Meka Dredging Co. Pvt. Ltd. v Union of India & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **MONDAY, THE 30TH DAY OF MAY 2016/9TH JYAISHTA, 1938** ## **WP(C).No. 5342 of 2014 (P)** **---------------------------** ## **PETITIONER(S):** **-----------------------** **M/S. MEKA DREDGING CO. PVT. LIMITED, HAVING ITS CORPORATE OFFICE AT 304, SIV SMRITHI CHAMBERS 49, DR.A.B. ROAD, WORLI, MUMBAI, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, MRS.K.S. SANDYA, AGED 47, W/O.LATE KRISHNANKUTTY, KURUNTHOTTICKAL HOUSE, COLLEGE JUNCTION, KOZHENCHERRY, PATHANAMTHITTA.** **BY ADVS. SRI.PHILIP J.VETTICKATTU, SRI.B.PREMNATH (E).** - **RESPONDENT(S): --------------------------** **1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF FINANCE, NEW DELHI-110 001.** **2. STATE OF KERALA, REP. BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF FISHERIES AND PORT, 3D FLOOR, SOUTH BLOCK, SECRETARIAT, THIRUVANANTHAPURAM, PIN- 695 001.** **3. THE DIRECTOR, THE DIRECTORATE OF PORTS, VALIYATHURA, VALLAKADAVU P.O., THIRUVANANTHAPURAM, PIN- 695 008, REPRESENTED BY ITS DIRECTOR.** **4. THE PORT OFFICER, PORT OFFICE, NEENDAKARA, ASRAMAM, KOLLAM-02.** **5. M/S. INDUSTRIAL FINANCE BANK, 1ST FLOOR, DENA BANK BUILDING, HORIMAN CIRCLE, MUMBAI-400 023, REPRESENTED BY ITS CHIEF MANAGER.** **R1 BY ADV. SRI.N.NAGARESH, ASSIST. S.G. OF INDIA. R2 TO R4 BY GOVT. PLEADER SRI.P.P. PADMALAYAN.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-03-2016, THE COURT ON 30/05/2016 DELIVERED THE THE FOLLOWING:** rs. ## **WP(C).No. 5342 of 2014 (P)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **EXHIBIT-P1: TRUE COPY OF PROVISIONAL CERTIFICATE OF INDIAN REGISTRY, DATED 24.05.2013.** - **EXHIBIT-P2: TRUE COPY OF AGREEMENT DATED 10.08.2012 ENTERED INTO BETWEEN THE PETITIONER AND THE 4TH RESPONDENT.** - **EXHIBIT-P3: TRUE COPY OF AGREEMENT DATED 10.01.2013 ENTERED INTO BETWEEN THE PETITIONER AND THE 4TH RESPONDENT.** - **EXHIBIT-P4: TRUE COPY OF RECEIPTS ISSUED BY THE RESPONDENTS TO THE PETITIONER TOWARDS REMITTANCE OF PORT DUES.** - **EXHIBIT-P5: TRUE COPY OF REPRESENTATION DATED 19.10.2013 SUBMITTED BY THE PETITIONER BEFORE THE HON'BLE MINISTER, DEPARTMENT OF FISHERIES AND PORTS.** - **EXHIBIT-P6: TRUE COPY OF LETTER DATED 16.01.2014 ISSUED BY THE 3RD RESPONDENT DENYING EXT.P5.** - **EXHIBIT-P7: TRUE COPY OF GO (MS) NO.15/13/F & PD DATED 23.03.2013.** - **EXHIBIT-P8: TRUE COPY OF LETTER DATED 17.01.2014 ISSUED BY THE 4TH RESPONDENT TO THE 5TH RESPONDENT.** - **EXHIBIT-P9: TRUE COPY OF EMAIL COMMUNICATION, DATED 12.02.2014 FROM THE AGENT OF THE PETITIONER.** - **EXHIBIT-P10 TRUE COPY OF THE LETTER DATED 18/03/2014 ISSUED BY THE 3RD RESPONDENT TO THE COUNSEL FOR THE PETITIONER.** - **EXHIBIT-P11 TRUE COPY OF THE E-MAIL COMMUNICATION DATED 08/04/2014 SENT BY THE 2ND RESPONDENT DEMANDING FURTHER PAYMENT.** - **EXT.P11 IN I.A. NO.3642/2016: TRUE COPY OF THE INTIMATION ISSUED BY THE RESPONDENT ON 29/04/2015 SHOWING THE BALANCE OUTSTANDING AMOUNT.** **EXHIBIT-P12 COPY OF THE COMMUNICATION DATED 22/06/2013 SENT BY THE PETITIONER TO THE RESPONDENT.** - **EXHIBIT-P13 COPY OF THE LETTER DATED 26/08/2013 ISSUED BY THE RESPONDENT IN REPLY TO EXT.P12.** **RESPONDENT'S EXHIBITS:NIL.** **//TRUE COPY//** rs. **P.S. TO JUDGE** ## **A.MUHAMED MUSTAQUE, J.** ================== W.P.(C) No.5342 of 2014 ================== Dated this the 30[th] day of May, 2016 ## **J U D G M E N T** The petitioner entered into two agreement with port authorities for berthing their dredger for repair. The issue in this writ petition pertains to revision of port-dues and charges. At the time of agreement, the rate payable towards port charges is Rs.700/- per day per vessel. This has been enhanced as per Ext.P7. This revision was introduced as per Ext.P7, which is under challenge in this writ petiton. Admittedly, the revision came into force after the agreement entered into with the petitioner. 2. The legality of the enhancement of the port charges is questioned in this writ petition viz., for want of publication of this revision in the Official Gazette. The port dues, fees and other charges are covered by Indian Ports Act, 1908. Chapter V of the Act refers to port-dues, fees and other charges. Section 33 provides as follows; W.P.(C) No.5342 of 2014 2 ## “33. **Levy of port-dues** (1) Subject to the provisions of sub-section (2), in each of the ports mentioned in the first schedule other than a major port such port-due, not exceeding the amount specified for the part in the third column of the schedule as the Government directs, shall be levied on vessels entering the port and described in the second column of the schedule, but riot oftener than the time fixed for the port in the fourth column of the schedule. (2) The Government may, by notification in the Official Gazette, after or add to any entry in the first schedule relating to ports in any State or, as the case may be, in the State, and this power shall include the power to regroup any such ports: (3) Whenever the Government declares any other port other than a major port to be subject to this Act it may, by the same or any subsequent declaration further declare;- (a) in the terms of any of the entries in the second column of the first schedule, the vessels which are to be chargeable with port-dues on entering the port. - (b) the highest rates at which such dues may be levied in respect of vessels chargeable there with, and - (c) the highest rates at which such dues may be levied in respect of vessels chargeable there with, and - (c) the times at which such vessels are to be so chargeable. - (4) All port-dues now leviable in any port shall continue W.P.(C) No.5342 of 2014 3 to be so leviable until it is otherwise declared in exercise of the powers conferred by this section. (5) An order increasing or imposing port-dues under this section shall not take effect till the expiration of sixty days from the day on which the order was published in the Official Gazette.” 3. The port charges infact is prescribed in the schedule of the Ports Act. Reference is made in the Ports Act in Part 7 of the schedule. In the schedule itself the port rate is prescribed. Therefore, rate of port dues can be revised only by exercising power under Section 33. Section 33(2) r/w Sub Section 5, clearly indicates variation or increase in port dues shall not take effect till the expiration of sixty days from the day on which the order was published in the Official Gazette. Therefore, in the event of increase of rate, it shall be published in the Official Gazette as per the mandate under Section 68 of the Ports Act. Section 68 mandates that, every declaration, order and rule of the Government made in pursuance of this Act shall be published in the Official Gazette. Thus any variation or increase cannot be given effect without the same being published in Official ## W.P.(C) No.5342 of 2014 4 Gazette. Thus, revision of port-dues pursuant to Ext.P7 would not have any legal effect unless the order is published in the official gazette. 4. Apart from the port-dues, there are demands for other charges including wharfage from the petitioner. The wharfage rate has also been revised and increased as per Ext.P7 order. The Section 35 provides for levy of fees for pilotage and certain other services. The wharfage and other charges have been claimed from the petitioner in terms of Section 35 of the Act. This also shows that Government has to decide on the rate of charges levied for the services under Section 35. The learned counsel for the petitioner pointing out to Section 68, submits that any order of the Government which is varying wharfages or other charges as referable under Section 35 will also have to be published under Section 68 of the Ports Act. In such circumstance, it is appropriate to refer Section 68 of the Ports Act. Section 68 of the Ports Act reads as follows; ## **“68. Publication of orders of Government** Every declaration, order and rule of a Government made in pursuance of this Act shall be published in ## W.P.(C) No.5342 of 2014 5 the Official Gazette, and a copy thereof shall be kept in the office of the conservator and at the customhouse, if any, of every port to which the declaration, order or rule relates, and shall there be open at all reasonable times to the inspection of any person without payment of any fee.” Section 68 also mandates that, the order of the Government shall be published in the Official Gazette. Essentially the publication is necessary to put a notice to the public about the rate applicable and to give effect to that. 5. In this case, agreement was entered by the petitioner with the port authorities much before the decision for revision was taken. There is no plenary power as such given to the Government to give any retrospective effect to the revision. The very mandate of publication in the Official Gazette would indicate that, it would have only a prospective application. Therefore, an ongoing contract between petitioner and port authorities cannot be impacted by the revision. 6. The Hon'ble Supreme Court in **ITC Bhadrachalam Paperborads Anr. V. Mandal Revenue Officer,** W.P.(C) No.5342 of 2014 6 ## **Andhrapradesh and Ors. JT 1996(8) 67,** it was held as ## follows; “Where the parent statute prescribes the mode of publication or promulgation that mode must be followed. Where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable. If the subordinate legislation does not prescribe the mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication, it will take effect only when it is published through the customarily recognized official channel, namely, the Official Gazette or some other reasonable mode of publication.” The above decision make it clear that, where particular mode is prescribed under Parent Act, it cannot be deviated by acting pursuant to Parent Act. 7. In an another judgment of the Hon'ble Supreme Court in **B.K.Srinivasan and Others v. State of Karnataka and others (1987) 1 SCC 658** it was held as follows; “It is, therefore, necessary that subordinate legislation, in order to take effect, must be published or promulgated in some suitable manner, whether such publication or promulgation is prescribed by ## W.P.(C) No.5342 of 2014 7 the parent statute or not. It will then take effect from the date of such publication or promulgation. Where the parent statute prescribes the mode of publication or promulgation that mode must be followed.” 8. This Court also in **Peer Mohammed V. Chirakandam Grama Panchayath 2008(3) KLT 300** held that, when a statute prescribed publication by a notification of the above obligation, the notification would take effect only from the date of publication. Therefore, the judgment as above really indicate the legal effect of Government order without notification, i.e. it has no validity. 9. The Parent Act prescribes publication by an Official Gazette is a clear indication that any person wants to utilize and use of port must put in notice of such charges being levied. The intention is that, he shall not be taken by surprise regarding the rate applicable in the port. The port charges and levy of fees are in the form of a contract and it is for that reason, the legislature mandates that the contracting parties should not be on a peril by uncertainty W.P.(C) No.5342 of 2014 8 of rate applicable. 10. In this case, in spite of plea raised by the petitioner, nothing has been placed before this court to show that Ext.P7 has been given effect by the publication in the Official Gazette. In that view of the matter, this court is of the view that the demand in Ext.P7 as against petitioner is unsustainable. Therefore, the demand now raised shall be reworked based on pre-revised rate, as though enhancement is not applicable and any amount paid in excess by the petitioner shall be refunded to the petitioner within a period of two months. 11. The petitioner paid Rs.45,19,623/- based on Ext.P7. Considering the amount payable, this court has no doubt, the amount paid was in excess. It is admitted that, the dredger is now berthed at the port for want of payment of dues. In view of the fact that petitioner is not liable for the revised claim based on Ext. P7, necessary permission shall be given to the petitioner to take the dredger from the port within two weeks notwithstanding that recalculation has to be done as per the direction of this W.P.(C) No.5342 of 2014 9 Court. This Writ Petition is disposed as above. No costs. STK Sd/- **A. MUHAMED MUSTAQUE, JUDGE** //TRUE COPY// //P.A. TO JUDGE//