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TMI Blog2009 (4) TMI 921X X X X Extracts X X X X X X X X Extracts X X X X ..... he riverbed during low tide and rise with the water during high tide. 2. Appellant opened its workshop in the year 1983, after securing a NOC dated 25.7.1983 from the Captain of Ports, Government of Goa. The said NOC was renewed every year. On 29.8.1989, the appellant sought an amendment to NOC seeking permission to manufacture fishing trawlers etc. The Captain of Ports sent a reply dated 15.11.1989 calling upon the appellant to settle the outstanding dues (rental charges for use of river area adjoining the workshop) before considering the request for issue of a modified NOC. Appellant replied on 27.11.1989 stating that it was not using any government land to repair barges, and all its activities were carried on within its own plot and therefore the question of any dues did not arise. Some years later, the Captain of Ports issued a show cause notice dated 15.5.1992 alleging that the appellant was using government riverine land for the workshop without paying the prescribed rental charges, in spite of demand letter dated 15.11.1989, and therefore, the appellant should show cause why the NOC issued to it on 25.7.1983 for setting up the workshop, which was being renewed every year, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal by special leave. Relevant Legal Provisions 5. Before adverting to the contentions of the parties, it will be useful to refer to the relevant provisions of law. 5.1) The Indian Ports Act, 1908 (`Act' for short) extends (i) to the ports mentioned in the First Schedule to the Act; (ii) to the ports/navigable rivers/channels covered by previous enactments relating to ports; and (iii) to other ports or parts of navigable rivers and channels to which the Act is extended by the Government in exercise of the power conferred under the Act (vide section 1(2) of the Act). Section 3 contains the definitions and clause (4) thereof defines `port' as including also any part of a river or channel in which the said Act, for the time being, is in force. Section 4 relates to power of the Government to extend or withdraw the Act or certain provisions thereof. It reads as under : "4. Power to extend or withdraw the Act or certain portions thereof : (1) Government may, by notification in the Official Gazette, - (a) extend this Act to any port in which this Act is not in force or to any part of any navigable river or channel which leads to a port and in which this Act is not in force; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the manner in which oil or water mixed with oil shall be discharged in any such port and for the disposal of the same; xxxxx (f) for keeping free passages of such width as may be deemed necessary within any such port and along or near to the piers, jetties, landing-places, wharves, quays, docks moorings and other works in or adjoining to the same, and for marking out the spaces so to be kept free; (g) for regulating the anchoring, fastening, mooring and un-mooring of vessels in any such port; (h) for regulating the moving and warping of all vessels within such port and the use of warps therein; (i) for relating the use of the mooring buoys, chains and other moorings in any such port; xxxxxx (jj) for regulating the use of piers, jetties, landing places, wharves, quays, warehouses, and sheds, when belonging to the government and for fixing the rates to be paid for the use of the same. (m) for enforcing and regulating the use of signals or signal-lights by vessels by day or by night in any such port; (n) for regulating the number of the crew which must be on board any vessel afloat within the limits of any such port; (o) for regulating the employment of persons engaged in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in addition to the fine specified in sub-rule (2), be liable to pay an amount of Rs. 150/- per day till such use stopped and such land restored to its pristine condition." Simultaneously, clause (ff) was inserted in Rule 2 containing definitions, by the Amendment Rules 1994, whereby the term `Government riverine land' was defined as meaning "any land falling within or without high-water mark and, subject to any rights of private property therein, any portion of a shore or bank, within 50 yards of high water mark." 5.6) The Goa Barge Tax Act, 1973 was enacted to impose a tax on barges in Goa, Daman and Diu. Section 3 of the said Act provides that a tax at the rates fixed by the government shall be levied and collected on all barges used or kept for use in Goa, Daman and Diu. Contentions of the respondents 6. The demand for rental charges was authorized, legal and justified. Rule 64 of the Rules read with Entry 21(4)(A-iv) of the First Schedule thereto enabled and authorized the port authorities to levy and collect charges for occupation of any open land at all ports. The term `open land' includes `riverine land' also. The amendment to the Rules in 1992 and 1994, expr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect on 5.4.1984, there was no power to levy any rental charges in regard to riverine land. Section 6 is specific about the matters in regard to which rules could be made by the government. Clause (jj) of section 6 specifically authorizes the government to make rules regulating the use of piers, jetties, landing places, wharves, quays, warehouses and sheds of any port, when belonging to the government and for fixing the rates for the use thereof. Riverine land which is part of riverbed which gets exposed during low tide, is neither a pier, nor a jetty, landing-place, wharf, quay, warehouse or shed. Therefore, the Government has no power to make rules either for regulating the use of Government riverine land or for fixing the rates to be paid for the use of such Government riverine land. The amendment to the Rules in 1992 and 1994, providing for levy of a charge or fee for the use of riverine land is therefore ultra vires the provisions of the Act. 12. All barges using the river pay a barge tax. Therefore, no separate fee or charge can be levied for use of any river space for anchoring or mooring any barge in any part of the river. `Landing place' refers to a land abutting the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land, retrospectively for the period 5.4.1984 to 3.3.1994? Re : Question (i) 15. The Indian Ports Act applies to Panaji Port. It is not disputed that the workshop of appellant falls within the port limits of Panaji Port, in view of the extended definition of the word `port' in Ports Act and the notification dated 29.11.1967 defining the areas falling within Panaji Port. The barge/boat repair workshop of appellant, situated on the bank of river Zuari used exclusively, portion of the river adjoining the workshop for berthing/beaching/mooring the barges/boats which came for repairs. The barges/boats that were repaired in appellant's workshop were moored (that is made fast by attaching a cable or rope to a fixed object on the shore or the bank of the river) along side the workshop during high tides. The barges/boats would settle down on riverbed during low tide. The barges/boats remained moored for periods extending from few hours to even a few weeks, depending upon the extent and nature of repairs to be carried out. Consequently, that portion of the river surface (during high tides) and riverine land (during low tides) alongside the workshop could not be used by anyone else ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bank, can therefore, be said to be using the government riverine land. Re : Questions (ii) & (iii) 17. Section 6 of the Act enables the Government to make rules in respect of the several matters enumerated therein. This includes regulation of the time and hours at and during which, the speed at which, and the manner and conditions in and on which, vessels generally or vessels of any class defined in the rules, may enter, leave or move in any port; regulation of the berths, stations and anchorages to be occupied by vessels in any such port; regulation of vessels whilst taking-in or discharging passengers, ballast or cargo, or any particular kind of cargo, in any such port; regulation of the manner in which oil or water mixed with oil can be discharged in any such port; regulation of traffic and maintaining free passages of such width as may be deemed necessary within any such port and along or near to the piers, jetties, landing places, wharves, quays, dock moorings and other works in or adjoining to the same; regulation of anchoring, fastening, mooring and un-mooring of vessels in the port; regulation of the moving and warping of all vessels within any such port and the use of w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 220 of the UP Municipalities Act, 1916 which governed the issue provided that no itinerant, vendor or other persons shall be entitled to use or occupy any public street or place for the sale of articles or for exercise of any calling or for setting up any booth or stall without the permission of the Municipal Board given in accordance with the bye-laws, notwithstanding any right or privilege previously acquired, or accrued or enjoyed. This Court held that the non obstante clause superimposed the right of the municipality to regulate the user of public street by venders and other persons and consequently, the municipality has the right to realize ground rent from them. We therefore hold that the 1992 amendment and the 1994 amendment to the Goa, Daman and Diu Ports Rules, 1983 which enable the Port Authorities to levy, charge and recover a fee or charge for using open Government riverine land from the person who is permitted to use such Government riverine land is within the rule making power of the State, and cannot therefore be said to be ultra vires the rules making power under the Act. 20. In fact, even without specific rules, the port authorities in exercise of domain over r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, the First Schedule to the Rules did not provide for levy of any fees for occupation of riverine land. However, it was only by the 1994 amendment, with effect from 3.3.1994, the Rules were amended by inserting clause (ff) in Rule 2 containing the definition of `government riverine land' and by inserting Rule 54A specifically providing that no government riverine land shall be used, without prior written permission of the Captain of Ports and without making advance payment of rental charges at the prescribed rate. Therefore, prior to the said amendment to the Rules in 1994, neither the Act nor the Rules authorized or enabled the Government to levy any fee/charge for use of government riverine land. It is true that ever since 1989, Port Authorities were making sporadic demands from the workshops and other units situated on the banks of the river and making use of the river/riverbed for payment of some fee. Some users also paid the amounts demanded. But several users did not pay the amount and refused to pay the amount on the ground that the Port Authorities had no right to demand the same. Some of course, paid the amount without prejudice or under protest, when threatened wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only." [emphasis supplied] The amendment rules do not provide that they are retrospective in operation. Nor do the circumstances warrant such an inference. In fact, the contention of the respondents is not that power to levy fees/charges for use of riverine land was created/vested in the port authorities, by virtue of the amendment rules and that such power was given to levy fees/charges retrospectively. The contention has been that the power to levy fees/charges existed ever since the Rules came into force on 5.4.1984 and that position was merely clarified by the amendment rules in 1992 and 1994. We have already held that the amendment rules of 1992 and 1994 are not clarificatory, but are provisions investing the port authorities with the power to levy and collect charges for occupation of government riverine land. Therefore, the demand for charges for use of government riverine land is valid only from 3.3.1994. Therefore the Port Authorities could not demand or recover any amount for the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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