ADJUDICATORY BOARD UNDER THE MAJOR PORTS AUTHORITY ACT, 2021

[Mr. M. GOVINDARAJAN]

The Major Port Authorities Act, 2021

The Major Port Trusts Act, 1963 was enacted in the year 1963 to make provision for the constitution of port authorities for certain major ports in India and to vest the administration, control and management of such ports in such authorities and for matters connected therewith.  This Act was repealed by the Major Port Authorities Act, 2021 (‘Act’ for short).  The said Bill was passed in Parliament on 10.02.2021 and got the assent of the President of India and notified on 18.02.2021.

Object

The object of the new Act is to provide for regulation, operation and planning of Major Ports in India and to vest the administration, control and management of such ports upon the Boards of Major Port Authorities and for matters connected therewith or incidental thereto.

Port Authorities

This Act is applicable to the Major Ports of Chennai, Cochin, Deendayal (Kandla), Jawaharlal Nehru (Nhava Sheva), Kolkata, Mormugao, Mumbai, New Mangalore, Paradip, V.O. Chidambaranar (Tuticorin) and Visakhapatnam, which will be converted into Port Authorities.

Adjudication Board

Section 54(1) of the Act provides for the constitution of a Board named as Adjudication Board by the Central Government to handle the disputes or claims relating to rights and obligations of major port authorities and PPP operators or captive users for dedicated berth within the framework of their concession agreements and to pass orders.

The Adjudicatory Board, the Tariff Authority for Major Ports constituted under section 47A of the Major Port Trusts Act, 1963 shall discharge the functions of the Adjudicatory Board under this Act and shall cease to exist immediately after the constitution of the Adjudicatory Board under this Act.

Head office

The head office of the Adjudicatory Board shall be at such a place as may be notified by the Central Government.

Composition

The Adjudicatory Board shall consist of a Presiding Officer and two other members, as may be appointed by the Central Government.  The Presiding Officer and members of the Adjudicatory Board shall be appointed by the Central Government on the recommendation of a Selection Committee consisting of the Chief Justice of India or his nominee, the Secretary of the Department dealing with Shipping and such other persons, and in such manner as may be prescribed.

Qualification for Presiding Officer

A person shall not be qualified for appointment as the Presiding Officer of the Adjudicatory Board unless he is-retired Judge of the Supreme Court of India or a retired Chief Justice of a High Court.

Qualification for Member

A person shall not be qualified for appointment as a member of the Adjudicatory Board unless he is–

• a retired Chief Secretary of a State Government or equivalent; or
• a retired Secretary of the Government of India or equivalent,

and has an experience of not less than twenty years in the field of finance, commerce, administration, maritime, shipping or port related matters.

Tenure

The Presiding Officer and members of the Adjudicatory Board shall hold office for a term not exceeding five years from the date on which they enter upon their office or until they attain the age of seventy years, whichever is earlier.

Salaries and allowances

The salaries and allowances payable to, and the other terms and conditions of service of, the Presiding Officer and members of the Adjudicatory Board shall be such as may be prescribed.  Neither the salary and allowance nor other terms and conditions of service of the Presiding Officer or members of the Adjudicatory Board shall be varied to their disadvantage after their appointment.

Removal

The Central Government may, in consultation with the Chief Justice of India or his nominee, remove from office of the Presiding Officer, who–

• has been adjudged as an insolvent;
• has become physically or mentally incapable of acting as such Presiding Officer or member;
• has been convicted of an offence which, in the opinion of the Central Government, involves moral turpitude;
• has acquired such financial or other interest as is likely to affect prejudicially his functions as such Presiding Officer or member; or
• has so abused his position as to render his continuance in office prejudicial to the public interest.

The Presiding Officer shall not be removed from his office except by an order made by the Central Government on the ground of proved misbehavior or incapacity after an inquiry made by the Chief Justice of India or his nominee on a reference made to him by the Central Government in which such Presiding Officer has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.

A member of the Adjudicatory Board shall not be removed from his office except by an order made by the Central Government on the ground of his proved misbehavior or incapacity, after an inquiry, held in accordance with the procedure prescribed in this behalf by the Central Government, come to the conclusion that the member ought to be removed on any such ground.

Suspension

The Central Government may, with the concurrence of the Chief Justice of India suspend from office, the Presiding Officer in respect of whom reference has been made to the Chief Justice of India until the Central Government has passed orders on receipt of the report of the Chief Justice of India on such reference.

The Central Government may suspend any member of the Adjudicatory Board in respect of whom an inquiry is being initiated or pending until the Central Government has passed an order on receipt of the report of the inquiry.

Inquiry

The Central Government shall, after consultation with the Supreme Court, make rules to regulate the procedure for the inquiry on the ground of proved misbehavior or incapacity.

Functions of the Board

The Adjudicatory Board shall perform the following functions, other than tariff setting-

• the functions envisaged to be carried out by the erstwhile Tariff Authority for Major Ports arising from the Tariff Guidelines of 2005, 2008, 2013, 2018 and 2019 and tariffs orders issued by the said Authority;
• to receive and adjudicate reference on any dispute or differences or claims relating to rights and obligations of Major Ports and Public Private Partnership concessionaires or captive users for dedicated berth within the framework of their concession agreements and to pass orders after considering and hearing all the parties involved in the dispute;
• to appraise, review the stressed Public Private Partnership projects as referred by the Central Government or the Board, and to suggest measures to revive such projects;
• to look into the complaints received from port users against the services and terms of service rendered by the Major Ports or the private operators operating in the Major Ports and to pass necessary orders after hearing the parties concerned; and
• to look into any other matter relating to the operations of the Major Port, as may be referred to it by the Central Government or the Board, and to pass orders or give suggestions, as the case may be.

Procedure

The procedure to be adopted by the Adjudicatory Board, while discharging its functions as well as other matters related to funding, accounts and audit of such Board shall be such as may be prescribed.

Powers of Civil Court

The Adjudicatory Board shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 while trying a suit, in respect of the following matters-

• the discovery and production of books of account and other documents, at such place and at such time as may be specified by the Adjudicatory Board;
• summoning and enforcing the attendance of persons and examining them on oath;
• issuing commissions for the examination of witnesses or documents; and
• any other matter which may be prescribed.

Judicial proceeding

Any proceeding before the Adjudicatory Board, shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the purposes of section 196 of the Indian Penal Code, and the Adjudicatory Board shall be deemed to a civil court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.

Bar of Civil Court

No other court shall have jurisdiction to entertain any suit for proceeding in respect of any matter falling within the scope of the Adjudicatory Board under this Act.

Sitting

The Adjudicatory Board may hold its sittings at such other places as the Presiding Officer may decide from time to time, having taken into consideration the convenience to decide the disputes referred to it.

Appeal

Any party aggrieved by any decision or order of the Adjudicatory Board, may file an appeal to the Supreme Court of India, within sixty days from the date of communication of such decision or order to him.  No appeal shall lie from a decision or order passed by the Adjudicatory Board with the consent of parties.  The Supreme Court may, entertain any appeal after the expiry of sixty days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal.

Review

Any party aggrieved by any decision or order of the Adjudicatory Board under this Act, from which an appeal is allowed but from which no appeal has been preferred, may apply for a review of such decision before the Adjudicatory Board, in such form and manner and within such time, as may be prescribed, and the said Board may make such order thereon, as it thinks fit.

Draft Rules

The draft rules in respect of ‘The Major Port Authorities (Adjudicatory Board Powers, functions and procedural) Rules, 2021 was released by the Government and kept open to public on 07.04.2021 to receive the comments of the stakeholders, general public and unions/federations.   Due to COVID the finalization of the Rules is delayed.  It is expected that the rules in respect of this Act will be finalized shortly.