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IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 22.07.2008
Coram :
THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN
and
THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJA
Writ Appeal No.1000 of 2007 and
Writ Petitions Nos.25331 and 27071 of 2007
Shree Maruthi Marine Industries Ltd.,
'LAVANYA' Nemili Road,
Kanchipuram District, Appellant in the WA
Thiruporur 603 110, Tamilnadu, & Petitioner in WP.
rep. by its Executive Director No.25331 of 2007 &
Petitioner 1 in WP
No.27071 of 2007
T.G.Venkatesan,
Sree Maruthi Marine Industries Ltd.,
by its Shareholder,
Old No.100, New No.74,
Greenways Road Extension, Petitioner 2 in WP
Abiramapuram, Chennai 18. No.27071 of 2007
v.
1. The State of Tamilnadu, represented
by its Secretary to Government,
Revenue Department, Fort St. George,
Chennai 9, Tamilnadu.
2. The Special Commissioner and Commissioner
for Land Administration Department,
Government of Tamilnadu, Ezhilagam,
Chepauk, Chennai 5, Tamilnadu.
3. The District Collector, Kanchipuram District,
Kanchipuram, Tamilnadu.
4. The Tahsildar, Chengalpattu Taluk,
Kanchipuram district, Kanchipuram, Respondents in WA
Tamilnadu. and writ petitions
Writ Appeal filed against the interim order passed by the learned single Judge in M.P. 1 of 2007 in Writ Petition No.25331 of 2007 dated 26.07.2007.
Writ Petition No.25331 of 2007 is filed for issuance of writ of mandamus directing the first respondent for renewing the lease of subject land admeasuring 3611.69 acres situated in survey No.171 in Thiruvidanthai village measuring 50.00 acres, in survey No.325 Vada Nemili village measuring 69.56 acres in survey No.210/49A1 in Nemini measuring 789.25 acres, in S. No.68/1 in Krishnankaranai measuring an extent of 291/06 acres, in S.No.250/1A1 Pattipulam measuring 760.68 acres in S.No.242/1, 243 Kalavakkam measuring 168.95 acres, in S.No.180, Thiruporur measuring 410.58 acres, in S. No.370 Thandalam measuring 101.99 acres in S. No.154/1 Salavankuppam measuring 359.30 acres and in S.No.120/1, 244/5, 271, 272, 296/1, 299/5, 300/2 and 300/3 Palayanoor villages measuring an extent of 610.32 acres for another 20 years from today, in Chengalpattu taluk, Kancheepuram District.
Writ Petition No.27071 of 2007 is filed for issuance of writ of certiorarified mandamus calling for the records relating to G.O. Ms. No.410 Revenue Department dated 31.07.2007 and quash the same and direct the respondent to renew the lease in favour of the petitioner in respect of lands admeasuring 3611.69 acres situated in survey No.171 in Thiruvidanthai village measuring 50.00 acres, in survey No.325 Vada Nemili village measuring 69.56 acres in survey No.210/49A1 in Nemini measuring 789.25 acres, in S. No.68/1 in Krishnankaranai measuring an extent of 291/06 acres, in S.No.250/1A1 Pattipulam measuring 760.68 acres in S.No.242/1, 243 Kalavakkam measuring 168.95 acres, in S.No.180, Thiruporur measuring 410.58 acres, in S. No.370 Thandalam measuring 101.99 acres in S. No.154/1 Salavankuppam measuring 359.30 acres and in S.No.120/1, 244/5, 271, 272, 296/1, 299/5, 300/2 and 300/3 Palayanoor villages measuring an extent of 610.32 acres for another 20 years from today, in Chengalpattu taluk, Kancheepuram District.
For appellant/
petitioners : Mr.AL.Somayaji, Senior Counsel
for Mr.V.Perumal
For respondents : Mr.G.Masilamani,
Advocate General
for Mr.K.Balasubramanian,
Special Government Pleader
JUDGMENT
K.RAVIRAJA PANDIAN, J.
The writ appeal is filed against the interim order dated 26.07.2007 made in M.P. No.1 of 2007 in writ petition No.25331 of 2007 directing the parties to maintain status quo as on the date of passing the order for a period of one week with the clarification that the said order would not preclude the respondent from taking any decision and passing orders on the renewal application. In that writ petition No.25331 of 2007, the petitioner sought for renewal of the lease granted to it on the ground that as per G.O. Ms. No.1106 dated 13.06.1988 and 810 dated 30.05.1991 the petitioner is entitled to automatic renewal of lease as a matter of right.
2. In obedience of the said interim order, the Government passed orders in G.O. Ms. No.410 Revenue Department dated 31.07.2007, rejecting the request of the appellant for renewal of the lease. The correctness of the said order is challenged in writ petition No.27071 of 2007 praying to quash the same and for a direction to the Government as prayed for in W.P.No.25331 of 2007. The appeal and the writ petitions are taken together as they arise out of same cause of action and disposed of by this common order.
3. By the order of rejection of renewal dated 31.07.2007, writ petition No.25331 of 2007 and the writ appeal No.1000 of 2007 filed against the interim order passed in that writ petition have become virtually infructuous. Hence, writ petition No.27071 of 2007 alone is taken up for consideration.
4. The material facts which are necessary for the disposal of the writ petition No.27071 of 2007 are :
The respondent Government by G.O. Ms. No.7355 Revenue dated 13.12.1973 principally agreed to grant lease over an extent of 4336.89 acres of land lying between Thaiyur and Mahabalipuram villages in Chengalpattu Taluk and district in favour of the petitioner for production/manufacture of salt and permitted the petitioner to enter upon the land, but subject to the terms to be stipulated in the order to be passed for the grant. Pursuant to the said G.O., the petitioner took possession of the land on 18.03.1974. Subsequently, by G.O. Ms. No.1077 Revenue Department dated 22.06.1982, orders were issued granting lease over an extent of 3611.69 acres of land in the villages for a period of 25 years from the date of taking over possession of the land and necessary lease deed has been executed on 08.11.1984. Both the Government Order dated 22.06.1982 and the lease deed dated 08.11.1984 contains various stipulations and conditions for the petitioner to observe for the purpose of grant.
5. Prior to the expiry of the lease period by 17.03.1999, the petitioner by its letter dated 17.06.1998 requested for renewal of the lease. Various authorities made recommendations to the first respondent for renewal of the lease in favour of the petitioner, but the request was rejected by the respondent by the impugned G.O. The correctness of the said order is now put in issue.
6. Mr.A.L.Somayaji, learned senior counsel appearing for the petitioner contended that the reasons stated in the impugned Government Order dated 31.07.2007 for rejection of the renewal are not based on any materials, rather the relevant materials are not taken into consideration. He further contended that no pre decisional notice was given to the petitioner to explain their case. The impugned order is not only violative of principles of natural justice, but also hit by the principle of promissory estoppel, and the doctrine of legitimate expectation. The petitioner is protected to be in possession of the land as no notice under section 106 and 116 of the Transfer of Property Act was issued. The violation of condition stated in the impugned order are known to the authorities even prior to the date of G.O.Ms.No.1077 dated 22.06.1982 and the agreement dated 08.11.1984 as such cannot be put against the petitioner. The subject land cannot be made use for any other purpose than for the purpose of salt manufacturing as is evident from the letters of lower authorities. The satellite town proposed to be established by the Government has been dropped. The Collector of Chengalpattu, by his proceedings dated 26.03.2001 recommended for the renewal. The letter of the Zonal Deputy Tahsildar dated 21.02.2002 is also in favour of the petitioner. The District Collector, again, in his letter dated ...05.2002 has recommended for the renewal. Again by proceedings dated 10.02.2003, the District Collector made it clear that the petitioner is using the land aggregating to an extent of 3343.70 acres for salt manufacturing. The highest authority the Commissioner of Land Administration by his letter dated 22.09.2004 recommended to the Government to renew the lease in favour of the petitioner. Again the Land Commissioner by proceedings dated 13.07.2006 recommended for renewal in favour of the petitioner. The Superintendent of Salt, Chennai Circle has also, by his letter dated 13.05.2008, recommended in favour of the petitioner. Further, the Pollution Control Board, by its letter dated 27.09.2005, consented for renewal in favour of the petitioner. The District Environmental Engineer, by his proceedings, dated 09.10.2007, stated that the Pollution Control Board has granted consent letter to the petitioner. All these recommendations have not been taken into consideration while passing the impugned order.
7. The learned senior counsel by relying on G.O. Ms. No.1106 Revenue (D1) Department dated 13.06.1988, contended that the petitioner is entitled to automatic renewal of 12 years and also relied on G.O. Ms. No.810 dated 30.05.1991 to contend that the petitioner is entitled for 20 years of lease period with a same period of renewal. He further contended that the very same G.Os., has been applied in respect of two other companies, and on 06.06.2008 renewal has been granted.
8. Per contra Mr.G.Masilamani, learned Advocate General appearing for the respondents submitted that the writ petition filed by the Managing Director is not maintainable as he was not so authorised by the Board. He further submitted that there is no dispute that the lease in favour of the petitioner expired as early as on 17.03.1999. Even after the lapse of the lease period, the petitioner continued to be in possession, which is quite contrary to the G.O. 1077. Under the G.Os., no right has been reserved in favour of the petitioner for renewal of the lease, much less for being informed about the reasons for rejection of the renewal of the lease, in the sense, no order is required to be passed on the renewal application filed by the petitioner. When there is no duty either statutory or otherwise, cast upon the respondent for granting renewal of lease or for informing the reasons for rejection, the writ petition is not maintainable. The credibility of the materials relied on by the petitioner has not been proved. The lease was granted under the Government Grants Act and thus the provisions of the Transfer of Property Act cannot be made applicable to the case on hand. Neither principle of promissory estoppel nor the legitimate expectation is applicable to this case. During the currency of the lease period, the petitioner has violated/infringed the lease conditions, and for that purpose, two show cause notices dated 16.06.1998 and 11.10.2001 were issued and in the mean time, as the lease period expired on 17.03.1999, no further action was taken on the reply to the show cause notice. As the petitioner filed writ petition, and obtained an order of status quo, the respondent was constrained to pass the impugned order in public interest and other reasons. The violations committed by the petitioner has also been stated therein. Hence, the order impugned need not be quashed.
9. We heard the learned counsel on either side and perused the materials available on record.
10. From the aforesaid factual matrix, the issues to be decided are :
(1) Whether the writ petition is maintainable?
(2) Whether the petitioner is entitled to a renewal of lease as prayed for in this writ petition?
(3) Whether the impugned order is liable to be set aside for any of the reasons advanced by the petitioner?
Point No.1:
11. It is contended by the learned Advocate General that the writ petition is not maintainable as the same has been filed without any authority. Under Regulation 28(g) of the Articles of Association of the petitioner, the Board of Directors of the company should jointly authorise the filing of any legal proceedings by the petitioner. The institution of the writ petition is without the knowledge of the Board of directors of the company. However, it is on record that ex post facto consent has been obtained by placing the matter before the Annual General Meeting held on 14.09.2007. Apart from that, the issue has reached the Company Law Board at the instance of 33% shareholders TIDCO in C.P. No.72 of 2007. The Company Law Board by a consent order dated 06.12.2007 passed an order directing the parties not to act in any way prejudicial to the affairs of the company pending litigation before the High Court of Madras. Hence, in view of the order by the appropriate authority, the Company Law Board, which has seized of the matter, we are of the view that the petitioner can maintain the present writ petition.
Point No.2: (A) Terms of G.O.Ms.No.1077 dated 22.6.1982 and agreement dated 8.11.1984:
12. There is no dispute about the fact that the lease granted in favour of the petitioner for 25 years has expired on 17.03.1999. The petitioner, by his letter dated 17.06.1998 requested for renewal of the lease of land for a further period of 25 years from 18.03.1999.
13. The said application finds place in page No.138 of volume I of the typed set of papers, which read as follows :
SMMIL/LL/98-99 17th June 1998 The Secretary to Government, Revenue Department, Government of Tamilnadu, Chennai 600 009. Dear Sir, Sub : Lease Lands Chengalpattu Taluk and Chengalpattu District Lands between Thaiyur and Mahabalipuram village - 3611.69 acres in favour of Maruthi Crystal Salt company limited (now known as Sree Maruthi Marine Industries Limited) renewal of Lease Deed for 25 years. Ref : 1. G.O. Ms. No.7355 dated 13.12.1973. 2. G.O. Ms. No.1077 dated 22.06.1982. We wish to bring to your kind notice that the existing Lease agreement with the Government of Tamil Nadu for a period of 25 years effective 18.03.1974 expires on 17.03.1999. We manufacture Industrial Grade salt utilising the lease land. We wish to renew the lease for a further period of 25 years from 18.03.1999 and we hereby submit our request for the same by this letter. For your ready reference, we enclose a xerox copy of the existing Lease Agreement dated 08.11.1984 (Lease with effect from 18.31974). We are at your disposal for any information or clarification that you may require on the subject. Thanking you, Yours faithfully, for SREE MARUTHI MARINE INDUSTRIES LTD. T.RAMASAMY, DIRECTOR cc. The Collector, Kancheepuram District, Kancheepuram. cc. The TIDCO, 19A, Rukmani Lakshmipathi Salai, Egmore, Chennai.
On a perusal of the letter it is very clear that it is a very formal letter for renewal. There is no reference about its entitlement of renewal with reference to G.O. Ms. No.1077 dated 22.06.1982 or the agreement entered into by the petitioner or the G.Os. Nos.1066 and 810 above referred to.
14. Either in the G.O. by which grant has been made by the Government in favour of the petitioner or in the agreement entered into between the parties nothing is spelt out about the renewal. On the contrary, there is a positive condition/stipulation in the agreement that the land should be handed over to the Government on expiry of lease. The relevant clauses of the agreement read as under :
"17. Whenever the lease is cancelled or allowed to end, the lessee should handover the land to the Government fit for the above condition.
18. .....
19. .....
"In case of emergency the Government or revenue Department (Govt may decide which is emergency situation) can cancel the lease without notice. The lessee can also give six months notice to the collector and get the lease terminated. But if the lessee has violated any lease condition before, the right of taking action against him, will not be affected. When the lease is cancelled or allowed to end and the lessee is not able to enjoy the buildings or improvements made in the land, he will not be compensated for such loss. When lease is cancelled or allowed to end in such a manner or cancelled, the lessee should remove all the constructions or infrastructures within the time given by the Government or District Collector."
15. It is a private contract between the petitioner and the first respondent and both the parties are bound by the terms of the contract. In the absence of any right of renewal or even an indication to the effect, the petitioner cannot claim renewal as a matter of right. From this, it is clear that the petitioner by entering into an agreement, had agreed to hand-over possession of the land by the end of the lease period.
(B) G.O.Ms.No.1106 dated 13.6.1988 and 810 dated 30.5.1991:
16. Now, let us discuss the Government Orders on which reliance was made by the petitioner for grant of renewal. By G.O. Ms. No.1106 dated 13.06.1988, proposal for lease of Government land for 12 years period was considered to be adequate for the investors to recover the investments made. The relevant portion of that G.O., paragraph 4 read as under :
"4. The Government have examined all the aspects very carefully. It is considered that the proposal of 12 years period of lease would be adequate for the investors to recover the investments made. If the lessees abide by all the conditions of lease and carried on the industry profitably, they could apply for renewal of the lease for a further period of 12 years, which would be sanctioned automatically on the merits of the individual cases. The Government, therefore, direct that the period of lease in respect of State Government lands leased out for manufacture of salt shall be 12 (twelve) years in all the cases of such lease uniformly and that the lease rent shall be revised once in three years on the basis of the then prevailing market value of land."
(bold supplied)
17. The said paragraph 4 contains two parts. The first part spelt out the factors/proposal taken into consideration and the second part spelt out the ultimate decision of the Government about period of lease. In the first part, the Government has considered the proposal that lease for a period of 12 years would be adequate for the investors to recover the investments made and it also considered that if the lessees abide by the conditions of lease and carry on the industry profitably, they could apply for renewal of the lease for a further period of 12 years, which would be be sanctioned on the merits of the case. After observing so, in the second part, the Government directed that the period of lease in respect of the State Government lands leased out for manufacture of salt would be 12 years in all cases of such lease uniformly. So, what was directed by the Government under the said G.O., was fixing the lease period uniformly to 12 years. There is no direction about the automatic renewal for a further period of twelve years. If the intention of the Government is to grant renewal of lease in addition to fixing the lease period at 12 years, the wording of the G.O., would be that -- the Government, therefore, direct that the period of lease in respect of State Government lands leased out for manufacture of salt shall be 12 (twelve) years in all the cases of such lease uniformly and that shall be renewed for a further period of 12 years. But there is no such direction about the renewal in the second part.
18. Paragraph 4 of the G.O. in 810 dated 30.05.1991 is also a pointer to indicate or explain that what was ordered in the earlier G.O.Ms.No.1106 dated 13.6.1988 was fixing of lease period to twelve years only and no order was passed regarding renewal. For the purpose of convenience, that portion of the G.O. is also extracted below :
"4. The Government after having examined all the aspects very carefully, considered that the proposal of 12 years period of lease would be adequate for the investors to recover the investments made. If the lessees abide by all the conditions of lease and carried on the industry profitably, they could apply for renewal of the lease for a further period of 12 years, which would be sanctioned automatically on the merits of the individual cases. As such in the Government order first read above (G.O.1106) orders were issued fixing the uniform lease period for 12 years for salt land."
So, the purport of the Government Orders is amply clear, in the sense that by the G.Os. only the period of lease was fixed as 12 years for salt land and there was no whisper about the renewal as contended by the learned senior counsel for the petitioner.
19. The G.O.Ms. No.810 is also to the same effect. The relevant paragraph in paragraph 6 read as under :
"After having examined the request of the Vedaranyam small scale salt producers Federation carefully, revise and refix the present uniform lease period for Government lands for salt cultivation from existing 12 years to 20 years subject to the revision of lease rent (upward) from time to time."
There is absolutely nothing in the G.O. about the renewal of the lease. The original period of lease fixed for 12 years has been modified as 20 years. Even this G.O., does not further the case of the petitioner as the lease period enjoyed by the petitioner is 25 years, more than the period fixed in the G.O.
20. The Government Orders referred to above are retrospective in nature. The retrospectively could be inferred from the words employed 'leased out' in the second part of paragraph 4 in G.O.Ms.No.1106 dated 13.06.1988. If so construed, even the lease, which has been already granted in favour of the petitioner, has to be restricted to 12 years as per G.O.Ms.No.1106 dated 13.06.2008 and 20 years as per G.O.Ms.No.810 dated 30.5.1991. We are of the view that we need not delve deep into the matter, because as on date of G.O.Ms.No.1106 and as on 17.3.1999 the petitioner enjoyed the lease for more than the period stated therein. Hence, the contention that the petitioner is entitled for renewal as of right by virtue of the above said two G.Os., is to be rejected.
(C) Is the respondent obligated to consider and pass orders on the renewal application?
21. We have already considered G.O.Ms. No.1077 under which lease was granted in favour of the petitioner and the agreement entered on 08.11.1984 and held that there is no provision or condition or covenant contained therein entitling the petitioner for applying for renewal of the lease. The parties are bound by the terms and conditions contained therein. In the absence of any right to have the lease renewed, we are of the view that there is no obligation cast upon the respondents to pass orders on the renewal application. It is an admitted position that the lease stood expired on 17.03.1999. The relationship between the parties as landlord and tenant (lessor and lessee) came to an end on that date. The continued possession of the petitioner thereafter could only be regarded as possession by trespass. In identical set of facts, the Supreme Court in the case of Muralidhar Jalan v. State of Meghalaya (1997) 5 SCC 480 has held in favour of the Government. In view of the same, the contention is rejected.
(D) Violaiton of Natural Justice No pre-decisional hearing:
22. In order to bring home the contentions, the petitioner relied on the decisions of the apex Court in the case of Maneka Gandhi v. Union of India (1978 (1) SCC 248 and Katuri Lal v. State of Jammu and Kashmir, (1980) 4 SCC 1. There cannot be any second opinion about the proposition of law enunciated by the Supreme Court in those decisions to the effect that if by an order of public authority, the right of the person is to be affected, then that person must be given an opportunity of being heard before passing the order.
23. But, here, we have already come to the conclusion that the petitioner has no right whatsoever either statutory or contractual to have the period of lease extended by way of renewal automatically. In the absence of any such right, the petitioner cannot contend that the order impugned is passed without notice to him and it has affected his right. The order of rejection was an invited order by the act of the petitioner by filing a writ petition for mandamus and getting an order of status quo with an observation that the respondent may pass orders on the renewal application. Hence, the invited order cannot be regarded as one interfering with some non existing right and as such the objection of violation of principles of natural justice is rejected.
24. The petitioner contended that the impugned order has to be tested with the reasons given therein and not by any supporting reason not stated therein by relying on the decision of the Supreme Court in the case of Mohinder Singh Gill reported in (1978) 1 SCC 405.
25. The main reasons given in the impugned order are the larger interest of the public, for the use of the land for development of Information Technology sector, for extension of metropolitan city and to protect the environment. To rebut the reason, the petitioner relied on a file note of the District Collector dated 24.08.2006, wherein it is stated that the proposal of the Government to form a satellite town was dropped. We are at a loss to understand as to how the petitioner could lay his hands on a file note, a xerox copy of which is annexed at page No.289 of the typed set of papers. If at all the petitioner has applied for a copy under the Right to Information Act, only a copy of the order would have been furnished to him, but what is annexed at page 289 is a xerox copy of the manuscript file note duly signed by all the authorities, right from the Head Assistant to the District Collector. Even then, the file note would not advance the case of the petitioner, because the proposal for setting up of the satellite town was not made in the area under dispute, but in some other area, and has been dropped due to the protest made by the political parties as well as the villagers on the sole and solitary ground that the Government proposed to acquire the fertile agricultural lands for the formation of the satellite town. That cannot be lost sight of. The impugned order only says that the lands are required for the extension of the metropolitan city. We cannot lose sight of the fact that the Chennai metropolitan city is already extended to almost part of the area of Chengalpattu District including the area under consideration. Hence, this contention is also rejected.
26. The reliance of another inter departmental document dated 13.04.2007, from the Senior Project Manager of SIPCOT to the General Manager of SIPCOT, in which the Project Manager expressing his opinion that the land under consideration would not be suitable for Information Technology Industry and could be suitable for salt and marine based industries, cannot have an over-riding effect of the policy decision of the Government to keep the land to protect the environmental degradation and for the purpose of extension of the Chennai Metropolitan area.
27. The petitioner also relied on the letter of the Collector of Chengalpattu dated 26.03.2001 to contend that the Revenue Divisional Officer and the District Revenue Officer of Chengalpattu have inspected the site and recommended for the renewal of the lease. It is obvious from the letter that such recommendation was made as there was no objection from the villagers for using the Government land for manufacture of salt. The learned senior counsel also took us through a certificate issued by the Zonal Deputy Tahsildar, Guduvancheri dated 21.02.2002 wherein it is stated that the original lease agreement of the petitioner expired on 31.03.1999 and they have applied for renewal. The request is under progress. The lease will be renewed in due course. In the interim period, the company is in possession of the land and carrying out operations as per the usual practice. We are of the view that there is nothing in favour of the petitioner in that letter except conveying the factual position.
28. Thus, none of the documents relied upon by the petitioner advances the case of the petitioner for automatic renewal. We are also having some doubt, in our mind about the genuineness of the recommendations of the RDO and DRO which could be gathered from the letter of the District Collector dated ...05.2002, which is found at page 176 of the typed set of papers. In that letter, it is stated that, "6. The Revenue Divisional Officer, Chengalpattu after an inspection of the site has reported that only 267.99 acres out of 3611.69 acres leased out to the company are being used for aqua culture.
7. The Revenue Divisional Officer, Chengalpattu has also reported that some miscreants are doing aquaculture on some of the fields leased out at Thirukkazhukundram Taluk for which the company is in no way responsible. He also has reported that the company has also addressed for eviction of encroachers on the leased out land at Thirukkazhukundram Taluk.
29. We are not able to accept that the report of the RDO Chengalpattu is stating the correct position. We are of the view that the RDO has taken up the cause of the petitioner shifting the burden to some other person, when it is the duty of the petitioner to use the land for the purpose for which it was given. Moreover, it is unbelievable that such large area of 300 acre are used by some person without the knowledge of the petitioner, that too, for the purpose of shrimp cultivation which would take more than six months for getting one harvest, and requires several infrastructures. Interestingly, in reply dated 16.6.1998 to the show cause notice, the petitioner itself admitted the violation as follows:
"...... We had written to the District Collector as early as February 7, 1994 seeking permission for use of the leasehold land for Aqua culture development also..... We have again sent a letter on March 26, 1994 to the District Collector on the subject of our going in for a shrimp crops as a measure of diversification. This has followed by further correspondence with the District Collector on July 30, 1994 and August 19, 1994 ... Vide our letter of 22nd November 1994, we have referred to the Inspection visit of the DRO and also furnished the details of the survey numbers etc., and for the extent for which permission has been sought for by us for aqua culture development."
30. On the face of above admission, the contra reason stated by the lower authorities including R.D.O.,and D.R.O., are against the true state of affairs prevailing in the area, and cannot be accepted. We are of the considered view that all the documents relied on by the petitioner, though emanated from the lower level Government officials, are not stating the correct fact for the reasons best known to them. Hence, all those documents cannot be taken note of by this Court as they lack credibility.
31. The other additional factor is that voluminous inter-departmental documents, some of which are draft documents and not reached finality, are with the possession of the petitioner and are placed before this Court in the typed set of papers. Of course the petitioner contended that they obtained those documents under the Right to Information Act. But we are not able to accept the same for the reasons stated supra. Even the letter dated ...4.2001 stated to have been furnished under the Right to Information Act at page No.560 of the typed set of papers only refers the information supplied in respect of the extent of poramboke land available in Kazhuveli village as per the revenue record. Hence, we are inclined not to give any credence to those documents.
(E) Requirement for I.T.Improvement Purpose:
32. It is an admitted fact that the said land is situated in between the old Mahabalipuram road and east coast road. The lease was granted, admittedly, more than 30 years back. After that, the old Mahabalipuram road has become the Information Technology corridor and that road has developed to the international standard, providing all facilities and amenities to the multi-national information technology companies located in that area. Every day, the information technology industries are mushrooming in the area under consideration. In addition to that, one deemed university and several engineering colleges are located in that area. Likewise, in the East Coast Road dental colleges and other marine technology colleges and several other information technology industries are located and it is transformed into a much wanted habitat and several multi-storeyed buildings have come up for catering the needs of fast developing information technology industries.
33. It is needless to say that because of the location of the Information Technology industries in areas under consideration the other subsidiary industries supporting information technology and other residential apartments have already come into existence and several others are in the pipe line and the development of the area is very fast, it is the duty of the respondent Government to preserve the environment suitable for habitation. That is the reason given for the impugned order.
(F) Promissory Estoppel Legitimate Expectation:
34. The next contention that the impugned order is hit by principle of promissory estoppel and legitimate expectation, is only raised for the purpose of this writ petition. Though an averment has been made in the affidavit filed in support of the writ petition contending that the impugned order is hit by the principle of promissory estoppel, there is no factual foundation therein for us to accept the same.
35. It has been settled by the Courts of law that the doctrine of promissory estoppel is applicable against the Government, particularly, where it is necessary to prevent fraud or manifest injustice. The doctrine, however, cannot be pressed into aid to compel the Government or the public authority "to carry out a representation or promise which is contrary to law or which was outside the authority or power of the officer of the Government or of the public authority to make." There is preponderance of judicial opinion that to invoke the doctrine of promissory estoppel clear sound and positive foundation must be laid in the petition itself by the party invoking the doctrine and that bald expressions, without any supporting material, to the effect that the doctrine is attracted because the party invoking the doctrine has altered its position relying on the assurance of the Government would not be sufficient to press into aid the doctrine. The doctrine of promissory estoppel cannot be invoked in the abstract and the Courts are bound to consider all aspects including the results sought to be achieved and the public good at large, because while considering the applicability of the doctrine, the Courts have to do equity and the fundamental principles of equity must for ever be present to the mind of the Court, while considering the applicability of the doctrine. The doctrine must yield when the equity so demands if it can be shown having regard to the facts and circumstances of the case that it would be inequitable to hold the Government or the public authority to its promise, assurance or representation. (See Kesinga Trading v. Union of India, AIR 1995 SC 874).
36. In this case, from the facts narrated above, there is no legal right to the petitioner to be in possession of the property after expiry of the lease period. However, the petitioner continued to be in possession and was enjoying the same for which he has paid the rental, which has been collected by the lower authorities. The acceptance of the rental, by itself, could not be regarded as a promise made by the Government for renewal of the lease, when the Government is made to fight tooth and nail in the legal proceedings.
37. Equally, we are not able to accept the submission of the petitioner that the impugned order is hit by doctrine of legitimate expectation. We have already discussed that there is no provision either in the lease granted in favour of the petitioner nor in the agreement for renewal of the lease. In the stated circumstances, the petitioner cannot legitimately expect a non existing right. The doctrine can only be made use to test the arbitrariness or otherwise of the order of administrative authority, but, it can never be regarded as enforceable right. (See State of West Bengal v. Niranjan Sinha, (2001) 2 SCC 326) (G): No notice under Sections 106 and 116 of Transfer of Property Act:
38. Section 106 and 116 of the Transfer of Property Act, in our view, is not applicable to the facts of the case. Those are the circumstances or events available in the absence of any contractual interdictions. In this case, a contractual condition is there obligating the petitioner to hand over possession after the expiry of the lease period. It is also the contention of the respondents that the grant is made under the Government Grants Act, though it is called 'lease' and as such the contention of the petitioner regarding the applicability of the Transfer of Property Act cannot be legally sustained.
39. The scope of the Act has been considered by the Supreme Court in the case of Hajee S.V.M.Mohd. Jamaludeen Bros. v. Government of Tamilnadu, (1997) 3 SCC 466. We are of the view that it is appropriate to extract the relevant portion of that judgment :
"Section 2 of the Grants Act insulates all grants and all transfers of land or any interest therein made by the Government from the checks of the provisions of Transfer of Property Act. Section 3 of the Grants Act protects the terms of such grant from the provisions of any other law. We extract the above two provisions hereunder:
"2.Transfer of Property Act, 1882, not to apply to Government grants. -- Nothing in the Transfer of Property Act, 1882, contained shall apply or be deemed ever to have applied to any grant or other transfer of land or any interest therein heretofore made or hereafter to be made by or on behalf of the Government to, or in favour of, any person whomsoever; but every such grant and transfer shall be construed and take effect as if the said Act had not been passed.
3. Government grants to take effect according to their tenor.All provisions, restrictions, conditions and limitations over contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor, any rule of law, statute or enactment of the Legislature to the contrary notwithstanding.
10. The combined effect of the above two sections of the Grants Act is that terms of any grant or terms of any transfer of land made by a Government would stand insulated from the tentacles of any statutory law. Section 3 places the terms of such grant beyond the reach of any restrictive provision contained in any enacted law or even the equitable principles of justice, equity and good conscience adumbrated by common law if such principles are inconsistent with such terms. The two provisions are so framed as to confer unfettered discretion on the Government to enforce any condition or limitation or restriction in all types of grants made by the Government to any person. In other words, the rights, privileges and obligations of any grantee of the Government would be completely regulated by the terms of the grant, even if such terms are inconsistent with the provisions of any other law.
11. The above legal position was recognised by the courts in India before the Constitution of India came into being. (Surja Kanta Roy Choudhury v. Secy. of State1 and Raza Husain Khan v. Saiyid Mohd. AIR 1938 Oudh 175:ILR 14 Luk 22) The position continued to be so even after the Constitution came into force (State of U.P. v.Zahoor Ahmad, 193 (2) SCC 547:(1974) 1 SCR 344).
12. An attempt was made to show that the transaction evidenced by the agreement was not a grant but a lease of land. Though it is not now open to the appellant to raise such a contention (in view of the clear finding of the learned Single Judge that it was not a lease but only a licence coupled with interest, which finding was not challenged by the appellant before the Division Bench) assuming that it was a lease of land, still the appellant cannot succeed because lease made by the Government is also covered by the protection envisaged in Sections 2 and 3 of the Act. (emphasis supplied)
13. Alternatively it was argued that a licence coupled with interest created by the instrument is not a grant and hence the provisions of the Grants Act cannot apply.
14. It is true that the word grant is not defined in the Grants Act but it is quite evident that the word has been used in the Act in its etymological sense and, therefore, it should get its widest import. In Blacks Law Dictionary, the word grant is shown to have the meanings (i) to bestow; to confer upon someone other than the person or entity which makes the grant; (ii) to give or present as a right or privilege. (5th Edn., p.629)
15. The definition of licence in Section 52 of the Indian Easements Act denotes that it is the grant of a right made by the grantor. Section 53 and Section 54 of the said Act also refer unequivocally to the grant of licence. Thus without a grant in the general sense no licence can be created.
16. In Mohsin Ali v. State of M.P.4 this Court said that: (SCC p.126, para 15) In the widest sense grant may comprehend everything that is granted or passed from one to another by deed. But commonly, the term is applied to rights created or transferred by the Crown, e.g., grants of pensions, patents, charters, franchise (see Earl Jowitts Dictionary of English Law).
17. The word grant used in the Grants Act could, therefore, envelop within it everything granted by the Government to any person. Thus the licence which the appellant obtained by virtue of the agreement would undoubtedly fall within the ambit of grant envisaged in the Grants Act.
18. The result is that the appellant cannot bypass clause 7 of the instrument under which he obtained the right to collect chank shells. The said clause adequately empowers the Government to unilaterally terminate the arrangement or revoke the grant without assigning any reason whatsoever. The said clause is valid and could be enforced by the Government at any time and hence the action of the Government in rescinding the contract was valid. The appellant is not, therefore, entitled to damages."
In view of the above enunciation of law, the contention that the Transfer of Property Act would apply also is to be rejected.
40. In addition to the principal reasons stated above, the impugned order also reproduces the reason stated in the two show cause notices, which were issued for the violation of the lease conditions.
(H): Violation of lease conditions:
41. In the reply dated 05.08.1998 to the show cause notice, the petitioner has, in uncertain terms, accepted that the motor and pump set were erected, however, justified the same by saying that they were put up with the knowledge of the respondents, without any material to support the same.
42. In respect of drawing water in violation of the conditions of lease, the petitioner replied that at no time the water level was 19 feet in the canal. The depth of the canal itself is not 19 feet. The reply cannot be accepted as a justification for the violation. There is nothing on record to show that the respondents accepted the use of 25 HP pump and the shed put up by them. So, is the violation of drawing water when the water level in the Buckingham canal was less than 19 feet.
43. Though the petitioner has stated that they applied for permission to use a portion of the land for aquaculture, the fact remains that the petitioner used the portion of the land for the purpose for which the lease was not granted, i.e., for aquaculture from the year 1994 without any permission or licence and thereby violated the specific lease condition.
44. In respect of the violation, as per the grant in G.O. Ms. No.1077 dated 22.06.1982 sea water should be drawn only through the head sluice approved by the Public Works Department and not through any other means. No water should be drawn when the water level is below 19 feet and no pumping should be resorted to in drawing water from the canal.
45. The petitioner relied on the inspection report of the Assistant Engineer, PWD, WRO, B Canal Section, Mahabalipuram dated 11.04.2007 to contend that Buckingham canal water was drawn into the sumps put up by the petitioner in the leasehold area and the sea water is lifted by electrical motors from the sumps. Flow to that sump is by gravity. During the inspection there was no blockage in B.canal. However, the petitioner, in their letter, which is found at pages 286 @ 287, has clearly accepted by saying that the drawing of water from B. Canal is permitted activity by the Government. On the face of the admission of violation, the report of the officer to the contrary cannot be accepted. The petitioner violated the lease conditions. Hence the report cannot be taken advantage of by the petitioner. (We have already concluded that the letters and report of the lower level officers lack genuineness and bonafide and cannot be relied on.)
46. The District Collector, by letter dated 10.02.2003 has also stated that the company draws the main raw material, i.e., sea water (brine) from Edalyur sea bar at Kalpakkam. This sea brine travels through Buckingham canal by gravity upto Palyanoor village where the company's main pump house is situated. Then the water is lifted to their lands by use of electric motors and pumps. Thus, the use of motor in violation of lease condition stands sustained.
47. The other violation is that the petitioner constructed small canals in both sides of B. Canal without the permission of PWD, which is a violation of the lease condition. In the letter of 10.02.2003 aforesaid, the District Collector in paragraph 4 has stated that the company has put up three deep wells in which high quality brine is stored at the end of each season. The company is utilising the brine stored in deep well during the initial days of the season.
48. The report further proceeds that the company has developed various infrastructures, viz., channels, roads, bunds, salt heap platform, deep wells, crystalliser, washing unit, bittern storage tank, administrative buildings etc., to put the entire area effectively for salt production in which its activities are carried on. Hence, the second violation stands substantiated, though denied by the petitioner.
49. Yet another violation is that the petitioner did not remit the lease dues on the due dates periodically. In paragraph 3 of the affidavit filed in support of the writ petition No.25331 of 2007, the petitioner has admitted that they have not made regular payment of lease amount as agreed in the agreement and they were making only losses. The relevant paragraph read as under :
"The petitioner before being taken over by the TGV group in 1990 was continuously making losses and had not paid the Government dues for years together, with accumulated unpaid loans with interest over many years amounting to Rs.2.33 crores besides unpaid lease rent, royalty, etc. right from the inception."
When such a categorical admission is made by the petitioner in the solemn affidavit, any other contention to the contrary cannot be accepted.
50. The other violations that storing of sea water in pans will cause sea water intrusion into drinking water sources, which leads to many skin diseases and water borne diseases to the nearby population and it attracts section 25 of the Water (Prevention and Control of Pollution) Act, 1974, and section 21 of the Air (Prevention and Control of Pollution) Act, 1981, it has been disputed on the ground that the Pollution Control Board has given clearance, but in the reply dated 28.12.2001 to the show cause notice it is admitted that they have formed 24 number of brine storage reservoirs. The report of the Collector dated 10.02.2003 has also stated that the company has put up deep wells in which high quality brine is stored. It is not permitted as it converts the groundwater to saline water.
51. It is stated that storing of sea water in pans will cause sea water intrusion into drinking water sources, which leads to many skin diseases and water borne diseases to the nearby population. The seepage of sea water into the land definitely will cause salinity to the underground drinking water. The Government is now taking every effort to convert the sea water into drinking water for catering the needs for drinking water. In such circumstances, the Government cannot be expected to allow the petitioner to convert the potable ground water to get salinated by keeping the high concentrated brine in the deep wells. Public interest prevails over the private interest of the petitioner.
52. The above stated violations have been dealt with in this judgment, only as it was argued by the petitioner. We have already come to the conclusion that the Government is neither obligated to pass an order on the renewal letter nor give any reason for rejecting the renewal of the lease. Hence, the contentions made in that regard are liable to be rejected and are rejected as such.
53. The grant of lease in respect of two other petitioners, one at Villupuram and another at Vedaranyam, cannot be aground for granting the lease in favour of the petitioner. The properties at Villupuram and Vedranyam are far away from Chennai and thus they cannot be placed on par with the land under consideration. Assuming that the leases have been granted based on reliance of the Government Order in G.O.Ms.No.810 dated 30.5.1991, those grants, by no way, advance the case of the petitioner for the reasons above stated.
54. For all these reasons, the writ petition No.27071 of 2007 is dismissed. The Writ Appeal No.1000 of 2007 and writ Petition Nos.25331 of 2007 are dismissed as infructuous. No costs.
(K.R.P.,J.) (P.P.S.J.,J.) 22.07.2008 Index: Yes Internet: Yes mf To:
1. The Secretary to Government, Revenue Department, State of Tamilnadu, Fort St. George, Chennai 9, Tamilnadu.
2. The Special Commissioner and Commissioner for Land Administration Department, Government of Tamilnadu, Ezhilagam, Chepauk, Chennai 5, Tamilnadu.
3. The District Collector, Kanchipuram District, Kanchipuram, Tamilnadu.
4. The Tahsildar, Chengalpattu Taluk, Kanchipuram district, Kanchipuram, Tamilnadu.
K.RAVIRAJA PANDIAN,J.
AND P.P.S.JANARTHANA RAJA,J.
mf judgment in W.A.No.1000 of 2007 and W.P.Nos.25331 and 27071 of 2007 22.07.2008 Pre delivery judgment in W.A.No.1000 of 2007 and W.P.Nos.25331 and 27071 of 2007 TO HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJA FROM: JUSTICE K.RAVIRAJA PANDIAN