ESSAR BULK TERMINAL LIMITED & ANR. versus STATE OF GUJARAT & ORS.

Citation: [2018] 2 S.C.R. 335 · Decided: 22-02-2018 · Supreme Court of India · Bench: R.F. NARIMAN · Disposal: Dismissed

Judgment (excerpt)

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ESSAR BULK TERMINAL LIMITED & ANR.
v.
STATE OF GUJARAT & ORS.
(Civil Appeal No. 2406 of  2018)
FEBRUARY 22, 2018
[R. F. NARIMAN AND NAVIN SINHA, JJ.]
Indian Ports Act, 1908:
s.5 – Notification under – By State Government – For
expansion of port limits – Challenged by appellant-Company (who
was using a captive jetty) stating that the expansion would affect
the lands reclaimed or to be reclaimed by them – Petition dismissed
by High Court – On appeal, held: The Notification for expansion
of Port limits issued u/s. 5 was in public interest and hence was not
ultra vires s. 5 – The alteration/expansion of the limits of the Port
cannot be said to affect appellant-Company’s rights qua reclaimed
lands as the lands were reclaimed illegally i.e. without prior
permission under s.35(1) of Gujarat Maritime Board Act – In the
facts of the case the appellant-Company cannot be said to have
legitimate expectation – The land reclaimed by the appellant-
Company not only belonged to the State Government, but the same
also could be utilized by Maritime Board for any purpose – Therefore,
appellant-Company has no right to private property – Thus, the
Notification also does not affect any rights of the appellant-
Company to private property – Gujarat Maritime Board Act, 1981
– s.35(1) – Gujarat Infrastructure Development Act, 1999 – ss. 8, 9
and 10 – Doctrine of Legitimate expectation.
Gujarat Maritime Board Act, 1981:
s.35(1) – Interpretation of.
Dismissing the appeal, the Court
HELD: 1. It is not correct to say that if Section 35(1) of
Gujarat Maritime Board Act, 1981 were to be read with Section
35(2), it would be clear that permission for reclamation would
only be necessary if a private asset were to be created in the
hands of a private person. The asset to be created belonged only
[2018] 2  S.C.R. 335
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SUPREME COURT REPORTS
[2018]  2 S.C.R.
to the Government of Gujarat and it was for the Gujarat Maritime
Board (GMB) to grant permission to the Appellants to use the
same.  Section 35(1) is couched in negative language and does
not refer to private rights being created.  Section 35(2) cannot
be read so as to throw light on Section 35(1), as under Section
35(2), the GMB is only given a discretionary power to require a
person, who has acted in contravention of Section 35(1), to remove
the illegal erection.  The wide language of Section 35(1) cannot
be whittled down by Section 35(2), as the GMB may or may not
utilise the discretionary power granted to it under Section 35(2).
The plain language of Section 35(1) cannot be curtailed by reading
by inference, into sub-section (2), the fact that the GMB may, by
notice, require a person to remove an erection, only when it has
been made without previous permission, so as to create a private
asset in the hands of a private person.  The wide language of
Section 35(1) makes it clear that any reclamation within the limits
of the GMB cannot be carried out except with the previous
permission in writing of the GMB. It is clear, therefore, that
dredging to a depth of below 8 meters and reclamation of any
area to the south of the mangroves was done by the Appellants in
the teeth of Section 35(1) of the Gujarat Maritime Board Act.
[Para 16] [351-G-H; 352-A-D]
2. Despite appellant-Company’s production being at much
less than what was projected, the Appellants’ continued demands
would show that the real motive was to go beyond a captive jetty
and to develop a commercial port which cannot be done without
a global tender under the Gujarat Infrastructure Development
Act. [Para 17] [352-G]
3. As many as three MOUs were executed between the
Appellants, the GMB and the State Government, which MOUs
were valid only for a period of 12 months and were stated not to have
granted any right to the Appellants, who would incur all the expenditure
for the same. This being the case, it cannot said that any legitimate
expectation could be based on any of the aforesaid expired MOUs.
Therefore, no such expectation could possibly have arisen out of
the aforesaid MOUs or the correspondence between the
Appellants and the GMB. [Para 18] [352-H; 353-A-B]
4. It is evident from the correspondence between the
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Appellants and the GMB, that the Appellants were clearly told
that the land to be reclaimed by the Appellants would not only
belong to the Government of Gujarat, but also that the GMB
could utilize the aforesaid land for any purpose. What seems to
emerge on a reading of th

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