WA.No. 1499 of 2016 in WPC. 5342/2014

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE THE CHIEF JUSTICE MR.ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU** **FRIDAY, THE 16TH DAY OF MARCH 2018 / 25TH PHALGUNA, 1939** **WA.No. 1499 of 2016 IN WPC. 5342/2014** **--------------------------------------** **AGAINST THE JUDGMENT IN WP(C)5342/2014 of HIGH COURT OF KERALA DATED 30-05-2016** ## **APPELLANT(S)/RESPONDENTS 2 TO 4 IN WPC** **---------------------------------------** **1 STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF FISHERIES AND PORT, 3RD FLOOR, SOUTH BLOCK, SECRETARIAT, THIRUVANANTHAPURAM, PIN:695001.** **2 THE DIRECTOR THE DIRECTORATE OF PORTS, VALIYATHURA, VALLAKADAVU P.O., THIRUVANANTHAPURAM PIN:695008, REPRESENTED BY ITS DIRECTOR.** **3 THE PORT OFFICER PORT OFFICE, NEEDNAKARA, ASRAMAM, KOLLAM-2.** ## **BY SR.GOVERNMENT PLEADER SRI. SURIN GEORGE IYPE** ## **RESPONDENT(S)/PETITIONER AND RESPONDENTS 1 AND 5 IN WPC:** **----------------------------------------------------** **1. M/S. MEKA DREDGING CO PVT LTD 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.SANDHYA, W/O LATE KRISHNANKUTTY, KURUNTHOTTICKAL HOSUE, COLLEGE JUNCTION, KOZHENCHERRY, PATHANAMTHITTA.** ## **2. UNION OF INDIA,** **REPRESENTED BY ITS SECRETARY, MINISTRY OF FINANCE, NEW DELHI-110 001.** ## **3. M/S. INDUSTRIAL FINANCE BANK** **IST FLOOR, DENA BANK BUILDING, HORIMAN CIRCLE, MUMBAI-400 023, REPRESENTED BY ITS CHIEF MANAGER.** **R2 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R1 BY ADV. SRI.PHILIP J.VETTICKATTU R1 BY ADV. SRI.VINEETH KURIAKOSE R3 BY ADV. SRI.PHILIP T.VARGHESE R3 BY ADV. SRI.THOMAS T.VARGHESE R3 BY ADV. SMT.ACHU SUBHA ABRAHAM R3 BY ADV. SMT.K.R.MONISHA** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WA.No. 1499 of 2016** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **---------------------** **ANNEXURE B - A TRUE COPY OF THE MINUTES OF TH E MEETING PRESIDED OVER BY THE DISTRICT COLLECTOR, KOLLAM ANNEXURE C - TRUE COPY OF THE COMMUNICATION** ## **RESPONDENT'S EXHIBITS** **---------------------** **ANNEXURE R1TRUE COPY OF THE LETTER SENT BY THE 1[ST] RESPONDENT TO THE APPELLANT ANNEXURE R1(A)PHOTOGRAPHS SHOWING THE STRANDING OF VESSEL IN THE BEACH ANNEXURE R1(B)TRUE COPY OF INVOICE ISSUED BY THE PORT AUTHORITIES TOWARDS THE HIRE CHARGES OF TUG ANNEXURE R1(C)TRUE COPY OF INVOICE ISSUED BY M/S.TRANS STAR MARINE OFF SHORE ANNEXURE R1(D)TRUE COPY OF LETTER SENT BY THE PORT OFFICER THROUGH EMAIL DT.3.9.2016 ANNEXURE R1(E)TRUE COPY OF THE ADVERTISEMENTS PUBLISHED IN THE RELATED FIELDS BY THIS RESPONDENT ANNEXURE R1(F)TRUE COPY OF THE AGREEMENT EXECUTED BETWEEN THIS RESPONDENT AND MSTC LIMITED** ## **// TRUE COPY //** **P.A. TO JUDGE.** **CR** ## **Antony Dominic, CJ & Dama Seshadri Naidu, J** -----------------------------------------------W.A. No. 1499 of 2016 ------------------------------------------------Dated this the 16[th] day of March 2018 J U D G M E N T ## Dama Seshadri Naidu, J The writ-petitioner Company, now respondent in the writ appeal, is a marine contractor specialised in soft and rock dredging work. In 2011 the Company’s dredging vessel was brought to the Cochin Port for dredging the Cochin Shipyard. Later, when the vessel developed certain mechanical defects, the Company wanted to berth the vessel for repairs. But it did not approach the Cochin Port Trust both because the berths were unavailable and the charges are high. So it approached the Kollam Port, the third appellant. 2. Kollam Port agreed, the Company claims, to repair the vessel; it also agreed to levy berth charges as per Part VI of the Schedule to the Indian Ports Act, 1908 ('the Act'): Rs.700/- per day. Accordingly, the Company singed Exts.P2 & P3 agreements, as approved by the Directorate of Ports, with Kollam Port. The vessel’s initial estimated stay was for two months, and the projected berthing cost was Rs.42,000/-. As the vessel could not be repaired within schedule, it was berthed beyond two months. **W.A. No. 1499 of 2016** **2** At the agreed rate of Rs.700/- per day, the berthing charges, the Company asserted, would come to Rs.1,68,000/-. But the Kollam Port insisted that the Government revised the berthing charges through Ext.P7 and that the Company should pay more than Rs.45,00,000/- for eight months. The Company’s correspondence with the authorities yielding no result, it filed W.P(C). No.5342 of 2014. 3. Through the judgment dated 30.5.2016, a learned Single Judge of this Court held that Ext.P7 could not be sustained in the face of the statutory mandate, especially Section 68 of the Act. The judgment elaborates that every Governmental declaration, order, or rule made under the Act must be published in the Official Gazette. And Ext.P7 was not published, though. 4. Aggrieved, the Government of Kerala and Kollam Port, the appellants, are before us in this intra-court appeal. ## **Submissions:** ## **The Appellants’:** 5. The learned Government Pleader has valiantly tried to impress upon us that the berthing charges fall under section 35 of the Act, rather than section 33. He also contended that, unlike section 33, section 35 does not mandate that any revision in charges on the services the port renders to any vessel should be published. When faced with a sweeping Section 68, **W.A. No. 1499 of 2016** **3** the learned Government Pleader has tried to explain it away: section 68 comes under a different chapter of the Act. ## **Respondent Company’s:** 6. Per contra, Sri Philip J. Vettickattu, the learned counsel for the respondent company, submitted that the impugned judgment has considered every statutory provision, as well as every possible defence the appellants raised. According to him, the judgment is unassailable, and it is based on correct statutory interpretations. He has submitted that charges were levied under Section 33, and without an intimation to the respondent, at that. 7. Sri Philip J. Vettickattu has also submitted that the appellant’s levying exorbitant charges contravenes Exts. P2 and P3. He has also categorically denied the appellants' assertion that in Ext.P1 agreement, the respondent Company has agreed to pay any enhanced charges. In the end, Sri Vettickattu has submitted that the judgment does not call for any interference. 8. Heard the learned Government Pleader and the learned counsel for the respondent Company. ## **Issue:** Must the revised berth charges be published before they could be enforced, and the berthed vessel is charged? **W.A. No. 1499 of 2016** **4** ## **Discussion:** 9. Indeed, the issue lies in a narrow compass, and the dispute concerns a pure question of law. We are called upon to decide whether any declaration, order, or rule effected by the Government under the Indian Ports Act for levying a charge, or for whatever purposes, requires publication. Is publication a pre-condition for the Kollam Port or the Government to bring into effect the intended administrative or fiscal measure? ## **The Statutory Scheme:** 10. Statutorily speaking, the Indian Ports Act, 1908, governs the transaction before us—the berth charges. Part VII of Schedule I to the Act lists out the ports under the Government of Kerala control. It also specifies the class of vessels and the ‘rate of port dues.’ ## **(a) The Rule Making Power:** 11. Section 6 of the Act confers on the Government the rule-making power: the Government may make such rules, consistent with this Act, as it thinks necessary for, among other things, (a) for regulating the time and hours at and during which . . . vessels of any class may enter, leave, or be moved in any port subject to this Act; ( _b_ ) for regulating the berths, stations and anchorages to be occupied by vessels in any such port; . . . ( _g_ ) for regulating the anchoring, fastening, mooring, and unmooring of vessels in **W.A. No. 1499 of 2016** **5** any such port; . . . ( _j_ ) for fixing the rates to be paid in a port other than a major port for the use of such moorings when belonging to the Government; or of any boat, hawser or other thing belonging to the Government; ( _jj_ ) for regulating the use of piers, jetties, landing places, wharves, quays, warehouses and sheds when belonging to the Government; ( _jja_ ) for fixing the rates to be paid for the use of piers, jetties, landing places, wharves, quays, warehouses and sheds of any port, other than a major port, when belonging to the Government. 12. Indeed, sub-section (2) of section 6 mandates that the Government’s power to make rules under sub-section (1) is “subject to the conditions of the rules being made after previous publication.” Further, every rule, as per sub-section (2-A), made by the State Government under this Act shall be laid, as soon as may be after it is made, before the State Legislature. ## **(b) Levy of Port Dues:** 13. Section 33 of the Act empowers the Government to levy port dues in each port mentioned in the First Schedule to the Act, subject to the other provisions in this section. The levy will on the vessels entering the port, and it should not exceed the amount specified for the port in the third column of the Schedule. **W.A. No. 1499 of 2016** **6** 14. The Government may, by notification in the Official Gazette, as permitted by sub-section (2), alter or add to any entry in the First Schedule, relating to the ports. In other words, any altering of the port dues must be after due notification in the official gazette. Further examined, to modify every step or measure under section 33, the Government must duly notify it. Besides, sub-section (5) mandates that an order increasing or imposing port-dues under this section shall not take effect till 30-days’ period expires from the day on which the order was published in the Official Gazette. ## **(c) Fees for Pilotage and Certain Other Services:** 15. Section 35 of the Act prescribed the fees for pilotage and ‘certain other services.’ The Provision empowers the Government to charge any vessel for pilotage, hauling, mooring, re-mooring, hooking, measuring, and other service rendered to vessels, at such rates as the Government may direct. The fees thus chargeable will continue, as declared in sub-section (2), to be chargeable until they are altered. 16. Indeed, this provision alone does not speak about previous publication. Then, will it clinch the issue? We will see. ## **(d) Publication of Government Orders:** 17. Section 68, under Supplemental Provisions, unmistakably asserts that the Government must publish in the Official Gazette every **W.A. No. 1499 of 2016** **7** declaration, order and rule it makes under this Act. It should also keep a copy in the office of the conservator and at the custom-house, if any, of every port to which the declaration, order or rule relates. So it will be accessible to any person. ## **The Paradigm of Publication:** 18. Ignorant of fact excuses — ignorance of the law does not excuse. This maxim signifies that ignorance may be either of law or fact. Presumption of legal knowledge may be a common law canon, but it has its limitations. Indeed, ignorance of the law often in reality exists. This doctrine is used in a qualified sense, and only when the rules of practice or strictly adhered to. The Broom’s Legal Maxims (192) quotes Scrutton, L. J., Who once said: it is impossible to know all the statutory law, and not very possible to know all the common law. ## **(a) The UK:** 19. In _Evans v. Bartlam,_ Lord Atkin has aptly put this point in context. According to him, there is not and never has been a presumption that everyone knows the law. It is a maxim of very different scope and application. Knowledge or awareness presupposes dissemination of information, in the first place. In the days of yore, a compact, idyllic England had a languorous legislative output. Then, the prolific delegated legislation was unknown; every legislative device was a royal **W.A. No. 1499 of 2016** **8** proclamation. So, only at the peril of a man’s discarding his source of knowledge, this presumption prevails. Some have felt it even an important facet of the rule of law. 20. Domatt observes, as quoted in CK Thakker’s _Administrative Law_[1] _,_ that “all laws ought either to be known or at least laid open to the knowledge of all the world in such a manner, that no one may impunity offended against them, under pretence of ignorance.” 21 _. Johnson v. Sargant_[2] is one of the earliest English decisions that underlined the importance of publishing the delegated legislation. Thereafter, the English approach has been ambivalent. Wade & Forsyth in their celebrated treatise, _Administrative Law,_[3] have said that the very justification for the basic maxim is that “the whole of our law, written or unwritten, is accessible to the public—in the sense, of course, that, at any rate, its legal advisers have access to it, at any moment, as of right. Wade et al. note the changes the doctrine of publication underwent in the light of the statutory instruments act 1946. 22. The Statutory Instruments Act contains specific provisions to publish the statutory instruments so that the public would know of the delegated legislation. It has, in fact, exempted certain pieces of subordinate legislation from the rigour of publication. Barring those exempted, every > 3. Oxford, 10[th] Ed. 1. EBC., p.213 2. (1918) 1 KB 101 **W.A. No. 1499 of 2016** **9** other statutory instrument must be published. 23. True, under English administrative practices, in classifying the legislation and in compelling publication, there are certain decisional anomalies and ambiguities, as are present in India, too. ## **(b) The USA:** 24. The practice prevalent in the USA about publishing the delegated legislation presents that not so many difficulties as does England. Schwartz in his _Administrative Law_[4] clarifies that the maxim that ignorance of the law is no excuse is as applicable to rules and regulations as to statutes. Such a result is bearable only if there is adequate missionary for publication of rules and regulations so that they may be readily accessible to those affected. The learned author further comments that it would be intolerable if bureaucrats in Washington or the state capitals poured forth streams of administrative legislation that nobody had any means of knowing. In this context he quotes _Goodlove V. Logan_[5] : “[H]ow is the individual using the highways to know what rules and regulations the highway commission passes?… About the only way that one could be certain as to what the rules and regulations were… Would be to telephone the highway commission every time one started on a journey, and, if their journey were to be a long one, a wise and cautious individual would put in a telephone call before starting on the return journey.” 25. Like England, the USA, too, has a statutory scheme for publication: The Federal Register Act 1935. In _Federal Corp. Insurance_ 4. (3[rd] Ed., p.207) 5. (251 N.W. 39, 43 (Iowa 1933) **W.A. No. 1499 of 2016** **10** _Corp. v. Merrill_[6] the US Supreme Court has held that once a valid regulation has been published in the Federal Register, it is legally binding upon those subject to it, even though they are wholly ignorant of its existence. The piece of legislation involves, in that case, crop insurance, involving farmers. Underlining the farmers’ predicament, Justice Jackson delivered a stinging dissent: [T]o my mind, it is an absurdity to hold that every Pharma who ensures his crops knows what the Federal Register contains or even knows that there is such a publication. If you were to pursue this voluminous and Dell publication as it is issued from time to time in order to make sure whether anything has been promulgated that affects his rights, he would never need crop insurance, but you’d never get time to plant any crops. 26. Schwartz seems sympathetic to that view but wonders how difficult it is for the court to reach any other conclusion. So we may sum up the American position: the subordinate legislation duly published, the affected person’s ignorance about the rule or regulation is inconsequential. **India:** 27. To begin with, unlike England and the USA, we have no statutory provision stipulating publication of delegated legislation. The earliest case from India is _Harla v. State of Rajasthan_[7] . 28. To summarize the Indian practice, the observations in _The Principles of Administrative Law_ by M. P. Jain & S. N. Jain[8] are > 8. LexisNexis, Vol.1, 7[th] Ed., p.160. 6. (332 US 380 (1947) 7. AIR 1951 SC 467 **W.A. No. 1499 of 2016** **11** instructive. According to the learned authors, publication of the rules (or delegated legislation) is regarded an essential requirement for their validity in India. In _Harla_ the law made by the Executive had remained buried in the Government archives without its ever seeing the light of the day. There was no law at the time requiring publication when that piece of law was made. But the Supreme Court held the law without adequate publication to be invalid. The Court emphasized that the promulgation or publication of some reasonable sort is essential to bring a law into force as it would be against natural justice to punish people under a law of which they had no knowledge and of which they could not, even by exercising reasonable diligence, have acquired any knowledge. 29. In _B.K. Srinivasan v. State of Karnataka_[9] , the Act requited the delegated legislation to be published. The authorities did publish. Still the Supreme Court observed, in line with _Harlas's_ case, that publication in some form is necessary for making the delegated legislation effective. The Court also observed that if the Act or the delegated legislation itself prescribes the mode of publication, that mode of publication should be adopted. And if no mode of publication is prescribed, the publication should be in the Official Gazette or in some other reasonable form. 30. Occasionally, a statutory provision may require a rule or regulation to be published for the benefit of the affected or likely to be 9. AIR 1987 SC 1059 **W.A. No. 1499 of 2016** **12** effected. But it may not specify the language of publication. In one such instance— _State of Orissa v. Sridhar Kumar_[10] —the Supreme Court noticed that, though the publication in the local newspapers, it was in English. The Court quashed the notification; it held that the publication, not in the vernacular, did not served the intended purpose—the dissemination of information, because most people likely to be affected were unable to read the notification. 31. _Sridhar Kumar_ marks a distinct advance in the courts’ insisting on scrupulous compliance with the objective of effective publication. 32. To proceed further, first, we may acknowledge that where the parent statute prescribes the mode of publication or promulgation, that mode must be followed. But where the mode of publication is not prescribed, the publication must be in some usual or recognized mode, to bring it to the knowledge of all persons concerned. So holds _T Narasimhulu v. State of A.P._ (2010) 6 SCC 545 paragraph 17. 33. _Govindlal v. Agriculture Produce Market Committee_[11] is one example that underlines the primacy of publication. In Govindlal the Supreme Court has held that (a) the subordinate legislation may affect the valuable rights of trade and commerce, and its violation may inflict penal consequences; (b) publication in newspaper usually attracts greater 10. AIR 1985 SC 1411 11. AIR 1976 SC 263 **W.A. No. 1499 of 2016** **13** attention than publication in the Official Gazette; (c) if the statute itself devises adequate means of due publicity, then there is no reason to depart from the mode prescribed by the legislature. 34. Important and inevitable as the delegated legislation is, _Govindlal_ lays great emphasis on the authority’s complying with the statutory requirement of publishing the rules, regulations, and so forth. Failure to publish them, as required by the parent Statute, cannot be cured by invoking, say, the doctrine of constructive notice of the issue. ## **Law Applied to the Facts:** 35. To begin with, there is an element of uncertainty, as sought to be expounded by the learned Government Pleader: Was the Company made to pay the charges under Section 33 or Section 35 of the Act? Even when we were prepared to take that the charges were levied under Section 35, we are afraid it would little alter the position. Section 6 of the Act concerns the rule making power of the Government. It encompasses, under clause (jja), fixing the rates to be paid for the use of the piers, jetties, landing places, wharves, and so forth, in any port, other than a major port, belonging to the Government. 36. Sub-section (2) of Section 6 mandates that the power to make rules under sub-section (1) is subject to the condition of the rules being made after previous publication. And sub-section (2A) of Section 6 reads **W.A. No. 1499 of 2016** **14** to the effect that every rule made by the State Government under this Act shall be laid as soon as may be after it is made, before the State Legislature. Sub-sections (2B) and (3) also emphasize the duty cast on the Government regarding publication. 37. The learned Government Pleader has tried to draw a fine line of distinction between section 33 and section 35 of the Act. Section 33 concerns levy of port dues. According to learned Government Pleader, what is being levied on the Company cannot be termed port dues, which could be levied only on the vessels entering the port. According to him, the charge was towards the services rendered by the port to a vessel under repair. Sub-section (5) of Section 33 concerns imposing of or increasing port dues, and they should not take effect until the 30-day period expires from the day when the order was published in the Official Gazette. 38. If at all Ext.P7 is to be reckoned as increasing or imposing port dues, first, we must reckon that the rates mentioned it Ext.P7 vary from those mentioned in Exts.P2 and P3. Yet the enhanced rates had not been published in the official Gazette. So Ext.P7 coming into force after a 30day period does not arise. 39. Section 35 examined, we realize that the services covered are pilotage, hauling, mooring, remooring, hooking, measuring and other services. But, perhaps, as contended by the learned Government Pleader, **W.A. No. 1499 of 2016** **15** the provision is expansive and covers unspecified ‘other services’. And berthing charges, according to him, could be covered under this provision. Still, we cannot persuade ourselves to hold that section 35 escapes the rigour of pre-publication. For this purpose, we may as well refer to section 68. 40. Indeed, in a sweeping manner, section 68 mandates that every declaration, order, and the rule of a Government made under this Act is to be published in the Official Gazette, and a copy must be kept in the office of the conservator and at the custom-house, if any, of every port. 41. We cannot dispute that the Government has brought about Ext.P7 through an order. And, in our view, that falls within the mischief of section 68. So long as the statutory mandate is clear and unambiguous, we cannot resort to any strained interpretation just because the consequences would be onerous. Therefore, we hold that Ext. P7 falls foul of section 68 and could not have taken effect without publication. 42. As seen from the records, the Company has already paid the charges, under protest though. So long as the Ext.P7 remains unpublished and, thus, not brought into force, the Company must succeed in its claim to refund—refund of the changes it paid over and above what it had agreed to pay under Exts.P3 & P4: Rs.700/- per day. **W.A. No. 1499 of 2016** **16** Therefore, we dismiss the writ appeal, upholding the impugned judgment, besides directing the appellant to repay to the respondent Company—expeditiously within three months from today—the charges it had collected in excess. Sd/Antony Dominic, Chief Justice Sd/Dama Seshadri Naidu, Judge sou.20/3.