appellant is that:

“… there is distinction between lease and licence and both are dealt with separately. Licence comes under Section 49(1)(d) i.e any other use. Section 49(3) of the Major Port Trusts Act says that the Board may lease any land at a rate higher than that provided under Section 49(1). Thus, only in respect of lease, the Port Trust can change a rate higher than the scale of rates approved by TAMP. Clause 6.1.1(a) of the Land Policy 2010 clearly states that licence can be granted by inviting tender but renewal will have to be under the scale of rates approved by TAMP.”

It is submitted by the learned counsel for the appellant that Section 49(1) authorises the collection of licence fees in accordance with the scale of rates framed by the Tariff Authority for the various uses (of the property of the Board) specified under clauses (a) to (d) of Section 49 sub-section (1). Section 49 sub-section (3) authorises the Board to allot plots either by following the procedure of auction or inviting tenders and demand amounts higher than those contemplated under sub-section (1). The learned counsel argued that having regard to the language of sub-section (3), once the Board resorts to the process of auction or inviting tenders, the Board can only allot a plot on lease but not a licence.

54. Though, the Port Trust sought to repel the submission on various grounds, we do not propose to examine those defences in extenso.

55. We reject the submission since we do not see any warrant for placing such restriction on the authority of the Board, from the language of Section 49 sub-section (3). The opening clause of sub-section (3):

“49. (3) Notwithstanding anything contained in sub-section (1), the Board may, by auction or by inviting tenders, lease….”

authorises the Board to lease its properties either by auction or by inviting tenders. There is no warrant to read into the language of the said sub-section a legislative intention that in every case where the Board undertakes the process of auction or inviting tenders, it is bound/obliged to grant a lease of its properties. The expression “the Board may” occurring in the said sub-section, to our mind indicates that the lease is the highest of rights that may be created on the properties, by the Board under the said provision. It does not eliminate the discretion of the Board to permit use of its properties by any arrangement which transfers a lesser or no interest (such as a licence) in the property.

56. On the above analysis, we see no merits in the claim of the appellant. For the same reason as given for dismissing the appeals, the appeal of the Auroglobal is also dismissed, as the plot allotted to this appellant is also required for the developmental project proposed to be undertaken by the respondent Board.

57. The civil appeal arising out of SLP (C) No. 28841 of 2012 is filed by Odisha Mining Corporation Ltd., one of the licensees of the respondent Board. This matter can be disposed of in view of a specific statement made at the Bar on behalf of the Board that the Board does not propose to terminate the licence of the appellant as the plot of land allotted to the appellant is not required for the purpose of its proposed developmental project. Accordingly, this appeal stands disposed of.

58. Coming to the seven mechanically operated iron ore plots, they were allotted on different dates, the details of which are as follows:

Sl. No. Plot Holder & SLP No. Initial allotment Renewals 1. Bagadiya Brothers SLP No. 28842 of 2012 (Manual Iron Ore plot holder) 1-8-2011 Last renewal up to 28-2-2013 2. Rungta Mines Ltd. SLP No. 27512 of 2012 4-6-2011 and 25-7-2005 Last renewed on 1-4-2012 up to 28-2-2013 3. M/s Core Minerals SLP No. 27511 of 2012 2001 and 2004 Last renewal granted in July 2012 up to 30-9-2012 4. Essel Mining and Industries Ltd. SLP No. 27516 of 2012 Allotment by various allotment orders from June 2001 to July 2005 Last renewal up to 30-9-2012 5. JSW Ispat Steel Ltd. SLP No. 26922 of 2012 13-2-2012 Last renewal up to 30-9-2012 6. Orissa Mining Corporation Ltd. SLP No. 28841 of 2012 16-5-1996, 4-4-1997 and 20-8-1997 7. Taurian Iron and Steel Ltd. SLP No. 32005 of 2012 2003 Last renewed up to 30-9-2012

Each one of them enjoyed the benefit of the allotment of plot by virtue of successive renewals. We have already taken note of the fact that under the 2004 Policy Guidelines the licences granted by the Port Trust could be renewed without any limitation on the number of renewals that could be granted. However, under the 2010 Policy, the number of renewals was restricted to two. From the material on record, it appears that each one of these appellants (mechanically operated plot licensees) enjoyed a number of renewals.

59. We see no reason to interfere with the decision of the Board to terminate the licences for the following reasons:

59.1 Firstly, a licence does not create any indefeasible legal right.

59.2 Secondly, we do not see any irrationality in the decision of the Board, even from the point of view of the fact that the Board is a public body (the State within the meaning of Article 12) and therefore, obliged to act rationally. The Board's decision to terminate the licences is consistent with the Policy Guidelines of 2010.

59.3 Thirdly, in view of the assertion of the Board in its additional affidavit dated 25-11-2013,

“… the existing iron ore traffic which is showing a growth rate of 159.56% during current financial year (up to October 2013) in comparison to the iron ore traffic handled during the same period of the previous financial year, it is submitted that non-availability of mechanical plots to the Paradeep Port Trust will entail huge financial loss to the Port which is a major port under the Government of India. This will also result in idling of the existing iron ore handling plant for which significant money has been spent and dedicated facilities have been created for efficient and effective handling of iron ore traffic. This will also result in diversion of iron ore traffic to nearby private ports which is already happening due to non-availability of mechanical plots to Paradeep Port Trust”,

we do not see any reason to doubt the said assertion.

60. Interfering with the notices of termination of licences in each one of these cases on the ground that the notices were initially based on a decision of the Orissa High Court to which these appellants were not parties, would not be in the larger public interest.

61. We have already made it clear earlier in this judgment that we propose to deal with these petitions as if they were petitions under Article 32 and permitted the appellants to place all the material which would be available to them in law in defence even if the impugned termination orders were not to be based on the decision of the High Court.

62. Except arguing that the decision of the Orissa High Court is in violation of the principles of natural justice, the appellants failed to place before this Court any material to establish that the decision of the Board to terminate their licences is otherwise violative of any of the substantive right. In the circumstances, we decline to interfere with the decision of the Board. All the appeals are, accordingly, dismissed.