- (1.) Facts leading to the filing of these writ petitions are intertwined. Therefore, both the writ petitions are disposed of by this common order.
(2.) W.P.No.41444 of 2002 2.1. The deponent of the affidavit is the Managing Director of the petitioner Company and he would state among other things that the petitioner Company is a Public Limited Company incorporated under the provisions of the Companies Act, 1956, with the main object of manufacture and marketing of Salt. The second respondent, namely the Tuticorin Port Trust is the owner of vast extent of land situated in Tuticorin and could not put the lands into beneficial use and the lands did not yield any return and hence, in the year 1943, it took a decision to lease out 300 acres of land in favour of the petitioner for manufacture of salt and it was a minor port at the relevant point of time. The second respondent, for that purpose, decided to lease out the said lands initially for a period of 20 years and accordingly, leased out the lands to an extent of 262.80 acres during the year 1943 in favour of one Shri Mannar Iyer for a period of 25 years and it was subsequently transferred in favour of the petitioner during the year 1946. The second respondent, which was a minor Port Trust at the relevant point of time, became a Port Trust Board on 01.04.1979 and the erstwhile minor Port merged with the new Port and a decision was taken to continue the lease agreement and it was extended upto 07.07.1993. 2.2. The Ministry of Surface Transport (Ports Wing), Government of India, vide communication dated 27.10.1994 had accorded permission to allot an area admeasuring to an extent of 262.80 acres in favour of the petitioner Company for production of salt on lease for a period of 20 years subject to the following terms and conditions and it is relevant to extract the same: (a) The lease shall be for a period of 20 years from the date of expirty of previous lease agreement and shall not be automatically renewable. (b) The lessee shall pay lease rent @ Rs.100/- per acre per annum or the scheduled rate for such lands which may be fixed by the Port from time to time, whichever is higher. (c) The lease rent shall be subject to an escalation @ 10 percent per annum (compoundable). (d) The lessee shall pay a premium equivalent to one year's lease rentals to the Tuticorin Port Trust. (e) The lessee shall deposit an amount equivalent to one year's rentals with Tuticorin Port Trust as refundable security deposit. (f) TPT shall have an option to revise the base of least rent every five years. (g) The lease shall be subject to lessee obtaining all necessary statutory clearances. The Port shall ensure this. (h) All plans for development of leased area shall be got approved from the TPT Board. (i) The area leased shall be used strictly for the purpose for which it is allotted. (j) The area leased shall not be transferred by the lessee to any third party either by way of sub-lease, rent or any other means. (k) The Port shall have a clause in the lease agreement that the land can be resumed at any time before the expiry of lease period if required by the Port for its own use by giving 3 months notice or at any time for not complying with the conditions of lease. And, all other usual terms and conditions. 2. The Port shall enter into the lease agreement with M/s.Tuticorin Salt & Marine Chemicals Limited, Tuticorin incorporating the above conditions and after getting it vetted by its Legal and Finance Departments and strictly adhering to the guidelines issued by this Ministry as per Letter No.PT-17011/55/87-PT dated 30th March, 1992. 3. A copy of the map showing the location of the land for which approval is granted is enclosed. 4.This issues with the concurrence of Finance Wing vide their U.C.No.535/FA(T)/94 dated 20.3.94. Accordingly, a fresh lease came into being for a period of 20 years, fixing the lease rent @ Rs.100/- per acre per annum subject to the above terms and conditions and the revision of lease rate was due on and from 08.07.1998. The second respondent Port Trust had constituted a Committee for revising the lease rent as per the Government guidelines and the said Committee, after obtaining the prevailing market rate of the lands, recommended the allotment to the petitioner and suggested an annual lease rent rate of Rs.5,040/- per acre per annum and it was placed before the Tariff Authority for Major Ports [TAMP]/first respondent, which is a statutory body constituted under Section 47A of the Major Ports Trusts Act, 1963, for their approval. 2.3. The lease came to an end on 07.07.2013 and insofar as the rates fixed by the first respondent/Tariff Authority for Major Ports is concerned, the petitioner company raised an objection pointing out among other things that as per the letter of the Revenue Divisional Officer, Tuticorin dated 07.12.2000 addressed to the Chief Engineer, Tuticorin Port Trust in respect of lands in Mullakaadu Part-I and Melavattan Part-II Village, the market value was fixed as Rs.42,000/- per acre and Rs.40,325/- per acre respectively and the yield of salt was fixed at Rs.800/- per bag in respect of Mullakaadu Part-I and there is no salt production in respect of Melavattan Part-II Village and the said determination was not based on documents and also did not state the source from which the said value was arrived at and the said official did not go through the formal exercise of collection of particulars of the value mentioned in the various sale deeds executed at the relevant point of time in respect of lands situate in a similar place of a similar nature of similar extent used for a similar purpose. 2.4. The Tuticorin Chamber of Commerce and Industry, vide letter dated 03.05.2001, had also pointed out the first respondent that the features of the Salt Industry were peculiar and also pointed out the repercussions from the consumers in the event of steep increase in lease rent, which may result in increase of salt price per acre. The petitioner also pointed out that the salt is a low value commodity and expecting a return of 12% on the market value of the lands least out for the production of salt would be illusory and the production of salt is a social object and the product is used by poor and rich alike and further pointed out that the Kandla Port as well as the Salt Department are charing @ Rs.52/- and Rs.65/- per acre per annum respectively and also pointed out that the Government of Tamil Nadu leased out 5000 acres of land to the Tamil Nadu Salt Corporation which is also a Government entity @ Rs.135/- per acre per annum and therefore, prayed for reduction and so also the Indian Salt Manufacture Association, in their representation dated 11.06.2001, to the first respondent. 2.5. The first respondent had convened a joint meeting on 16.07.2001 and all stakeholders including the petitioner had also participated and after considering the objections, the said authority had passed an order dated 27.08.2002 fixing the annual lease rent at Rs.2,016/- and applied the same retrospectively with effect from 08.07.1998 and it was also directed to be notified in the Government of India Gazette. The petitioner, challenging the legality of the said proceedings of the first respondent, has filed this writ petition. 2.6. The writ petition was admitted and an order of ad-interim stay was granted subject to the condition that the petitioner shall pay 50% of the lease rent as approved by the first respondent and accordingly, the said amount is being paid by the writ petitioner. The petitioner, aggrieved by the said conditional order of interim stay, had filed W.A.No.3941 of 2003, which was disposed of on 22.10.2007 with a direction directing the petitioner to pay @ Rs.900/- per acre for the past period from 08.07.1998 to 31.10.2007 and thereafter to pay at the rate of Rs.1,000/- per acre starting from 01.11.2007 and the petitioner is complying with the said order. 2.7. Mr.S.Gomathinayagam, learned Senior Counsel assisted by Mr.G.Hari Hara Arun Soma Sankar, learned counsel appearing for the petitioner made the following submissions: (1) The purported exercise of power by the first respondent would not come under the purview of Section 49 of the Major Port Trusts Act, 1963, but covered by Sections 33 and 34 of the said Act and therefore, the impugned proceedings based on the said exercise, is unsustainable. (2) The lease deed dated 02.06.1995 does not provide for fixation of rent by the first respondent and therefore, such a fixation resorted to during the currency of lease is contrary to law. (3) The fixation of lease is primarily based on the communication of the Revenue Divisional Officer, Tuticorin dated 07.12.2000 addressed to the Chief Engineer, Tuticorin Port Trust and the said letter is cryptic and it is nowhere stated as to how the market value of the land situated in Mullakaadu Part-I and Melavattan Part-II Villages per acre has been fixed and the revision of rates done by the first respondent is also contrary to law. (4) Though the first respondent has referred to the various objections raised by various stakeholders, has fixed the lease rent @ Rs.2016/- per acre based on mere surmises and conjectures, overlooking the fact of the lease rent fixed by Kandla Port as well as the Tamil Nadu Salt Corporation and also failed to assess the impact on salt production and the rates at which the salt to be sold. (5) The first respondent has also failed to take into consideration the peculiar nature of the salt industry, social impact on the revision of lease rent and therefore, the impugned order of the first respondent is liable to be interfered with and prayed for quashment of the same. 2.8. Mr.R.Yashod Varadan, learned Senior Counsel assisted by Mr.S.Yaswanth, learned counsel appearing for the second respondent has invited the attention of this Court to the counter affidavit and would submit that the lease deed dated 02.06.1995 was registered as Doc.No.220 of 1995 on the file of the Sub-Registrar Office-I, Tuticorin and the Clauses in the said document clearly indicate that the lease was renewed with effect from 08.07.1993 and the lease would expire on 07.07.2013 and the respondent has the option to revise the base least rent once in five years and accordingly, it has to be revised from 08.07.1998 and the basis for revision is in the policy guidelines for land and water front management communicated by the Government of India in terms of Section 49 r/w. 54 of the Major Port Trusts Act, 1963 and the first respondent is bound to adhere to the conditions prescribed by the Government in the letter dated 03.04.1995 and the petitioner subsequently executed another lease agreement on 02.06.1995 undertaking to adhere to the said conditions and it is not open to them to turn around and say something contrary to both parties. As the revision of base lease rent is to be done once in every five years and the revision was due on 08.07.1998 and in terms of policy guidelines for land and water front management issued by the Government of India, the second respondent has constituted a Committee under the Chairmanship of Chairman, Tuticorin Port Trust with representatives from the then Ministry of Surface Transport, State Revenue Authorities and officers of Tuticorin Port Trust, for fixing the revised lease rent from 08.07.1998 and the Committee also took a decision to obtain the guideline value of the salt lands in and around Tuticorin before fixing the revised lease rent for the land allotted to the petitioner and series of discussions took place and after taking into consideration all the relevant facts and circumstances and the principles followed by the Port to fix the lease rent at 12% p.a. on market value of land and 18% annual return on development cost and further taking note of the fact that the second respondent did not make any investment for developing the land allotted for salt pans, a decision has been taken to fix Rs.5040/- per acre as annual return on market value. 2.9. The learned Senior Counsel appearing for the second respondent would further submit that various stakeholders objected to fix such rate and once again a joint meeting was convened and after eliciting the views of the concerned persons, the rate was fixed at Rs.2,016/-per acre per annum from 08.07.1998 with annual escalation of 10% contemplated in the relevant lease agreement and the rate has been fixed following the normal procedure. The learned Senior Counsel appearing for the second respondent on the legal plea made on behalf of the petitioner would submit that the lands in question are lying inside the Port area and therefore, the first respondent, in exercise of powers under Section 49 of the Major Port Trusts Act, 1963, is the competent authority to fix the lease rent and accordingly, it has done so after eliciting the views/response from all stakeholders. The first respondent has also followed a very transparent procedure and though the original decision was to fix Rs.5,040/- per acre per annum, it was reduced to Rs.2,016/- per acre, which is almost 50% of the rate proposed by the second respondent. It is the further submission of the learned Senior Counsel appearing for the second respondent that in accordance with Clauses 6 and 13(xviii) of the agreement executed between the petitioner and the second respondent as lessor, it has the right to revise the basic lease rent every 5 years apart from the annual escalation at 10% (compoundable) specified in Clause 3 of the agreement and quinquennial revision was made based on the Government guidelines only and fixation of market value was done by the jurisdictional Revenue Divisional Officer and the lease rate was fixed on the basis of his proceedings and he is the competent authority attached to the Revenue Department of the State Government to fix the market value of the land and the petitioner, as on August 2003, was due and payable to a sum of Rs.29,76,039/- and prays for revision of lease rent. Lastly it is contended by the learned Senior Counsel appearing for the second respondent that since the petitioner is carrying on commercial activity, it has to face the fluctuations of business and the overall circumstances pointed out in the fixation of annual rent per acre @ Rs.2,016/- are perfectly in order and prays for dismissal of this writ petition. 2.10. Heard the submissions of Mr.T.S.Rajamohan, learned Additional Central Government Standing Counsel appearing for the first respondent also.
(3.) W.P.No.25104 of 2016 3.1. The Executive Director of the petitioner Company has sworn to the affidavit stating that the petitioner Company has paid the entire dues to the respondent and approached the second respondent on 25.04.2012 and requested renewal of lease for a further period of 30 years after the expiry of the current lease period and the second respondent has issued a letter dated 13.08.2013 directing the petitioner to execute the undertaking for a further period of 2 years from 07.07.2013 and the petitioner has also paid a sum of Rs.2,99,592/- in the form of Demand Draft towards the lease rent for the period from 08.07.2016 to 07.07.2017. However, the second respondent has sent a letter dated 15.06.2016 calling upon the petitioner to handover possession of the lands within 30 days from the date of receipt of the same and it was objected to by the petitioner with a request to regularize the lease for a further period of 20 years and a sum of Rs.3,02,220/- was also paid towards lease rent for the period from 08.07.2016 to 07.07.2017. However, the second respondent, without heeding to the request made by the petitioner for renewal, has issued the impugned tender notification in Hindu News Daily on 20.06.2016 fixing the tender schedule. Challenge the legality of the said Tender cum e-auction notice dated 20.06.2016, the petitioner has filed this writ petition. 3.2. Mr.S.Gomathinayagam, learned Senior Counsel assisted by Mr.G.Hari Hara Arum Soma Sankar, learned counsel appearing for the petitioner would submit that the petitioner is in possession and enjoyment of the lands in question from the year 1943 onwards and invested so far nearly Rs.45 crores by way of construction, investment in equipments, plants, by providing employment to 70 employees and also contributing towards Provident Fund. The learned Senior Counsel appearing for the petitioner has drawn the attention of this Court to the Clarifications issued on 17.07.2015 in respect of Policy Guidelines for Land Management by Major Ports, 2014 issued by the Government of India, Ministry of Shipping (Ports Wing), more particularly Clause 11.3 and would submit that as per Clause 11.3(b) if the land is not required by the Port for its own use, the Port should then check whether the land use is consistent with the land use plan and whether the lessees are not in default and thereafter, if it is so, the following procedure under Clause Nos.(c) to (k) to be followed and despite very many representations submitted about the long subsistence of the lease between the petitioner and the Port Trust, the impugned tender cum e-auction notice came to be issued with an oblique motive, only with a view to drive the petitioner out of the lands . It is the further submission of the learned Senior Counsel appearing for the petitioner that the adjacent lands belongs to Salt Corporation of India was also leased in favour of the petitioner, which have access through the lands, which are the subject matter of this writ petition and in fact, the Office of the Deputy Commissioner, Salt Corporation, Chennai also addressed a communication to the Salt Commissioner, Jaipur and suggested that the lands vested with the Tuticorin Port Trust used for salt manufacture by the petitioner could be considered for transfer to Salt Commissioner's Organization in lieu of salt lands transferred to Ennore Port at Chennai and therefore, requested the said official to get in touch with the second respondent to reconsider the decision of taking back the said lands, as they are having vast lands inside the port estate, lying vacant and in the light of the said recommendation by the one arm of the Government of India, another arm, namely the second respondent cannot take any contrary decision which adversely affect the salt production in general and so also the interest of the workmen employed in Salt Pans and also the interest of the petitioner Company. 3.3. Per contra, Mr.R.Yashod Varadan, learned Senior Counsel assisted by Mr.S.Yaswanth, learned counsel appearing for the respondents 2 and 3 would contend that the lease deed entered into between the petitioner and the second respondent did not provide for renewal and even as per the impugned tender notification, lands are not required by the Port for its own use, but it is interested in allotment of the same for the purpose of Salt Pans on 5 years lease basis and therefore, the petitioner cannot do otherwise. It is the further submission of the learned Senior Counsel appearing for the respondents 2 and 3 would submit that clarifications and amendments issued to the Policy Guidelines for Land Management by Major Ports, 2014 issued by the Government of India, Ministry of Shipping (Ports Wing) dated 17.07.2016 are scrupulously and strictly complied with and if the petitioner is interested in participating in the tender process, they may do so and their bid would be considered in proper perspective by taking into consideration of the fact that they are in possession of the lands in question for very many years in the capacity as lessee and therefore, prays for dismissal of this writ petition. 3.4. In response to the said submission, the learned Senior Counsel appearing for the petitioner would submit that for the purpose of establishing minor port, valuable lands have been taken possession and in lieu of the same only, possession of the lands in question were handed over for putting up salt pan and reiterated his submission that fixing the annual lease rent of Rs.2,016/- per acre as well as the issuance of tender cum e-auction are arbitrary and unreasonable and in violation of Article 19(1)(g) of the Constitution of India and also placed reliance upon the decisions in Jayantilal Dharamsi and Others v. Board of Trustees of Port of Bombay, 1991 2 BCR 283 and Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir and Another, 1980 AIR(SC) 1992.;