1. This judgment shall govern writ petition Nos.9469 and 9470 of 1998 as the parties are common and also the controversy involved. Common petitioner herein is a company registered under the Companies Act which carries its business as steamer agents, stevedores as also clearing and forwarding agents. Though the petitioner carries on its business all over India through its branches, the present controversy relates only to the Port of Madras and the Board of Trustees of Port of Madras is the first respondent herein. Second and third respondents are also more or less in the same business as that of the petitioner and can be conveniently called as the business rivals. It is an undisputed position that the first respondent is a statutory body and is governed by the provisions of the Major Port Trusts Act, 1963 (hereinafter called 1963 Act for the sake of brevity). The whole controversy in the petitions revolves around two berths out of the total six berths at Jawahar Docks in Chennai Port. These six berths are for handling deep drafted vessels with a draft of 33 feet and a beam of 105 feet. In short, bigger vessels which carry large quantities of cargo can be berthed at these berths only. Out of these six berths one berth which is JD V is licensed to the second respondent, while still another berth which is JD I has been licensed to the third respondent by two different agreements. The agreements are common though they have been executed on two different dates. First in point of time is the agreement in favour of the second respondent executed on 22. 1998 in respect of JD V while the second agreement is in favour of the third respondent executed on 3. 1998 in respect of JD I berth. The whole controversy revolves around firstly the validity of the action on the part of the first respondent to license these berths and secondly the manner in which these licensed berths would be worked more particularly whether respondents 2 and 3 who can be even referred to as the licensees would be bound to berth all ships and vessels at these licensed docks strictly on "first come first served" basis. It will be better to provide a factual lay-out first in order to appreciate the controversies involved in their full perspective.

2. The Government of India, Ministry of Surface Transport assessed that major expansion was required in the Port Infrastrucure Sector of this Country for handling seaborne traffic on account of increasing Foreign and Coastal Trade for mobilising substantial resources and for improving the efficiency, productivity and quality of service as also to introduce competition in the port services. A policy decision was taken to throw open Port Sector for private participation. This was the result of the liberalisation/globalisation of economy and it was felt that the Private Sectors participation in the Port Management would result in reducing the gestation period for setting up new facilities and would also arm the port with the latest technology and improved management techniques. The areas for such participation by the Private Sector were identified, one of them being leasing out the facilities of the Port. Guidelines were fixed for engaging private sector for enhancing Ports capacities and mobilising the Ports equipments. A sub-committee was formed consisting of six Trustees of Chennai Port for examining the berth reservation scheme. A detailed study was made and a notification No. A/742/95/T (M&S) dated 8. 1995 was issued for inviting proposals in a sealed cover for taking on lease the berths in Jawahar Docks with attached transit sheds on as is where is basis condition. It is seems that the proposal to lease out the property including land, existing berths, superstructure, equipments, etc., was in keeping with the provisions of Section 34 (1) and Section 42(3) of the 1963 Act which is the governing enactment. Section 34 provides the modalities of executing contracts on behalf of the Board, while Section 42(3) provid