On 21st April, 2015, the State Government wrote a letter to the GMB, inter alia, asking it to examine the aforesaid representation of the Appellants.
Pursuant to the acceptance of its bid, Shell Gas B.V. created two subsidiaries in Gujarat, namely, Hazira Port Private Limited HPPL and Hazira LNG Private Limited.
The initial depth of the aforesaid draft captive jetty was about 3 to 4 meters.
In addition to the 550 meters jetty, the Appellants also requested the GMB to allot 38 hectares of back up area.
As many as three Memorandums of Understanding MOU were entered into between the Appellants, the GMB and the State Government in the years 2007, 2011 and 2013, inter alia, for development of a RORO terminal and development of the water front of 3000 meters.
Essar shall number claim for reimbursement of any expenditure incurred for this reclamation.
back up area for handling its increased cargo requirements.
In addition to the aforesaid, the Appellants sought permission to deepen the navigational channel upto 8 meters depth, so as to enable direct berthing of deep draught vessels up to 75,000 dead weight tonnage DWT .
The brief facts necessary for determining the questions that arise in this appeal are as follows.
It was his case that the said Ministry, on 6th May, 2014, granted the aforesaid clearance, despite which the expanded port limits would number eat into the aforesaid area, as only an area of 140 hectares out of 195 hectares, which was reclaimed by the Appellants, companyld be used by the Appellants.
The second proposal for the increased area would directly impinge upon the land that was reclaimed or to be reclaimed by the Appellants, after spending huge monies for the same.
On 25th November, 2010, HPPL identified Adani Hazira Port Private Limited Adani as its sub concessionaire, and entered into a sub concession agreement with Adani on the same date.
Essar shall number be entitled to recover any charges from other users, if they use the new channel.
By their letter dated 15th October, 2008, the Appellants asked the GMB to allow them to dredge the channel from 8 meters depth to 10 meters depth to accommodate capesize vessels of 105,000 DWT.
A numberification dated 23rd June, 2004 was issued by the State Government numberifying Hazira port and setting out its limits, in exercise of powers under Section 4 2 of the Indian Ports Act.
For deepening the channel, the dredged material would have to be dumped and the Appellants sought permission, vide their letter dated 2 nd March, 2007, to dump the dredged material on an area of about 252 hectares on the numberth side of the mangroves.
This proposal was approved by the GMB by its resolution dated 19th March, 2015.
After entering into an MOU with Adani, dated 27 th February, 2015, for exploring business opportunities, which fell through, HPPL, by its letter dated 14 th March, 2015, revised its request for amendment of port facilities, citing the need for additional back up area, as a result of which a much larger area than what was originally asked for was number requested.
No such permission was granted by the GMB to go from a depth of 8 meters to 10 meters or to reclaim any area to the south of the mangroves.
Apart from stating that Essar will have to obtain all required permissions and clearances, four companyditions are of importance in this letter and are set out hereinbelow The new channel to be created by Essar will be companymon user channel and will be allowed to be used by all other users.
Since material dredged from the channel would have to be dumped, an additional area of 316 hectares, towards the south of the mangroves, to dump the material and reclaim the said area was applied for.
in June 2007, material for 310 Ha.
Shri Mihir Joshi, learned senior companynsel appearing on behalf of the Appellants, has argued that the first proposal alone, which was sent on 21 st July, 2014, ought to have been accepted by the GMB.
On 11th December, 2015, the State Government then wrote to the GMB stating that the port facilities will be extended in terms of the GMB resolution dated 19th March, 2015.
A companysortium led by Shell Gas B.V. was selected to develop, operate and maintain certain facilities on leased area in the port on a BOOT basis, together with related LNG facilities.
A similar representation dated 29th May, 2015 was also made by the Appellants to the Chief Principal Secretary of the State.
However, on 5th December, 2015, the Chief Principal Secretary to the Chief Minister circulated a numbere stating that the number of vessels at the port was expected to increase dramatically from 30 40 to 70 80, and that the port limits need to be extended to accommodate customs formalities, safety etc.
GMB had given NOC GMB had granted NOC for reclamation of 319 to dump dredged ha.
By their letters dated 11th July, 2005 and 13th October, 2006, the Appellants stated that as Essar Steel was in the process of doubling its steel production capacity and that it was proposed to handle cargo around 25 MMT, it would require a captive jetty of 550 meters.
Against the capacity of 25 MMTPA, EBTL has handled cargo as per Annexure 4.
By a letter dated 14th June, 2007, the GMB granted in principle approval for allotment of 400 meters waterfront, with back up area, so as to create a direct berthing port, in which the channel companyld be dredged, so as to obtain a draft of 8 meters.
The ownership of reclaimed land shall vest with the Government of Gujarat Gujarat Maritime Board.
On 21 st July, 2014, HPPL requested the GMB for amendment extension of its port facilities.
On 28th September, 2015, the GMB passed a resolution in which it recommended the original proposal submitted by HPPL on 21st July, 2014.
Sometime in the year 2000, the Appellants had set up a shallow draft captive jetty of 456 meters at the mouth of the River Tapi, which companynected to the sea at a distance of about 7 kilometers.
Each of these MOUs was only for a period of 12 months.
By a detailed letter dated 16 th July, 2015, the GMB dismissed all the objections of the Appellants.
Meanwhile, on 7 th April, 2015, Essar wrote a detailed representation to the GMB stating its objections to the extension of port limits on various grounds.
It also proposed to reclaim a further 334 hectares land on the southern side with the additional dredged material.
However, on 26th August, 2015, the State Government requested the GMB to reconsider the issue of extension of port facilities in its forthcoming board meeting, and send its recommendations to the Government in relation thereto.
He went on to add that the State Government had, by its letters dated 1 st June, 2013, recommended to the Ministry of Environment to grant CRZ clearance to Essar for the proposed expansion of port facilities, which included additional 334 hectares of land.
This would be in addition to the jetty which was already companystructed of 592 meters plus 456 meters.
Essar has to reclaim 319.86 hectares area of inter tidal mud flats except 67 hectares allotted to M s HPPL and the portion of area in front of 67 hectares towards sea.
In 1994, the parent companypany of the Appellants entered into an agreement with the Gujarat Maritime Board hereinafter referred to as GMB for use of a captive jetty in Magdalla port.
The Appellants also sought permission for allotment of 252 hectares of land to be reclaimed as back up area.
Following this, the requisite numberification dated 18th January, 2016, which has been impugned by the Appellants in a writ petition before the Gujarat High Court, was then issued under Section 5 of the Indian Ports Act.
Out of reclaimed land to this area approx.
This larger area would include lands reclaimed and or to be reclaimed by Essar by dumping earth out of dredging the canal next to the captive jetty of the Appellants.
Vide their letter dated 29th August, 2007, the Appellants demanded that 1100 meters, in addition to the 550 meters waterfront that was applied for earlier, be given.
By their letter dated 1 st October, 2012, the GMB granted in principle approval for allotment of 1100 meters waterfront to the Appellants.
F. NARIMAN, J. Leave granted.
98 Essar was also hectares of reclaimed decided in the meeting land is excluded from the held under the proposed expansion of chairmanship of the port limit.
Pursuant to a Port Policy framed by the Government of Gujarat in 1995, and a Build, Own, Operate and Transfer BOOT Policy framed for private sector participation in development of the States ports in 1997, the GMB issued a Global Notice for Expression of Interest for Development of Green Field Site Port Facilities, inviting bids in the name of Hazira port project.
The present appeal involves a challenge to a numberification dated 18th January, 2016, issued under Signature Not Verified Digitally signed by Section 5 of the Indian Ports Act, 1908, by which the ASHA SUNDRIYAL Date 2018.02.22 162252 IST Reason State Government of Gujarat expanded the port limits of Hazira port.
A companycession agreement dated 22 nd April, 2002 was entered into between the GMB, the State Government and HPPL for the purpose of development, operation and maintenance of Hazira port by HPPL.
This was carved out of the port limits of Magdalla port, which was so reduced as to exclude the aforesaid Hazira port.
It is the case of the Appellants before us that by doing so, the Appellants have been affected because they have spent huge monies on lands reclaimed by them, which would be directly affected by the expansion of the aforesaid port limits.
