TMI Blog2009 (4) TMI 921X X X X Extracts X X X X X X X X Extracts X X X X ..... workshop on a private land at Oudossim, Cortalim on the banks of river Zuari within the jurisdiction of Panaji Port. According to the appellant, there are two types of barge workshops: one is dry dock workshop, and the second is where the barges anchored in the river along side the workshop are repaired. Appellant's workshop falls under the second category as it undertakes repair of barges only when the barge is floating above the waterline. About 1300 sq. mtrs. of the river area adjoining the workshop is used by the anchored barge under repair. The Zuari being a tidal river, the water level therein recedes during low tide and rises back during high tide. Consequently, the barge under repair moored alongside the river bank, would settle on the 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts and not to the unamended Goa, Daman and Diu Port Rules, 1983; that the Port Authorities were entitled to levy rental charges on `open land' from the date when the said Rules came into force (on 15.4.1984), under Rule 64 read with Entry 21 (4)(A-iv) in the First Schedule of the said Rules; that the term `open land' included riverine land and the amendments to the rules in 1992 and 1994 merely clarified the said pre-existing position; and that as the power to levy rental charges was not created for the first time under the 1992 or 1994 amendment to the rules, but existed even under the unamended rules which were not challenged, the appellant could not avoid liability to pay the rental charges demanded. The said judgment is challenged in this appeal 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 navig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bled the Government to make such rules, consistent with the Act, as it thinks necessary, for any of the following purposes : (a) for regulating 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 be moved in any port subject to this Act; (b) for regulating the berths, stations and anchorages to be occupied by vessels in any such port; xxxxxx (e) for regulating vessels whilst taking-in or discharging passengers, ballast or cargo, or any particular kind of cargo, in any such port, and the stations to be occupied by vessels whilst so engaged; (ee) for regulating 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 vess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended by the Amendment Rules, 1994 whereby the following Rule 54A was inserted : 54.A Use of Government riverine land - (1) No Government riverine land shall be used for any purpose by any person without prior written permission of the Captain of Ports and without making advance payment of rental charges at the rate of Re.1/- per sq. metre per month. (2) Whoever uses the Government riverine land in contravention of the provision of sub-rule (1) shall be punishable with fine which may extend to ₹ 1500/- or imprisonment of one year or both. (3) Whoever continues to use Government riverine land as aforesaid and fails to restore it to its pristine condition after receipt of a written order to that effect form the Port Authority, shall, in addition to the fine specified in sub-rule (2), be liable to pay an amount of ₹ 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 privat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er a tax nor a fee, but a charge levied for use of government property. The source of authority for levy of such a charge is derived in part from the ownership and partly with reference to the statutory rules. While levy of tax and fee would require express authority or sanction of law, claiming rental charges for permitting user does not require such express authority as it is incidental to the right of ownership and supervision. Therefore, even without reference to the Rules, the port authority was entitled to demand and recover rental charges for use of government property. Contentions of the appellant 11. Open land does not refer to river, riverbed or river surface. Nor is it a `riverine land'. Therefore, under the Rules as originally made and brought into effect 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 fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions raised, the following questions arise for our consideration : (i) Whether the appellant, whose workshop is situated on the banks of river Zuari, used government riverine land. (ii) Whether the amendments to the Goa, Daman and Diu Port Rules, 1983, by the Amendment Rules, 1992 and 1994, relating to levy of rental charges for the use of government riverine land is ultra vires the provisions of the Indian Ports Act, 1908? (iii) Whether the Goa, Daman and Diu Ports Rules, 1983 confers authority on the Port Authorities to demand and recover rental charges for the use of government riverine land, even before the amendment by the Amendment Rules of 1992 and 1994. (iv) Whether the Port Authorities have the power and authority to claim rental charges for the use of government riverine 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/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld mean that there will be regular movement of men and material from the berthed vessel to the workshop and vice versa. Any area with a prepared berth in which craft can lie, can properly be described as a landing place. (See - Black's Law Dictionary, Stroud's Judicial Dictionary). In effect, therefore, the river side of every warehouse or workshop on the banks of a river, which has a prepared berth in which vessels/craft can lie, with facilities for unloading or loading of men and material, will be a landing space, though not a designated landing place. The river surface (during high water period) and river bed (during low water period) alongside the workshop, belonging to the government will also be a part of such landing place/workshop. A boat/barge repairing workshop situated on the river 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e use, whether such use is continuous and intermittent. The right or authority to demand such charges can also be traced to the right to regulate the use of the port area. The port area as noticed above includes the waters of the river and the riverine land. The state is therefore empowered to make rules regulating the use of the river surface/riverine land alongside the workshop and also prescribe a rental charge for such use. 19. We may in this context refer to the decision of this Court in State of Rajasthan vs. Municipal Board, Allahabad [1992 Supp (3) SCC 91] where the question whether a Municipality which had a right to regulate user of public street, had the right to realize Tehbazari or ground rent from hawkers, shopkeepers and other squatters on the patri on the public street, was considered. Section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne land for purposes of the Act. But in the absence of a special or deeming definition, the term `open plot' cannot be read as referring to the river bed which is covered by water for part of the day and exposed for remaining part of the day. `Open plot' refers to a plot of land which is open to sky. A land which is covered by any construction or water, cannot obviously be termed as an open plot. 22. When the Rules were brought into force on 5.4.1984, there was no provision for levy of any fee or charge for use of riverine land. The Rules only provided for a fee for the occupation of open plots. Only by the 1992 amendment, the words `open riverine land' was added under Entry 21(4) (A-iv) of the First Schedule so as to subject the occupation of open riverine land to payment of fees. Prior to the 1992 amendment, 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 rive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue. Therefore, the Rules were again amended in 1994 inserting the definition of `government riverine land' which included not only the portion of the bank within fifty yards of high-water-mark but also the land falling within the high-water-mark. The 1994 amendment also made a special provision under section 54A for use of government riverine land. 24. We may next consider whether the 1992 and 1994 amendments to the rules were retrospective in operation. In Zile Singh vs. State of Haryana - [2004 (8) SCC 1], this Court held : It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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