Orissa High Court
Keonjhar Nava Nirman Parishad vs Union Of India & 3 Others. .......... ... on 25 November, 2011
Author: V.Gopala Gowda
Bench: V.Gopala Gowda
HIGH COURT OF ORISSA : CUTTACK
W.P.(C.) NOS. 3323 & 17028 OF 2011
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In the matter of applications under Articles 226 and 227 of the
Constitution of India.
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IN W.P.(c) No. 3323 OF 2011
Keonjhar Nava Nirman Parishad .......... Petitioner.
-Versus-
Union of India & 3 Others. .......... Opposite parties.
IN W.P.(c) No. 17028 OF 2011
M/s. Subarnarekha Port Pvt. Ltd. & 2 Ors. ....... Petitioners.
-Versus-
Union of India & 2 Others. .......... Opposite parties.
For petitioner (s):
M/s. Narsingh Mishra, R.K. Pradhan, S.N.
Panda, B.K. Baral.
(in W.P.(C) No. 3323 of 2011)
Mr. Sanjay Sen, Sr. Adv,
M/s. S. Ratho, D. Mishra, J. Dash, & M.K.
Das. (In W.P.(C) No. 17028 of 2011)
For Opp. Parties : Mr. Parag Tripathi, Addl. Solicitor General
Mr. Sakti Dhar Das, Asst. Solicitor General.
(for Union of India in both the writ petitions)
Mr. Ashok Mohanty, Advocate General.
(for O.P. No.2 -State of Orissa in both writ
petitions)
Mr. S.K. Kapur, Sr. Advocate,
M/s. S.K. Sarangi, B. Behera, J. Acharya &
A.K. Jena.
(for O.P.No.3 in both writ petitions)
M/s. A.K. Parija, S.P. Sarangi, B.C. Mohanty,
D.K. Das, P.K. Dash, & R.K. Tripathy.
(for intervenor-O.P.No.4 in W.P.(C) 3323/2011)
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P R E S E N T:
THE HONOURABLE CHIEF JUSTICE MR. V.GOPALA GOWDA,
AND
THE HONOURABLE MR. JUSTICE B.N. MAHAPATRA
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Date of Judgment : 25 -11-2011
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V. GOPALA GOWDA,C.J. The first writ petition (W.P.(c) No. 3323 of 2011)
has been filed as a Public Interest Litigation by the petitioner-
organization, which is claiming to be a registered organization and is
engaged in taking up various common problems of the people for
seeking redressal thereof. The second writ petition (W.P.(C) No.
17028 of 2011) has been filed by the petitioners M/s Subarnarekha
Port Pvt. Ltd. and two other associate companies which are companies
incorporated under the Companies Act, 1956 and engaged by the
Government of Orissa for development of the Subarnarekha Port
project vide MOU executed on 11.01.2008 and which have made
substantial investments in the development of the Subarnarekha Port
and therefore, they are severely affected and prejudiced by the illegal
and arbitrary action on the part of the opposite parties.
2. Both the writ petitions have been filed questioning the
correctness of the Notification No. 2609(E) dated 22.10.2010 issued
by the Central Government in exercise of power under Section 5 of the
Indian Ports Act, 1908 and Section 2 (q) of the Major Port Trust Act,
1963 and Notification No. Adm/01250/VI dated 10.11.2010 issued by
the Kolkata Port Trust (hereinafter called the 'KOPT') in exercise of
power conferred by Section 132(2) of the Major Port Trusts Act, 1963
and contending that altering the limits of the Port of Kolkata to the
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detriment of the interest of the people of Orissa as well as Orissa
State and therefore the impugned notifications are perverse, malafide,
vitiated with arbitrariness and suffer from violation of Articles 14 and
245 of the Constitution of India as well as federalism and the principle
of separation of powers which are the basic structure of the
constitution.
3. The grievance of the petitioner in first writ petition is that
as a result of the said notifications the extension of Kolkata Port limits
will not only jeopardize the development of ports in Orissa coast and
severely limits the maritime activities in the State but also have
serious ramification for the coastal environment. It will also deprive
the livelihood of lakhs of people of Orissa State.
4. The grievance of the petitioners in the second writ petition
is that the Central Government by the impugned notification dated
22.10.2010 has altered/extended southwards port area limits of the
Kolkata Port Trust (hereinafter called the "KOPT") as a result of which
200 kilometers south of Haldia into the Bay of Bengal covering around
28,646 Sq. kilometers has been included in the navigable limits of the
KOPT and as a result the area of several Minor Ports in north Orissa
including the Port area limits of Subarnarekha Port which is being
developed by the petitioner under an agreement dated 11.01.2008
executed with the Government of Orissa stands encroached upon by
the KOPT. Apart from that the impugned notifications infringed upon
the sovereignty of the State of Orissa over its coastal water and is also
directly and substantially in conflict with a subsisting notification dated
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1.12.2009 issued by the Government of Orissa under Section 5 of the
Indian Ports Act, 1908.
5. The case of the petitioner in first writ petition in brief is
that the State of Orissa, which is endowed with a vast coastline, was
historically renowned for its great ports and maritime activities
stretching far offs. History bears ample testimony of the prosperity of
the ancient Orissa emanating from predominantly maritime activities
and sea trades. The modern State of Orissa, which is one of the
poorest States in Indian Union, is also trying to revive and establish
new ports to exploit the sea trades for greater economic benefits of its
millions of poor. It is stated that apart from its deep sea port at
Paradeep, which is a major port, the Government of Orissa has
already notified seven non-major ports in northern parts of the State,
namely, Dhamra, Chudamani, Chandipur, Inchudi, Subarnarekha
mouth, Bichitrapur and Bahabalpur to give a fillip to maritime
activities of Orissa coast and to support a vast hinterland containing
huge mineral resources and mineral based industries. While the
Dhamara port is nearing completion, all other ports are in different
stages of development. It is stated that India comprises of 13 major
ports and around 176 non-major ports along the coast and islands.
The Major Ports are under the Union List (Schedule VII) whereas the
other ports are under the Concurrent List (Schedule VII) of the
Constitution of India. The 13 major ports are administered by the
Central Government under Ministry of Shipping and the remaining
other ports which are referred to as non-major ports are administered
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by the nine maritime States and three Union territories within their
respective coastlines. The total volume of traffic handled by all the
India Ports during 2009-10 was 849.9 million tones. Non-major ports
account for around one-third of the total seaborne trade. The growth
in cargo handled at Major and Non-major ports in 2009-10 was 5.8%
and 35.4% respectively as compared to 2.2% and 3.3% achieved in
2008-09. The phenomenal growth in the cargo handling at non-major
ports in the past year shows the importance of non-major ports in the
over all economic development. As per current indications, non-
major ports will have an edge over major ports due to their growth
rates as a number of green field ports are coming up with huge
capacities through private sector in non-major ports. The
effectiveness of non-major ports in meeting the growing volume of
cargo traffic cannot be overemphasized. Recognizing the importance
of non-major ports, many maritime states have launched initiatives
for their development, through the participation of private sector.
This has led to significant growth in the cargo capacity and cargo
traffic handled by the non-major ports in the past few years. It is
stated that Orissa lags away behind other maritime States in
developing other ports (non-major ports) and Orissa's share in the
maritime trade is negligible. While the role of non-major ports in the
overall economic development cannot be overstated, there is lot to be
done by the State Government and the Central Government to
increase Orissa's share in the maritime activities which would lead to
economic development in this under developed State.
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6. It is submitted by Mr. Narasingh Mishra, learned Senior
Counsel for the petitioner that while the country needs more ports for
its economic development and the Central Government should extend
all help for development of non-major ports exploiting long coast line
of the State of Orissa, the Opposite party No.1-Union of India is trying
to scuttle such development of non-major ports of Orissa coast in
stead through arbitrary extension of Kolkata port limits into Orissa
territory. In the maritime agenda 2010-20, the Central Government
recognized the need for development of non-major ports in Orissa and
it was clearly stipulated in the agenda that the east coast ports are
expected to handle over 75% of future imports with the ports in
Orissa and Andhra Pradesh accounting for much of the traffic owing to
steelmaking capacity being largely located in this region. Therefore,
after recognition of such need and future projection, the extension of
the jurisdiction of Kolkata Port by the impugned notifications is wholly
unjustified as it is a colourable exercise of power and mala fide and
illegal being vitiated with arbitrariness and abuse of power by
discriminatory action of the opp. Party No.1. It is submitted that as
per the report published in the 'New Indian Express' dated
01.02.2011, the arbitrary extension of Kolkata Port limits is a design
to bail out shipping companies who want to use their old vessels for
transloading operations. The report points out that the notification for
extension of Kolkata port limit coincided with invitation by the Kolkata
Port regarding the application for transloading. Bigger vessels which
cannot come to Kolkata due to shallow draft, would now berth in the
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Orissa coast and unload cargo to transloaders (old vessels) which
would act as floating stock yards. It is stated that such transloading
operation involving old vessels will result in increasing environmental
pollution of Orissa coast with devastating consequences for its people
living at coastal areas.
7. It is further submitted by Mr. Narasingh Mishra, learned
Sr. Counsel for the petitioner that when the country needs more port
capacity, the approach of the Central Government-Opp. Party No.1 to
extend the Kolkata Port Limit is laced with naked favoritism to KOPT.
To add few extra million tones to the capacity of the Kolkata Port, the
Central Government is jeopardizing the development of seven modern
ports in Orissa, each of which can handle much larger quantity of
cargo after completion. The Central Government by extending the
limit of KOPT into Orissa territory, deliberately intrude upon the
State's sphere. The law is well settled that federalism in the Indian
Constitution is not a matter of administrative convenience, but one of
the principle, the outcome of historical process and a recognition of
ground realities. The interpretation of Entries can afford to remove
imbalance, so far as it can. Any conscious whittling down of the
power of the State can be guarded against by the Courts. It is further
submitted that the treatment of Kolkata Port in a preferential manner
and allow the newer ports in Orissa to die natural death by the Central
Government is wholly unjustified and illegal. It is also against larger
public interest. It would have serious repercussion on the economy of
the State of Orissa and deprive the livelihood of its lakhs of people,
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therefore, the impugned notifications are malafide, without any cogent
material to support it and is based on mere ipse dixit and it is prayed
that the impugned notifications are liable to be quashed.
8. The case of the petitioners in the second writ petition in
brief is that not only the petitioners but also the Government of Orissa
are taking substantial steps towards ensuring development of the
project by processing request for handing over the land and taking
other steps as envisaged under the Concession Agreement-MOU
including steps to secure environment clearance for the project. The
Government of Orissa has expressly notified the Port area limits of the
Subarnarekha Port by a notification (being Notification No. 8027-GPP-
128-06/Com) dated 1.12.2009 in exercise of power under Section 5 of
the Indian Ports Act, 1908. It is alleged that the KOPT, which is the
beneficiary of the illegal action on the part of the Central Government,
has illegally conspired with the Central Goernment to extend its
jurisdiction over the Port area limit previously notified for other ports
in Orissa including the Port area limit of Subarnarekha Port with an
ulterior motive to secure its own commercial interest at the cost of the
development of other ports in the State of Orissa. The KOPT
certainly does not want any developement of Minor other ports in
Orissa coast because the traffic will get diverted and there is likelihood
of loss of revenue as a result thereof. The KOPT after securing the
Notification of the Central Government issued a Notification on
10.11.2010 under Section 132(2) of the Major Ports Act, 1963
whereby it has sought to give effect to the Notification issued by the
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Central Government on 22.10.2010. The KOPT in its impugned
notification dated 10.11.2010 acknowledges that the Central
Government has amended its earlier notification dated 19.06.2001.
As a result of such notifications the Subarnarekha Port will cease to
exist as an independent non-major port as its entire port limit will now
be under the jurisdiction and control of the KOPT. It is stated that
Entry-27 in List-I of Schedule VII of the Constitution of India relates to
Ports which are declared as Major Ports in terms of the Major Port
Trusts Act, 1963 and Entry 31 in the List III of Schedule VII of the
Constitution of India relates to Ports other than major ports. By virtue
of that, Subarnarekha Port being a non-major port (other port) falling
within the coastline of the State of Orissa, the Government of Orissa
has the competence to legislate all necessary legislations and issue
notifications in relation to the minor ports in Orissa. The Government
of Orissa vide its Notification dated 5.4.1997 notified the port limits for
the ports at Subarnarekha Mouth, Chudamani, Chandipur, Inchuri,
Astaranga, Baliharichandi, Palur and Bahuda. Hence the decision of
the State Government to create/ develop Minor Ports in the northern
part of the State's coastline was well established as early as 1997.
On 19.06.2001, the Central Government issued a notification bearing
No. GSR 439(E) revising the Port area limits of the KOPT. The said
notification revised the limits of the navigable channel to facilitate its
trans-loading operations at Sandheads. This identifies an area for fair
weather trans-loading operations in deep waters around the 20 m.
contour and is far away from the Orissa coast. The said notification
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prescribes a western limit of 87 Degrees 40'E and this limit ends at
the eastern limit of the Subarnarekha Port of Orissa.
Mr. Sen, learned Sr. Counsel for the petitioners in 2nd writ
petition submitted that, the Central Government was well aware of its
jurisdictional limits and did not seek to encroach on the coastal waters
of the State of Orissa while revising the port area limits of the KOPT.
The said notification dated 19.06.2001 issued by the Central
Government does not in any manner interfere with the ports limits in
northern Orissa and all such ports had access to the open sea. The
2001 Notification of the Central Government which defines the port
area of KOPT constituted a representation and expression of intent to
the State Government as well as the private investors, such as the
petitioners for enabling development of minor ports in Orissa under
the guidance of the State Government. It is submitted that the map
will disclose the impact of the impugned notification dated 22.10.2010
which illegally revises the earlier notification of 19.06.2001 and
encroaches on the port area limits of the Subarnarekha Port and how
the KOPT violated the jurisdictional sovereignty of the State of Orissa
over its coastal waters. It is stated that the Government of India
which accepted the earlier stand of the State Government, now in
colourable exercise of power has tried to circumvent the right, title
and interest of the State of Orissa and the private concessionaire by
issuing the impugned notification dated 22.10.2010.
9. It is further submitted by Mr. Sen, learned Sr. Counsel
that when the promoters and the new financial partner had resolved
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all outstanding issues and were focusing entirely on the
implementation of the Subarnarekha Port Project, the Central
Government without prior notice or intimation, has issued the
impugned notification dated 22.10.2010 altering/extending
southwards jurisdictional limits of the KOPT, as a result, the entire
port area limits of the Subarnarekha port has been encroached upon
by the KOPT and as such Subarnarekha Port project is left without any
port area limit of its own to allow entry or exit of ships/ vessels. The
impugned notifications in effect are to take away the vested rights of
the petitioners as well as the State Government. Therefore, it is
submitted by Mr. Sen, learned Sr. Counsel that the notification dated
22.10.2010 issued by the Central Government is illegal as the Central
Government has no jurisdiction to unilaterally modify port limits in a
manner which takes away the area already notified for other ports in
the region. The State Government is the competent authority to
notify the port area limits of minor ports within its territorial
jurisdiction. Therefore, the Government of Orissa in exercise of power
under Section 5 of the Indian Ports Act issued a notification on
1.12.2009 in relation to the port area limit of the Subarnarekha port
and the said notification is presently valid and subsisting. For that
reason, it is submitted that, in relation to the other ports (non-major),
the notification of the State Government dated 1.12.2009 occupies the
field and there cannot be a subsequent notification of the Central
Government altering the decision of the State Government in relation
to the limit of the port area of the other ports (non-major ports). It is
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further submitted that the Central Government does not have the
jurisdiction over the State Government's notification dated 1.12.2009
in relation to the port area limits of non-major ports and such action
of the Central Government is excess of jurisdiction and hence it is
arbitrary and in colourable exercise of power and hence it is liable to
be quashed.
10. Mr. Narasingh Mishra, learned Sr. counsel for the
petitioner contended that the impugned notifications challenged by the
petitioner in the Public Interest Litigation petition will affect the
economic development of the Orissa State as the extension of the
KOPT limits 200 k.m. south of Haldia, is going to block the entire coast
of North Orissa where seven ports, namely, Dhamara, Chudamani,
Chandipur, Inchudi, Subarnarekha South, Bichitrapur, & Bahabalpur
are in different stages of development. By extending the limits of
KOPT, access of vessels to the aforesaid ports will be blocked. By an
additional affidavit dated 5.5.2011 the petitioner has submitted that
extension of area of KOPT will deprive employment to the people of
Orissa, besides loss of revenue to the State. It is submitted in the
additional affidavit that the revenue loss to the State will be
approximately Rs.684 crores per year and loss of employment would
approximately be 875. Therefore, the extension of the area of KOPT
by the impugned notifications will definitely affect the interest of the
people of Orissa. So far as the attempt has been made by the Union
of India and KOPT during their submission to the court that since
there is no physical obstruction, entering of vessels, to the non-major
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ports, will not be prevented in any way is not at all correct. Learned
counsel for the petitioner, referring to Section 31 of the Indian Ports
Act and Sections 38, 49(B) and Section 50(B) of the Major Port Trust
Act and paragraph 30 of the writ petition, contended that the
averments made by the petitioner in the first writ petition at
paragraphs 9 and 30 and in paragraphs 1 to 4 of the additional
affidavit dated 5.5.2011 have not been disputed either by the Union of
India or by KOPT. Therefore, there is no dispute that entering of
vessels to seven non-major ports of Orissa coast will be subjected to
the control of the KOPT i.e. O.P. No.3 if the impugned notifications are
not quashed.
11. It is further submitted by Mr. Mishra, learned Sr.counsel
that Port limits are notified under the Indian ports Act, 1908 and
Sections 4 & 5 of the said Act provide for notification and alteration of
Port limits. It may be seen that Section 4 lays down although in a
disjointed manner, the purposes for which Port limits are fixed, they
include : (1) to cover any part of any navigable river or Channel
which leads to port (Section 4.1.a); (2) Section 4.3 defines
"Convenience of traffic"; (3) Section 4.3 defines "Safety of Vessels";
(4) "Maintenance of the good governance of the port and its
approaches" (Section 4.3) Section 5 provides for alteration of Port
Limits, but it would be prudent to infer that the alteration serves the
same purposes as fixation under Section 4.2. The Government
under Sections 4 & 5 of the Indian ports Act can fix port limits.
"Government" has been defined in Section 3(9) as Central
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Government for 'Major Ports' and State Government for 'other Ports'
so far as the power of fixing or altering limits is concerned. Since both
the Governments derive their powers from the same Central
legislation, the powers can be said to be equal in respect of the ports
under each one's control.
12. Mr. Narasingh Mishra, learned Sr. Counsel submitted that
the KOPT limits were last fixed/altered in 1977, 2001 and then 2010. A
perusal and comparison of these notifications would show that the
notifications have three parts- one pertaining to the port per se, the
other pertaining to rivers and channels leading to the port. However,
the limits of all the three above constitute port limits under the Indian
Ports Act which include rivers and channels leading to the port. It is in
respect of these rivers of Kolkata port has been substantially extended
and expanded in 2010 so much so that it encroaches into the pre
notified limits of certain ports and even the onshore location of two of
the proposed ports and in all cases it surrounds the ports of Orissa
north of Paradeep in such a manner that no ship can enter these ports
without passing through the Kolkata port limits. Mr. Mishra, learned Sr.
Counsel contended that the extension of port limits of KOPT is grossly
illegal for following more reasons that the extended limits encroach into
the pre notified limits of number of ports of Orissa including the
onshore location of two of the proposed ports. The contention of the
opposite parties to the effect that a central notification overrides a
notification of the State Government is misleading and not at all
correct. The question of repugnancy or overriding due to conflict
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between central law and State law, would arise when there is a conflict
between the two laws. In the instant case all the notifications, both of
the State and Union Governments are under the same provision of the
same central law which gives power to the appropriate Government to
notify the port limits and the State Government of Orissa has
appropriately and legally notified the limits of the ports of Orissa in
exercise of its constitutional powers and powers conferred under the
statute. Opposing the contention of the opposite parties that the
extension of KOPT is purely for transloading, Mr. Mishra submitted that
it is purely unacceptable for the reason that it is not the provisions of
Indian Ports Act and Indian Major Ports Act. It provides levy of charge
on every ship passing through the port limits of Kolkata. Further, so
far as transloading is concerned, it is not necessary that transloading to
take place within the port limits of receiving port, such transloading can
take place within the limits of any other ports.
13. The Indian Ports Act, 1908 is a Central legislation, under
which certain powers are vested in the State Government and once
the power vested in the State Government is exercised under Section
5 of the Indian Ports Act, the right has accrued and such right can not
be divested by a notification issued by the Central Government. On a
reading of the provisions of the Indian Ports Act, it cannot be
contended that there is any conflict of power between the State
Government and Central Government. The power of the State
Government and Central Government has been clearly defined by a
Central legislation and therefore, it is binding both on the Central
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Govt. and State Government and once the vested power with the
State Government is exercised fixing and notifying the port area, such
notification cannot be cancelled or modified by the executive action
such as by issuing the notification by the Central Government. It is
further submitted that before issuing the impugned notification dated
22.10.2010, the Union of India should have consulted and discussed
with the Government of Orissa. However, instead of doing that, it is
now contended that the Union of India is willing and prepared to direct
O.P. No3-KOPT not to charge any fee for using the KOPT area, which is
quite illegal and such statement indicates that the Central Government
is admitting its mistake. The mandate of law as enumerated in Section
31 of the Indian Ports Act and Sections 49(B) and 50(B) of the Major
Port Trust Act cannot be taken away, either by any executive
instruction or by any notification of the Central Government.
Therefore, it is submitted by Mr. Narasingh Mishra, learned Sr. Counsel
that the impugned notifications are liable to be quashed.
14. On behalf of the Government of Orissa, counter affidavit
has also been filed supporting the case of the petitioners. It is
submitted by the learned Advocate General Mr. Ashok Mohanty that
the main constitutional issue involved in these cases is when the
Notifications are issued by the Government of Orissa in exercise of its
power under Section 5 of the Indian Ports Act, 1908 for development
of other ports in its north coast at Dhamra, Chudamani, Inchudi,
Chandipur, Bahabalpur, Subarnarekha mouth and Bichitrapur vide
Notification Nos. 1691 dated 11.3.1998, 2380 dated 5.4.1997, 2780
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dated 5.4.1997, 5230 dated 3.4.1991, 8027 dated 01.12.2009 and
7847 dated 24.11.2009 respectively and are still in force and duly
recognized by various Departments of the Government of India, can
the Ministry of Shipping, Government of India, issue the impugned
notification 22.10.2010 delimiting /altering the limits of the KOPT
encroaching upon the limit of such ports notified and developed by the
Government of Orissa.
15. Learned Advocate General submitted that the Government
of India as well as the KOPT for some obvious reasons have issued the
impugned notifications claiming the entire northern coastal territory of
Orissa State whereby taking away the constitutional & statutory rights
of the State of Orissa without following any procedure known under
the law and the said unilateral act of Union of India in the guise of
delimiting the KOPT is per se illegal, unconstitutional, arbitrary and
without jurisdiction and therefore, the same are liable to be quashed.
It is further submitted that the Government of Orissa have
no other way than to support the cause of the petitioners as the
matter could not be resolved administratively in the discussion with
the Union Government. The State Government have tried their level
best to administratively resolve the so called dispute through
negotiations with the Union Ministry of Shipping and in this regard
several rounds of discussions were held, but the matter could not be
settled. It is the submission of the Union of India & KOPT that the
terms and purpose and intent of the notification is that it will facilitate
transloading for KOPT. However, they lost their sight to the extent
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that for the purpose of transloading no prudent Government would
issue such a notification which would have greater ramification and
resultant damages would be more on the part of the State of Orissa.
Therefore, it is crystal clear that either there is no valid reason or
there must be some malafide motive behind the notifications which
was never disclosed by the Union of India & KoPT. The Union of India
and KoPT have exceeded their jurisdiction in issuing the impugned
notifications. Admittedly, the Government of Orissa had issued valid
notifications as stated earlier completely in accordance with Section 5
of the Indian Ports Act, 1908 under the power and authority
guaranteed under Entries 31 & 32 of List III of Schedule VII of the
Constitution of India which is also recognized by the Union of India
and the same has been acted upon. The impugned notifications have
been issued encroaching upon the territorial jurisdiction of the
Government of Orissa and giving a complete go bye to the provisions
of law. The collusive submissions made by the Union of India & KOPT
would only demonstrate an undemocratic, unreasonable and
unconstitutional approach to the effect that the Union of India have
unlimited power and authority to delimit a major port by imposing
unreasonable restriction upon the Government of Orissa, which
matters are exclusively under the purview and control of State
Government under the provisions of Section 3(9) read with Sections 4
& 5 of the Indian Ports Act. Therefore, it is a clear case of excessive
exercise of jurisdiction and power by the Union of India and KOPT in
issuing the impugned notifications and as such the same are liable to
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be set aside.
16. Mr. Mohanty, learned Advocate General further
submitted that the question of "repugnancy" would not arise in this
case since the Government of Orissa exercised its power in accordance
with law as stated supra and has been acted upon and also recognized
by the Union of India. Under these circumstances, the Union of India
has no legislative competence to issue the impugned notification.
Further, there is no restriction imposed under Article 162 of the
Constitution of India against the State of Orissa with regard to the
territorial port claim. The necessary provisions are already available
in Sections 3(9), 4 and 5 of the Indian Ports Act, 1908, which
preceded the Constitution of India, thereby recognizing the State
Government's power, unless and until the parliament passes
subsequent enactment in that regard. The claim of the Union of India
that the Major Port Trust Act, 1963 empowers the Union of India, in
terms of Article 162 is not acceptable, since the said Act deals with the
management and governance of Major Ports and not about fixing the
port limits of Minor Ports.
17. Mr. A.K. Parija, learned Sr. Counsel, on behalf of the
intervener-opp. Party No.4-Dhamara Port, supporting the stand taken by
the petitioners as well as the Government of Orissa contended that the
impugned notifications have been issued by the Central Government and
KOPT in excess of jurisdiction and the same are ultra virus being hit by
Sections 1,3(9), 4 and 5 of the Indian ports Act, 1908.
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18. On the other hand the Union of India-O.P. No.1 in the
Ministry of Shipping & Transport has filed counter affidavit traversing
the averments made by the petitioners in the writ petitions, however
not denied the publication of the impugned notifications. It is stated
in the counter that the entire North Eastern Part of the country
including the land locked countries like Nepal and Bhutan have to
move their cargo through Kolkata Port which is a major port under the
Central Government. However, being a riverine port, that port suffers
from perennial draft restrictions for which most of the large bulk
carriers carrying cargo destined/generated from that port is forced to
make two ports called by lighterage/topping up of approximately
40%-50% of the cargo at Paradeep port, which is then carried by rail
and road to their final destinations. The trade, however, has always
preferred that the entire cargo be brought to Haldia because of law
freight and better rail connectivity as compared to the neighbouring
ports. Moreoever, transportation of cargo by sea is always cheaper
and eco-friendly than the alternative modes of transportation like rail
and road. Therefore, the shipping industry has been requesting the
KOPT to make alternative arrangement for handling the entire cargo
nearer to the port and transport them through sea river route. It is
further stated that in terms of Territorialwaters, Continental Shelf,
Exclusive Economic Zone & Other Maritime Zones Act, 1976, no State
has any jurisdiction on the territorial waters of India and territorial
waters are the exclusive jurisdiction of Central Government.
However, the State of Orissa vehemently opposed KOPT plan to
- 21 -
undertake lighterage operation in 2005 outside the limit of Dhamra
Port on the plea that this would adversely affect the business
prospects of non-major ports on the Orissa coast limits which were
notified by it in an arbitrary manner without due consideration of the
existing limits of other major and non-major ports in the vicinity. The
Government of Orissa also have not consulted the Ministry of Shipping
before issuance of any such notifications.
19. Denying the averments made at paragraphs 1 to 8 of the
writ petition, it is stated by the O.P.No.1 that by extension of the
limits of KOPT there will neither be any physical boundary in the sea
nor will there be any obstruction for the vessels to have free access to
any port of Orissa. KOPT neither intends to handle cargo that is
destined for any Orissa Port nor will impose any restrictions legally or
financially on any vessel destined for other ports for their free passage
while passing through the limits of KOPT. Therefore, the extension of
the limit of KOPT has no bearing whatsoever for movement of ships to
any other port, their operation, further expansion and development.
In reply to paragraph 11 of the writ petition, it is stated that the
transshipment facilities being set up by KOPT could also be gainfully
utilized by the trade carrying cargo for all neighbouring ports. The
transshipment facilities will help the trade in reducing the cost of
import & export as the vessel could be serviced to their full capacities
and thus would overcome the issue of low draft availability. It is
stated that the Government of India has taken a conscious decision to
promote transportation of cargo by barges through the National
- 22 -
Waterways, so as to reduce congestion on rail & road, transportation
cost and to reduce pollution. The transloader and all vessels
associated with the operation will be certified by the statutory
authorities with regard to their safety as well as from pollution angle.
Therefore, there is no scope of any increase in the environmental
pollution as alleged in the writ petition.
20. In reply to paragraphs 13 to 16 of the writ petition, it is
submitted by Mr.P. Tripathi, learned Addl. Solicitor General that the
Central Government is fully empowered to issue such notifications in
exercise of its powers under Section 5 of the Indian Ports Act, 1908
and Clause (q) of Section 2 of the Major Port Trust Act, 1963. The
Central Government has also the powers to alter the limits of any port
by uniting with that port, any other port or any part of any other port
under the provisions of Section 5 of the Indian Ports Act 1908. The
action taken by the Central Government is for the interest of public
and for reducing the outflow of national exchequer towards high cost
of transportation of goods. Therefore, it is prayed that both the writ
petitions are devoid of any merit and liable to be dismissed.
21. One counter affidavit has also been filed by the KOPT-
O.P.No.3 traversing the averments made by the petitioners and
supporting the counter filed by the Union of India. Questioning the
maintainability of the first writ petition, it is stated by the KOPT that
the said writ petition is actually proxy litigation for the purpose of
achieving the private interest of the parties who are in control of the
ports of Dhamra and Chudamani seems to have been similarly
- 23 -
divested by the State of Orissa. It is self evident that no public
interest is intended to be achieved in the above writ petition and it is
therefore fit and proper that the same should be summarily rejected.
It is stated by the KOPT that the territorial waters along
the coast lines do not belong to the coastal states such as Orissa but
are under the exclusive control of the Central Government. No state
has any constitutional powers or rights to define the limits of any port
along its waterfront; and the power to do so is exclusively vested in
the Central Government. In particular, the Government of Orissa has
no power, authority or jurisdiction to fix the limits of the ports along
its waterfront and any action to this effect is out of its jurisdiction.
The KOPT is a major port within the meaning of Major Port Trust Act
and is under the direct control of the Central Government. The limits
of the territorial waters forming part of the KOPT were earlier
prescribed by notifications, the last of which was published in the year
2001 which shows the limits of the KOPT. Thereafter, on 22.10.2010
the Government of India by virtue of powers under Section 5 of the
Indian Ports Act published a Notification prescribing an extension of
the limits of the KOPT in the manner and to the extent specified
therein. Consequent to the said Notification, the KOPT published the
Notification dated 10.11.2010. It is submitted that the said
notifications have been published extending the limits of the KOPT so
as to enable the transloading operation system to be installed and
become functional for the purpose. Therefore, the extension of the
limits of the KOPT has no connection or relevance or bearing
- 24 -
whatsoever with the movement of any ships or vessels to or from any
port of Orissa or the operation, future expansion or development of
any port in Orissa. Traversing the averments made in the writ
petitions, at paragraph 11 of its counter the KOPT stated that the
KOPT has no objection or impediment to put in the way of
development of the State of Orissa or any new ports by the State
Government and any aspersions or allegations in this behalf is wholly
wrong. Therefore, it is submitted that the case of the petitioners is
entirely speculative, pretentious and without any substance and both
the writ petitions are liable to be dismissed.
22. Mr. S.K. Kapur, learned Sr. Counsel on behalf of the KOPT
submitted that the impugned notification is within the jurisdiction of
the Central Government for the reason that "major port" is a subject
matter of Entry 27 of List I of the VIIth Schedule of the Constitution of
India and "other ports" are the subject matter of Entry 31 of List III of
the VIIth Schedule. Hence, whether it be in the Union List (in respect
of Major Ports) or the Concurrent List (in respect of other ports), the
Union Government is constitutionally empowered to legislate in
respect of both. It is submitted that under Section 3(8) of the Indian
Ports Act, the Central Government is empowered to determine as to
which port would be a major port, and under Section 5 of the said Act,
the Central Government is empowered to alter the limits/delineate a
Major Port. After the Central Government notifies and delineates a
"major port", it is only the residuary of the Ports as also the residuary
of the limits which a State Government is empowered to notify for
- 25 -
such 'other ports'. Hence, it is submitted that in the instant case, the
Central Government, having notified the limits of the KoPT, it is only
the residuary or the available area that is available with the State
Government within which it can notify the limits of 'other ports'.
23. It is further submitted by Mr. Kapur, learned Sr. counsel
that the Central Government's power to notify and delineate a Major
Port's limit under Section 5 of the Indian Ports Act is not subservient
to the power of the State Governments to notify the limits of an "other
port". In fact, constitutionally, the primacy vests in the Union of India
cannot be overridden or taken away by exercise of any rights of the
State. Hence only after the Central Government notifies and
delineates a Major Port, could the jurisdiction of the State Government
would commence. It is therefore submitted that, as in the present
case, it is only after the Central Government has notified and
delineated the limits of the KoPT the jurisdiction of the State
Government would commence to delineate the "other ports". It is
clear that if there is any conflict between the two, there can hardly be
any doubt that the Central Government notification under Section 5
would prevail. Mr. Kapur further submitted that notifications are
issued by the Governments as delegates of the legislature. They are
thus delegated legislation. The delegated legislation cannot stand on
a higher footing than legislation. In case of competing legislations
(including delegated legislation ) of the Centre and the States, under
Articles 246 and 254 the legislation of the centre (including delegated
legislation) must supersede and override the legislation (including
- 26 -
delegated legislation) of the State. In this regard, Mr. Kapur, placed
reliance upon the judgment of the Supreme Court in the case of Deep
Chand Vs. State of U.P. & Ors., AIR 1959 SC 648.
24. On the basis of the aforesaid rival legal contentions urged
on behalf of the parties, the following points would arise for our
consideration in these writ petitions.
(1) Whether the exercise of power by the Central
Government in issuing the impugned notification in
relation to Major Port extending/altering the limits of
KOPT encroaching upon the other-ports (non major
ports) in the State of Orissa, which have already been
notified by the State Government fixing its limits in
exercise of its powers under Section 5 of the Indian
Ports Act, 1908, is legal ?
(2) Whether the impugned notification issued by the
Central Government altering the limits of KOPT will
prevail over the notifications issued by the State
Government in relation to the 'other ports' in exercise
of its power and whether such notification can be
treated as repugnant to the notification issued by the
Central Government and the principle of repugnancy as
provided under Article 254 is applicable?
(3) Whether the Central Government in exercise of its
power under Section 5 can alter the limits of any ports
to which the act is inforce or applicable without
consultation with the State Government / lessees who
are having lease hold rights over such other ports and
whether it would be violative of principles of natural
justice ?
(4) Whether the exercise of power by the Central
Government under Section 5 of the Indian Ports Act
- 27 -
invading upon the other ports of the Orissa coastal line
is violative of Article 14 and is arbitrary, unreasonable
and against the doctrine of proportionality ?
(5) Whether the subsequent notification issued by the
KOPT basing on the notification of the Central
Government dated 22.10.2010 and in exercise of power
conferred by Section 132(2) of the Major Port Trusts
Act, 1963 altering the limits of the Port of Kolkata is
legal and valid ?
(6) What order ?
25. Before considering the questions formulated above, it is
necessary to mention here that in the counter affidavit filed in the first
writ petition on behalf of the KOPT certain allegations abusing the
petitioner were made at paragraphs 3(b) to 3(e) which were taken
exception by Mr. Mishra, learned Sr. Counsel for the petitioner, who
submitted on 21.6.2011 that the KOPT may take steps either to delete
those averments which are totally unnecessary for the purpose of
determining the issue in this case, otherwise the Court may exercise
its power under Order 6, Rule 16 of the CPC to strike down the said
averments. By order dated 21.6.2011 this Court directed the KOPT to
justify the said allegation. When the matter was again taken up on
15.9.2011, this Court again directed the KOPT to file affidavit to
substantiate the allegations against the petitioner in the said
paragraphs along with documents. Further on 23.9.2011 the matter
was taken up however the KOPT did not take any steps regarding
deletion of the said allegations nor filed any affidavit substantiating
- 28 -
the same. Starting from 21.6.2011 repeatedly chances were given
directing the KOPT either to produce sufficient documents to
substantiate the allegations against the petitioner at paragraphs 3(b)
to 3(e) of the counter or to file petition for striking down the said
averments. However, till the last date of hearing, KOPT did not
comply with the same. Therefore, we have no other alternative than
to expunge the said allegations and hence the same are expunged.
Point No.1 :
26. This point is required to be answered in favour of the
petitioners and the State Government for the following reasons.
First of all it may be noted the undisputed fact that the
impugned notifications have been issued altering the limits of the
KOPT encroaching upon the other ports area in respect of which
notifications have already been issued by the State Government much
prior to the notifications of the Central Government. It is also evident
from the counter submitted by the Union of India as well as KOPT that
the said notifications have been published extending the limits of the
KOPT so as to enable the transloading operation system and the
purpose and intent of the notifications is that it will facilitate
transloading for KOPT.
27. In view of the legal submissions made by Mr. P. Tripathi,
learned Addl. Solicitor General on behalf of the Union of India, Mr.
Ashok Mohanty, learned Advocate General for the State, Mr. A.K.
Parija, learned Sr. Counsel on behalf of Dharma Port, Mr. Mishra,
learned Sr. Counsel for the petitioner in first writ petition and Mr. Sen,
- 29 -
learned Sr. Counsel for the petitioners in connected 2nd writ petition, it
is necessary to extract the relevant definitions and provision of Indian
Ports Act, 1908 and Major Port Trusts Act, 1963.
28. Section 2(q) of the Major Port Trusts Act, 1963 defines
"port" to mean any major port to which the Act applies within such
limits as may, from time to time, be defined by the Central
Government for the purposes of the Act by notification in the Official
Gazette, and, until a notification is so issued, within such limits as
may have been defined by the Central Government under the
provisions of the Indian Ports Act; where as Section 3(4) of the
Indian Ports Act, 1908 defines "port" includes also any part of a river
or channel in which this Act is for the time being in force. Section
3(8) of the Indian Ports Act defines "major port" means any port
which the Central Government may by notification in the Official
Gazette declare, or may under any law for the time being in force
have declared, to be a major port; and Section 3(9) defines
"Government", as respects major ports, for all purposes, and, as
respects other ports for the purposes of making rules under clause (p)
of section 6(1) and of the appointment and control of port health
officers under section 17, means the Central Government, and save as
aforesaid, means the State Government. Further, the Indian Ports
Act is referable to Entry 31 of List III (Concurrent List) of the Schedule
VII of the Constitution, which reads thus :
"31. Ports other than those declared by or under
law made by Parliament or existing law to be major
ports."
- 30 -
29. In the cases in hand the notifications issued in the year
1977, 2001 and so also the impugned Notification issued by the
Central Government are in relation to Major Port of KOPT at Kolkata in
the West Bengal State and no doubt the same is based on the existing
law, namely, the Indian Ports Act, 1908 but not for 'other ports' (non-
major ports) in respect of which notifications have already been issued
by the State Government much earlier. The said conclusion can be
arrived at by careful reading and interpretation of the statutory
provisions under Section 5 as well as the definition of "Major Port" and
"Government" under Section 3 of the Indian Ports Act, 1908. Section
5 of the Act with its explanation is relevant to be extracted, which
reads thus :
"5. Alteration of limits of ports. (1) The [Government]
may,subject to any rights of private property, alter the
limits of any port in which this Act is in force.
[Explanation.--For the removal of doubts, it is hereby
declared that the power conferred on the Government by
this sub-section includes the power to alter the limits of any
port by uniting with that port any other port or any part of
any other port.]
(2) When the [Government] alters the limits of a port under
sub-section (1), it shall declare or describe, by notification in
the Official Gazette, and by such other means, if any, as it
thinks fit, the precise extent of such limits.
As per the definition clause referred to supra "port" is an exclusive
definition both in respect of 'major ports' and 'other ports' as it defines
any part of a river or the channel in which the Indian Ports Act is for
the time being in force. In respect of the 'major ports' the Central
Government is empowered as per the definition by giving Notification
- 31 -
under Section 5 in the official gazette to declare as such including
alteration of limits of the 'major ports'. A careful reading of definition
of term "Government" under Clause 3(9) so also Section 5 of the
Indian Ports Act, 1908 along with its explanation, referred to supra,
would show that the State Government is empowered to issue
notification and declaration in relation to 'other ports' in the coastal
line of the respective States. In the instant case, it is not in dispute
that the Notification in relation to KOPT which is a major port is issued
/published by the Central Government in the official gazette declaring
as such in exercise of its power under Section 4 and impugned
notification under Section 5 respectively. The State Government also
in relation to seven other ports in the coastal line of Orissa has also
issued notifications as such in exercise of its statutory power under
Section 5 read with Section 3(9) of the Indian Ports Act. Therefore,
it is clear that the State Government has issued the notifications in
accordance with Section 5 of the Indian Ports Act under the power and
authority guaranteed in Entry 31 & 32 of List III of the VIIth Schedule
of the Constitution. Indisputably the Indian Ports Act, 1908 is a pre-
constitutional law which is in existence. The Major Ports are declared
by issuing notification by the Central Government and other ports by
the State Government has to be interpreted in view of the inclusive
definition of Section 3(4) of the Indian ports Act. Therefore, the
notifications issued both by the Central Government in relation to
KOPT and the State Government for other ports is in exercise of their
statutory power under Section 4 & 5 read with Section 3(9) of the
- 32 -
Indian Ports Act. Reliance is placed upon Section 2(q) of the Major
Port Trusts Act, 1963 which is enacted from the Entry 27 of the List I
of the VIIth Schedule. The said entry reads thus :
"27. Ports declared by or under law made by
Parliament or existing law to be major ports, including
their delimitation and the constitution and powers of port
authorities therein."
The definition 'Port' under Section 2(q) of the Major Port
Trusts Act, 1963 is relevant to be extracted, which reads thus :
"2(q) "port" means any major port to which this Act
applies within such limits as may, from time to time, be
defined by the Central Government for the purposes of
this Act by notification in the Official Gazette, and, until a
notification is so issued, within such limits as may have
been defined by the Central Government under the
provisions of the Indian Ports Act."
30. In view of the above, it is clear that the limits of the Major
Port could not be fixed by the Central Government by issuing
notification by encroaching upon the limits of the other ports under
Section 5 of the Indian Ports Act. Further the Major Port Trusts Act,
1963 is from the List-I enacted by the Parliament which is inclusively
applicable to the 'Major Ports'. There is a reference to the notification
in respect of 'Major Ports' and such notification could be only under
Sections 5 of the Indian Ports Act, originally declaring the 'Major ports'
and altering its limit. Therefore, the submissions on behalf of the
Union of India and KOPT, to the extent that the Central Government
has got primacy power over the State Government in
alteration/fixation of the Port limits and for that reason
extending/altering the limits of KOPT by the impugned notification is
- 33 -
perfectly legal and valid, cannot be accepted by this Court. If such
submission is accepted, the inclusive definition of 'Port' which includes
'major ports' and 'other ports' or 'Government' includes both Central
Government and State Government in relation to 'major ports' and
'other ports' respectively will become nugatory and power conferred
upon the State Government will become meaningless. Such
interpretation is not permissible in law. Hence the point No.1 is
answered against the Union of India and KOPT.
Point No.2 :
31. It is submitted by the learned Addl. Solicitor General that
the notifications issued by the State Government under Section 5 in
relation to 'other ports' conflicted with the notification that is issued by
the Central Government altering the limits of the 'Major Ports' and
further Section 2(q) of the Major Port Trusts Act is applicable in the
instant case altering the limits of Major Port of KOPT and as the State
Government's notifications are in conflict with the Central Government
notification, it amounts to repugnancy under Article 254 of the
Constitution of India. In this regard learned Addl. Solicitor General
has also placed reliance upon the proviso to Article 162 of the
Constitution of India. Article 162 reads thus:
"162. Extent of executive power of State :-
Subject to the provisions of this Constitution, the executive
power of a State shall extend to the matters with respect
to which the Legislature of the State has power to make
laws.
Provided that in any matter with respect to which the
Legislature of a State and parliament has power to make
laws, the executive power of the State shall be subject to,
and limited by, the executive power expressly conferred by
- 34 -
this Constitution or by any law made by parliament upon
the Union or authorities thereof."
With reference to the said provision, he placed reliance
upon the proviso contending that the executive power of the State
shall be subject to and limited by executive power expressly conferred
by the Constitution or by any law made by Parliament on the Union or
authorities thereof.
32. Reiterating and supporting the said submission, Mr. Kapur,
learned Sr. Advocate on behalf of the KOPT also placed reliance upon
various decisions of the Supreme Court in the cases of Deep Chand
VS. State of U.P. & Ors., AIR 1959 SC 648; State of Orissa & Anr. Vs.
M/s. M.A. Tulloch & Co., AIR 1964 SC 1284; Fertilizers & Chemicals
Travancore Ltd. Vs. Kerala State Electircity Board & Anr., (1984)
Supp. SCC 28; State of West Bengal Vs. Kesoram Industries Ltd. &
Anr., (2004) 10 SCC 201; and Offshore Holdings Pvt. Ltd. Vs.
Bangalore Development Authority & Ors., (2011) 3 SCC 139.
33. The said contentions of Mr. Tripathi, learned Addl. Solicitor
General and Mr. Kapur, learned Sr. Advocate cannot be accepted for
the following reasons.
Article 254 of the Constitution provides the inconsistency
between laws made by Parliament and laws made by the State
Legislature and regarding repugnancy it clarifies that if any provision
of a law made by the Legislature of a State is repugnant to any
provision of a law made by Parliament which Parliament is competent
to enact, or to any provision of an existing law with respect to one of
- 35 -
the matters enumerated in the Concurrent List, then, subject to the
provisions of clause (2) the law made by Parliament, shall prevail over
the law made by the Legislature of the State.
However, in the instant case the Indian Ports Act, 1908 is
relatable to Entry No. 31 of the Concurrent List and from the said
existing law, in exercise of power under Section 5 of the Indian Ports
Act, notifications have been issued both by the Central Government
and State Government in respect of KOPT and 'other ports' in the
coastal line of State of Orissa, respectively.
34. The primary requirement for Article 254 to come into play
is that there must be an inconsistency between a 'law made by the
Parliament' and a 'law made by a Legislature of a State' on the same
subject matter from the entry in the concurrent list. The notifications
issued by the Central and the State Governments respectively cannot,
by any stretch of imagination, be treated as 'either law made by the
Parliament and State Legislature". So when there is no conflict
between two competing statutes and when the conflict is confined to
two orders/notifications issued by two independent authorities, both
acting in exercise of the powers delegated to them by another
authority, the help of this provision cannot be invoked. Nor can a
conflict between two such orders/notifications be referable to Article
254, for it is a well known principle of law that provisions of law
cannot be extended by analogy. (See Piara Kishen Vs. Crown, AIR
1951 Punjab 409).
- 36 -
35. A Division Bench of the Allahabad High Court in the case
of Mittra Nand Kaushik and another Vs.. State of U.P. and others,
reported in AIR 1982 Allahabad 451 held as under :
"15. In order to decide the question of repugnancy it
must be first shown that the two enactments contained
inconsistent provisions, and that they cannot stand
together- An obvious inconsistency about the requirement
leading to two different legal result when applied to the
same facts is the primary requirement for finding out
repugnancy."
In M. Karunanidhi v. Union of India, reported in AIR 1979
SC 898, a Constitution Bench of the Supreme Court has laid down the
test for determining the question of repugnancy and held as under :
"It is well settled that the presumption is always in
favour of the constitutionality of a statute and the onus lies
on the person assailing the Act to prove that it is
unconstitutional. Prima facie, there does not appear to us to
be any inconsistency between the State Act and the Central
Acts. Before any repugnancy can arise, the following
conditions must be satisfied:
1. That there is a clear and direct inconsistency
between the Central Act and the State Act.
2. That such an inconsistency is absolutely
irreconcilable.
3. That the inconsistency between the provisions of
the two Acts is of such nature as to bring the two Acts
into direct collision with each other and a situation is
reached where it is impossible to obey the one without
disobeying the other."
36. In view of the above it is clear that the question of
repugnancy or overriding due to conflict between central law and
State law, would arise when there is a conflict between the two laws
or statutes. In the instant case all the notifications, both of the State
and Union are under the same provision of the same central law which
gives power to the appropriate Government to notify the port limits.
- 37 -
The State Government of Orissa has appropriately and legally notified
the limits of the ports of Orissa in exercise of its constitutional powers
and powers conferred under the statute. Therefore, it cannot also be
said that the impugned notification issued by the Central Government
under Section 5 of the Indian Ports Act, altering the limits of the KOPT
will prevail over the notifications issued by the State Government in
relation to 'other ports', which is also in exercise of its statutory power
under Section 5 of the Indian Ports Act, 1908.
37. Further, the reliance placed by the learned Sr. Advocate
Mr. Kapur upon the various decisions of the Supreme Court referred
to supra have no application to the instant case for the following
reasons.
38. In the case of Kailash Nath (supra), the Supreme Court
while dealing with an illegal imposition of tax by the State
Government observed that a notification which has been made in
accordance with the power conferred by the statute has statutory
force and validity.
There is no dispute that a notification which has been
made in accordance with the power conferred by the statute has no
statutory force. In the instant case, notifications made by both the
State Government and Central Government are in exercise of their
statutory power under Section 5 of the Indian Ports Act. Therefore,
the question does arise in the case in hand that whether the Central
Government can issue any notification extending/altering the limits
of the 'major port' encroaching upon the pre-notified limits of other
- 38 -
ports of the State Government which are duly notified by the State
Government in exercise of its statutory power? Therefore, the
case of Kailash Nath (supra) is not applicable to the present case.
39. In Deep Chand (supra), the Constitution Bench of the
Supreme Court decided the principles of repugnancy. In the said
case the test is restricted to two statutes and not notifications and
other delegated legislation. Referring to the Nicholas' test of
repugnancy the Constitution Bench held that repugnancy between
two statutes may be ascertained on the basis of the following three
principles: (1) Whether there is direct conflict between the two
provisions; (2) Whether Parliament intended to lay down an
exhaustive code in respect of the subject-matter replacing the Act
of the State Legislature and (3) Whether the law made by
Parliament and the law made by the State Legislature occupy the
same field.
In the instant case the subject matter is clearly defined in
Section 5 of the Indian Ports Act, 1908, wherein the Central
Government, as per the definition of 'Government' under Section
3(9), has power over 'major ports, and the State Government has
power over 'other ports' in its State. Further, the actual conflict has
arisen out of notifications issued by the Central Government and
State Government in exercise of the similar power vested under
Section 5 of the Indian Ports Act and not out of any 'competing
statutes' or 'provisions'. In the instant case all the notifications, both
of the State and Union are under the same provision of the same
- 39 -
central law which gives power to the appropriate Government to
notify the port limits and the State Government of Orissa has
appropriately and legally notified the limits of the ports of Orissa in
exercise of its constitutional powers and powers conferred under the
statute. Therefore, the question of repugnancy will not be attracted
in this case and hence the case of Deep Chand (supra) has no
application to the present case.
40. In M.A. Tulloch & Co. (supra) the Supreme Court held
that repugnancy arises when two enactments both within the
competence of the two Legislatures collide and when the Constitution
expressly or by necessary implication provides that the enactment of
one legislature has superiority over the other then to the extent of
the repugnancy the one supersedes the other. However, in the
instant case both the notifications issued by the State Government as
well as the Central Government are in exercise of power under the
same provision of the Act and further, as explained above, the
Central Government cannot alter the limits of the 'major port'
encroaching upon the limits of 'other ports' in respect of which the
State Government has issued notifications in exercise of the power
vested under the said provision. Therefore, the case of M.A. Tulloch
& Co.(supra) has also no application to the instant case.
41. The cases of Ram Chandra Mawa Lal(supra), I.T.C. Ltd.
(supra), Kesoram Industries Ltd. (supra), and Offshore Holdings Pvt.
Ltd. (supra) have also no application for the reason that the said cases
- 40 -
also involve the question of repugnancy of two statues as well as law
made by the parliament and state legislature.
Point Nos. 3 & 4 :
42. These points are also required to be answered against the
Union of India and KOPT for the following reasons. It is an undisputed
fact that much earlier to the impugned notifications issued by the
Central Government, the State Government had issued the notification
in exercise of its statutory power under the Indian Ports Act, 1908 in
relation to seven other ports in the State of Orissa fixing its limits. It
is also evident from the map produced by them. It is also an
undisputed fact that the alteration of the limits by the KOPT
encroaches upon the other ports which are established in the coastal
line of Orissa State. Therefore, the Central Government could not
have extended the limits of the KOPT, which is a major port,
encroaching into the pre-notified limits of other ports of the
Government of Orissa in exercise of the self same power under
Section 5 of the Indian Ports Act, 1908 in view of explanation to the
above provision.
43. It is a fact that some of the ports, as per the Central
Government guidelines, have been leased out by the Government of
Orissa to some private parties for better management and
development and the developmental works are in progress. Some of
the affected private parties are the parties in these proceedings
opposing the impugned notifications.
- 41 -
44. It is also a fact that if the 'other ports' area of the
Government of Orissa is encroached upon by the KOPT extending its
limits, not only the interest of State of Orissa but also the private
companies/lessees who are having the lease hold rights will be grossly
affected. It is an well settled principles of law that an affected party
should be given an opportunity before taking any decision affecting
the interest of the said party. In the instant case, there is neither
any consultation with the State Government or its lessees before
exercising power under Section 5 by the Central Government in
altering the limits of the KOPT which transgresses into the vested
rights of both the State of Orissa as well as its lessees and the same is
also in violation of principles of natural justice. In this regard, it would
be worthwhile to refer to the Constitution Bench decision of the
Supreme Court in the case of Maneka Gandhi Vs. Union of India,
reported in AIR 1978 SC 597, wherein the Supreme Court held as
under :
" It is well established that even where there is no
specific provision in a statute or rules made thereunder for
showing cause against action proposed to be taken against
an individual, which affects the rights of that individual,
the duty to give reasonable opportunity to be heard will be
implied from the nature of the function to be performed by
the authority which has the power to take punitive or
damaging action. This principle was laid down by this Court
in the State of Orissa v. Dr (Miss) Binapani Dei146 in the
following words:
"The rule that a party to whose prejudice an order is
intended to be passed is entitled to a hearing applies
alike to judicial tribunals and bodies of persons invested
with authority to adjudicate upon matters involving civil
consequences. It is one of the fundamental rules of our
constitutional set-up that every citizen is protected
- 42 -
against exercise of arbitrary authority by the State or
its officers. Duty to act judicially would, therefore arise
from the very nature of the function intended to be
performed: it need not be shown to be superadded. If
there is power to decide and determine to the prejudice
of a person, duty to act judicially is implicit in the
exercise of such power. If the essentials of justice be
ignored and an order to the prejudice of a person is
made, the order is a nullity. That is a basic concept of
the rule of law and importance thereof transcends the
significance of a decision in any particular case.""
45. In the case of the Sheel Kr. Roy Vs. Secretary, Ministry of
Defence, (2007) 12 SCC 462, the Supreme Court held that the
doctrine of proportionality is one of the grounds on the basis whereof
the power of judicial review could be exercised.
46. In the case of Om Kumar & Ors. Vs. Union of India, (2001)
2 SCC 386, the Supreme Court placing much reliance upon the various
decisions of the Foreign Courts very lucidly elaborated the doctrine of
proportionality and held as under :
"28. By "proportionality", we mean the question whether,
while regulating exercise of fundamental rights, the
appropriate or least-restrictive choice of measures has
been made by the legislature or the administrator so as to
achieve the object of the legislation or the purpose of the
administrative order, as the case may be. Under the
principle, the court will see that the legislature and the
administrative authority "maintain a proper balance
between the adverse effects which the legislation or the
administrative order may have on the rights, liberties or
interests of persons keeping in mind the purpose which
they were intended to serve". The legislature and the
adminis-trative authority are, however, given an area of
discretion or a range of choices but as to whether the
choice made infringes the rights excessively or not is for
the court. That is what is meant by proportionality.
29. The above principle of proportionality has been applied
by the European Court to protect the rights guaranteed
under the European Convention for the Protection of
Human Rights and Fundamental Freedoms, 1950 and in
- 43 -
particular, for considering whether restrictions imposed
were restrictions which were "necessary" -- within Articles
8 to 11 of the said Convention [corresponding to our
Article 19(1)] and to find out whether the restrictions
imposed on fundamental freedoms were more excessive
than required. (Handyside v. UK). Articles 2 and 5 of the
Convention contain provisions similar to Article 21 of our
Constitution relating to life and liberty. The European Court
has applied the principle of proportionality also to
questions of discrimination under Article 14 of the
Convention (corresponding to Article 14 of our
Constitution). (See European Administrative Law by J.
Schwarze, 1992, pp. 677-866)
32. So far as Article 14 is concerned, the courts in India
examined whether the classification was based on
intelligible differentia and whether the differentia had a
reasonable nexus with the object of the legislation.
Obviously, when the courts considered the question
whether the classification was based on intelligible
differentia, the courts were examining the validity of the
differences and the adequacy of the differences. This is
again nothing but the principle of proportionality. There
are also cases where legislation or rules have been struck
down as being arbitrary in the sense of being unreasonable
[see Air India v. Nergesh Meerza (SCC at pp. 372-373)].
But this latter aspect of striking down legislation only on
the basis of "arbitrariness" has been doubted in State of
A.P. v. McDowell and Co.
33. In Australia and Canada, the principle of
proportionality has been applied to test the validity of
statutes [see Cunliffe v. Commonwealth Aust LJ (at 827,
839) (799, 810, 821)]. In R. v. Oakes Dickson, C.J. of the
Canadian Supreme Court has observed that there are
three important components of the proportionality test.
First, the measures adopted must be carefully designed to
achieve the objective in question. They must not be
arbitrary, unfair or based on irrational considerations. In
short, they must be rationally connected to the objective.
Secondly, the means, must not only be rationally
connected to the objective in the first sense, but should
impair as little as possible the right to freedom in question.
Thirdly, there must be "proportionality" between the
effects of the measures and the objective. See also Ross v.
Brunswick School Dishut No. 15 (SCR at p. 872) referring
to proportionality. English Courts had no occasion to apply
this principle to legislation. The aggrieved parties had to
go to the European Court at Strasbourg for a declaration.
- 44 -
34. In U.S.A., in City of Boerne v. Flores the principle of
proportionality has been applied to legislation by stating
that "there must be congruence and proportionality
between the injury to be prevented or remedied and the
means adopted to that end".
35. Thus, the principle that legislation relating to
restrictions on fundamental freedoms could be tested on
the anvil of "proportionality" has never been doubted in
India. This is called "primary" review by the courts of the
validity of legislation which offended fundamental
freedoms.
III-A Proportionality and Administrative Action (in England)
36. In administrative law, the principle of "proportionality"
has been applied in several European countries. But, in
England, it was considered a future possibility in the GCHQ
case by Lord Diplock. In India, as stated below, it has
always been applied to administrative action affecting
fundamental freedoms."
In the case of Teri Oat Estates (P) Ltd. v. U.T.,
Chandigarh, (2004) 2 SCC 130, the Supreme Court held as under :
"The doctrine of primary review was held to be
applicable in relation to the statutes or statutory rules or
any order which has the force of statute. The secondary
review was held to be applicable inter alia in relation to the
action in a case where the executive is guilty of acting
patently arbitrarily. This Court in E.P. Royappa v. State of
T.N. noticed and observed that in such a case Article 14 of
the Constitution of India would be attracted. In relation to
other administrative actions as for example, punishment in
a departmental proceeding, the doctrine of proportionality
was equated with Wednesbury unreasonableness
47. In the instant case, undisputedly the impugned notification
has been issued by the Central Government altering the limits of the
KOPT in exercise of its power under Section 5 of the Indian Port Trusts
Act,1908 without consulting with the State Government and its
lessees which affects the vested rights of the State Government and
its lessees, and has got serious civil consequences upon them.
Therefore the impugned notification is vitiated in law and also is in
- 45 -
violation of the principles of natural justice and Article 14 of the
Constitution as the same would amount to arbitrary, unreasonable, unfair
& a colourable exercise of power and the principle of doctrine of
proportionality would be aptly applicable to the case on hand as it
encroaches the limits of other ports of the State, even assuming without
admitting that the Central Government has got power to issue notification.
Point Nos.5 & 6 :
48. In the instant case, it is an undisputed fact that the
Government of India has published the impugned Notification on
22.10.2010 prescribing an extension of the limits of the KOPT in the
manner and to the extent specified therein. Consequent thereto, basing on
the said Notification, the KOPT published the Notification dated 10.11.2010.
49. It is settled legal proposition that if initial action is not in
consonance with law, the subsequent proceedings would not sanctify
the same. In such a fact situation, the legal maxim "sublato
fundamento cedit opus" is applicable, meaning thereby if in a case
foundation is removed, the superstructure falls.
50. In the case of Badrinath Vs. State of Tamil Nadu & Ors.,
AIR 2000 SC 3243, the Apex Court observed that once the basis of a
proceeding is gone, all consequential acts, actions, orders would fall to
the ground automatically.
51. In C. Albert Morris Vs. K. Chandrasekaran & Ors., (2006)
1 SCC 228 the Apex Court held that a right in law exists only when it
has a lawful origin. A person can be said to have a right to
something when it is possible to find a lawful origin for that right.
- 46 -
52. Therefore, if the initial notification of the Government of
India impugned herein is bad in law, the subsequent notification of the
KOPT cannot survive and KOPT cannot claim any right over the same.
53. Considering all the fact situation of the case referred to
supra, all the points are answered against the Union of India and
KOPT and in view of the above, the writ petitions are allowed. The
impugned Notification No. 2609(E) dated 22.10.2010 issued by the
Central Government is hereby quashed. As we have quashed the
said notification, the impugned Notification No. Adm/01250/VI dated
10.11.2010 issued by the Kolkata Port Trust is also accordingly
quashed.
In the result, the writ petitions are allowed.
................................
Chief Justice.
B.N. Mahapatra, J.I agree.
................................ Judge Orissa High Court, Cuttack The 25th day of November, 2011/A.Dash