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Andreza / Suzanna

IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO. 2750 OF 2024 (F)

WITH

CONTEMPT PETITION NO. 999 OF 2025 (FILING)

IN

WRIT PETITION NO. 2750 OF 2024 (F)

-----------------------------

WRIT PETITION NO. 2750 OF 2024 (F)

1. The Mormugao Stevedores Association,

Though its authorised representative Mr.

Vinod Parkkot, s/o late Bhaskar Menon

Parkkot, r/o MHN 17, Parkkot House,

Swatantra Path, Vasco-da-Gama, Goa, 403

802, with office at Pereira Chambers, St. Jose

Vaz Road, Vasco-da-Gama, Goa, 403 802.

2. Mr. Shaikh Usman, s/o late Mr. Shaikh

Nuha, aged 52 years, Proprietor of the

proprietorship concern M/s. Shaikh Nuha &

Sons Logistics Services, with office at Karma

Heights, 6, X-Block, 1

st

Floor, near Goa

Shipyard Ltd., Vaddem, Vasco, Goa.

… Petitioners

V e r s u s

1. The Mormugao Port Authority, Through its

Chairperson, With office at Headland, Sada,

Goa - 403 804.

2. Delta Infralogistics (Worldwide) Ltd., Delta

House, 6" Floor, Bangra — Kulur Road, Kulur,

Dakshina Kannada, Mangalore, Karnataka —

575 013.

3. Delta Ports Mormugao Terminal Pvt. Ltd.,

401, 4" Floor, Anand Trade Center, Vasco da

Gama, Mormugao, Goa — 403 802.

… Respondents

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-----------------------------------

WITH

CONTEMPT PETITION NO. 999 OF 2025 (FILING)

IN

WRIT PETITION NO. 2750 OF 2024 (F)

1. The Mormugao Stevedores Association,

Though its authorised representative Mr.

Vinod Parkkot, s/o late Bhaskar Menon

Parkkot, r/o MHN 17, Parkkot House,

Swatantra Path, Vasco-da-Gama, Goa, 403

802, with office at Pereira Chambers, St. Jose

Vaz Road, Vasco-da-Gama, Goa, 403 802.

2. Mr. Shaikh Usman, s/o late Mr. Shaikh

Nuha, aged 52 years, Proprietor of the

proprietorship concern M/s. Shaikh Nuha &

Sons Logistics Services, with office at Karma

Heights, 6, X-Block, 1

st

Floor, near Goa

Shipyard Ltd., Vaddem, Vasco, Goa.

… Petitioners

V e r s u s

1. Dr. Vinodkumar Nair, The Chairperson of

The Mormugao Port Authority, with Office at

Headland, Sada, Goa – 403 804.

2. Capt. Himanshu Shekar, The Traffic

Manager of The Mormugao Port Authority,

with office at Headland, Sada, Goa, 403 804.

3. Mr. Ahmed Mohiuddin, Managing Director,

Delta Infralogistice (Worldwide) Lts., Delta

House, 6

th

Floor, Bangra Kulur Riad, Kulur,

Dakshina Kannada, Mangalore, Karnataka –

575 013.

4. Mr. Shamil Ahmed Mouzam, Managing

Director, Delta Porta Mormugao Terminal Pvt.

Ltd., 401, 4

th

Floor, Anand Trade Center, Vasco

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da Gama, Mormugao, Goa – 403 802. … Contemnors

Mr. A. F. Diniz, Senior Advocate with Mr. Ryan Menezes, Mr

Nigel Fernandes and Ms. S. Alvares, Advocates for the Petitioners.

Mr. Y. V. Nadkarni, Advocate with Ms. Simran Khadilkar and Mr.

Nilay Advocates for Respondent No. 1.

Mr. S. S. Kantak, Senior Advocate with Ms. Shloka Narayanan,

Mr.Manu Kulkasrni (through VC), Mr. Jitendra Supekar, Ms. Neha

Kholkar, Ms. Saicha Desai, Mr. Roger Ray D’Souza and Mr. K.

Simoes, Advocates for Respondent nos. 2 and 3.

--------------------------------------

CORAM: BHARATI DANGRE &

NIVEDITA P. MEHTA, JJ.

RESERVED FOR JUDGMENT ON:

DATE:

2

nd

May, 2025

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th

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JUDGMENT (Per Bharati Dangre, J.)

1.The Petitioner no.1, Mormugao Stevedores’ Association, through

its authorised representative Mr. Vinod Parkkot, has approached this

Court being aggrieved by the decision taken by the Mormugao Port

Authority (MPA), Respondent no. 1 to tender general Berths 10 and 11

at the Mormugao Port for operation and maintenance on Public Private

Partnership (PPP) basis and this action is alleged to be in violation of

Section 22 of the Major Port Authorities Act, 2021.

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The Petition is being filed on behalf of the stevedores, who are

agents and authorised to load, unload, and stow cargo on board vessels

at the Mormugao Port and who are issued licenses for stevedoring by

the Mormugao Port Authority, under the Mormugao Port Trust

(Licensing of Stevedores) Regulations, 2010.

2.The Petition filed by the Petitioner no.1-Association along with

Petitioner no. 2 Mr Shaikh Usman, proprietor of M/s. Shaikh Nuha &

Sons, a member of the Petitioner no. 1 and a licensed stevedore seek the

following reliefs :-

(a) That by a writ of Certiorari, and / or a writ, order

and / or direction in the nature of Certiorari, and / or

any other appropriate writ, order or direction, under

Article 226 and / or 227 of our Constitution,

quashing and setting aside, the decision of the

Respondent No. 1 to tender general Berths 10 & 11 at

the Mormugao Port for operation and maintenance

on PPP basis. And the consequential Letter of Award

dated 27/10/2023 issued by Respondent No. 1 in

favour of Respondent No. 2, and the Concession

Agreement dated 14/12/2023 entered into between

Respondent No. 1 and Respondent No. 3, with all its

legal consequences;

(a-1) That by a Writ of Certiorari, and / or a writ,

order and / or direction in the nature of Certiorari,

and / or any other appropriate writ, order, or

direction, under Article 226 and / or 227 of our

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Constitution, the letter dated 08/08/2024 issued by

Respondent No. 1 be quashed and set aside, and it be

declared that the Letter of Award dated 27/10/2023

and the Concession Agreement dated 14/12/2023, do

not confer upon Respondent Nos. 2 and/ or 3, an

exclusive right to conduct stevedoring operations,

with all its legal consequences;

By way of an interim Order, stay is sought to the effect of operation of

the Letter of Award issued by Respondent No. 1 in favour of Respondent No.

2, as well as the Concession Agreement entered into between Respondent No.

1 and Respondent No. 3, thereby preventing the Respondents from infringing

/transgressing the rights of licensed stevedores under the prevailing

Stevedoring Regulations.

3.We have heard Senior Counsel Mr. A. F. Diniz for the Petitioner

and Mr. Y. V. Nadkarni representing the Mormugao Port Authority.

The Respondent no. 2, the Concessionaire and the Respondent no. 3,

the Special Purpose Vehicle constituted by the said purpose are

represented by the learned Senior Counsel Mr. Subodh Kantak.

In the wake of the Contempt Petition No. 999 of 2025 filed by the

Petitioner alleging disobedience of the Order passed by this Court on

10.03.2025, which directed that the stevedores may enforce their right

under the license and any action taken by the respondents will be

subject to the outcome of the Petition being violated, when we took up

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the Petition for hearing, our attention was invited to the Order of

10.03.2025, where it was noted that on the pleadings being completed,

an endeavour shall be made to hear the Petition finally at the stage of

admission.

Hence by consent of the respective Counsel, on the pleadings

being completed, we deem it appropriate to take up the Petition for

final hearing.

Hence, we issue ‘Rule’, which is made returnable forthwith.

4.Mormugao Port Authority is a Major Port and it carries

operations which include the operation of Stevedores and Shore

Handling. There are eleven Berths with the Port, where the ships can

dock, amongst which Berth nos. 1 to 4 are developed for use as

terminals for passengers of cruise ships, which do not involve any

loading/unloading of cargo. Berth no. 5 A and 6A are “Captive Berths”

which have been allotted to JSW Group, to handle import or export of

cargo of its companies exclusively, whereas, Berth no. 7, which is also a

“Captive Berth” is allotted to Aadani Group of Companies, as a

consequence of which Berth nos. 5A, 6 and 7 do not permit any general

traffic.

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As far as Berth no. 8 is concerned, it is exclusively used for cargo

oil and as per the Petitioners, stevedores have no role to play since

pipelines have been installed for loading and unloading of the liquid

cargo. Berth no. 9 is a non-operational Berth and this leaves Berth no.

10 and 11 which are “General Cargo Berths”, which are available for the

import or export of General Cargo. Stevedores are permitted to operate

from these Berths and can offer services provided they are licensed by

the Port. An importer/exporter would pay the necessary charges to the

Port for use of the said Berth and then select a stevedore of their choice

for loading and unloading their cargo. Thus, the Port itself did not

indulge in such operations, but have issued licences to stevedores like

Petitioner no. 2 and other members of Petitioner no.1.

5. In the past, grant of stevedore licences was governed by the

Mormugao Port Trust (Licensing of Stevedores) Regulations, 2010,

framed in exercise of the powers under Section 123 of the Major Port

Trusts Act, 1963, with the approval of the Central Government.

The stevedoring licences could be issued upon compliance of the

conditions stipulated therein and the licence issued shall have a validity

period of three financial years from the date of its issuance, which was

permitted to be renewed on the basis of achieving minimum

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guaranteed thorough output prescribed on its parametres as fixed by

the Port.

6. The Petitioner No. 1 claim to be an Association of the stevedores,

being registered as Society registered under the Societies Registration

Act, 1860 comprising of stevedores, working at Mormugao Port

Authority and undertaking stevedoring operations on the basis of the

licence issued in their favour. By specifically contending that its

members complied with and continue to comply with the duties and

responsibilities cast upon them by way of the said licence, the specimen

copies of which are placed as a part of the Petition at Exhibit P-1

collectively, a specific statement is made in the Petition that the said

licence has not been cancelled or revoked and it continue to subsist as

on date.

7.The background of the Petition lie in the statutory regime

prevailing in the field, with the Parliament, enacting the Major Port

Authorities Act, 2021, to regulate, operation and planning of Major

Ports in India and to vest the administration, control and management

of such Ports upon the Boards of Major Ports Authorities. The said

enactment was necessitated, in the background of the Major Port Trust

Act enacted in the year 1963 for constitution of Port Authorities for

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certain Major Port Authorities in India and pursuant thereto Major

Port Trusts were created following the service code model.

8. In order to provide greater autonomy, flexibility to the Major

Ports and to professionalize their governance, it was proposed and

necessary to repeal the Major Port Trusts Act of 1963 and to replace it

with new legislation, so as to constitute the Board of Major Port

Authority for each Major Port in place of Board of Trustees and to

enable the Board of Major Port Authority to -

“(a) to use its property, assets and funds in

such manner and for such purposes as it may

deem fit for the benefit of the Major Port;

(b) to enter into and perform any contract

necessary for the performance of its functions

under the proposed legislation;

(c) to create master plan for development of

any infrastructure within the port limits; and

(d) to make regulations for the purpose of

operations, development and planning of

Major Ports;

The Act was brought into force on 03.11.2021.

9.On 30.10.2023, the Board of Major Port Authority for Mormugao

Port, framed the Mormugao Port Authority stevedoring and shore

handling Regulations 2023 in exercise of the powers conferred by sub-

section (2) of Section 72 of the Act, to be known as “Mormugao Port

Authority (Stevedoring and Shore Handling) Regulations 2023” in

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supercession of Mormugao Port Trust (Licensing of Stevedores)

Regulations 2010.

The Regulations being brought into force, by virtue of clause 3

thereof, were made applicable to the stevedoring and shore handling

activities undertaken by the agent but did not apply to the stevedoring

and shore handling activities by the Port, Public Private Partnership

Projects, built- operate-transfer operations, agreements or such

agreements as has been entered into by the Board.

The said Regulations clearly specify that no person shall

undertake to perform the stevedoring and shore handling activities in

the port unless he has been issued a licence under these regulations.

The Chairman of the Board is declared as a Licensing Authority

under the Regulations and it specifically carved out the duties and

responsibilities of the stevedores and shore handling agents. The

licences of the Members of Petitioner no. 1-Association received

renewal under the 2023 Stevedoring Regulations.

10. On gaining knowledge that the Mormugao Port Authority had

entered into a Concession Agreement with Respondent no. 3, the

Petitioners made sincere attempts to obtain the necessary information

by filing applications under the Right to Information Act, 2005, seeking

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copy of the Memorandum of Understanding and Agreement so entered

but that was refused on the ground that the “third party is not entitled

for the copy of the Agreement”.

Being aggrieved, the process was taken ahead with the Appellate

Authority.

In response to the RTI application dated 20.02.2024, to the

query whether the award of tender give the tenderer right to explore

other Port users including ship agents, stevedores, barge owners, truck

operators, machinery owners, work contractors, etc. holding MPA

Licenses from using MPA facilities, the response given was “please refer

to the details given in the document provided at serial no. 9.”

These documents are the Request for Qualification (“RFQ”),

Request for Proposal (“RFP”) and the Draft Concessionaire Agreement.

On obtaining these documents, the Petitioners gained knowledge

that the scope of the work awarded to the Concessionaire includes

development of infrastructure of the Ports in order to include the cargo

handling capacity but did not include stevedores operations.

The Petitioners attempted to seek more information but

ultimately instituted a Writ Petition on 24.10.2024 with the reliefs set

out therein.

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The Petition was permitted to be amended upon certain

information being received pursuant to an RTI application being filed,

informing that no Regulations are framed by the Port Authority under

Section 22(2) and 24(3) of the Major Port Authorities Act, 2021.

11.On the Respondents being issued notice on 10.03.2025, the

Court took note of the contention advanced on behalf of the Petitioners

in the backdrop of the Major Port Authorities Act, 2021, was in

reference to the Concession Agreement executed between the

Mormugao Port Authority and Delta Infralogistics (Worldwide) Ltd.,

with focus on the clause pertaining to the right of the Concessionaire.

On appreciating the contention of the Petitioners that the

stevedores continue to manage and operate the project and offer their

services on a first come first serve basis, which is open to all shipping

lines, importers, exporters, shippers, etc. and that the Respondent no. 1

was not justified in restricting the stevedores, grant of interim relief

was strongly opposed by relying upon the Regulations 2023 and also by

submitting that the Concession Agreement was already executed and

this would now be governed by the Regulations of 2023.

By appreciating the contentions, this Court on 10.03.2025,

passed a detailed order and in specific issued the direction as below :

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“8. We find that the licenses to operate in favour of

the petitioners are still subsisting. At this stage all

that we can observe is that the stevedores may

enforce their rights under the license and any action

taken by the respondents will be subject to the

outcome of this petition.”

It is this order which has given rise to filing of Contempt Petition

No. 999 of 2025, which is also listed before us.

12.In the aforesaid factual background and the statutory regime in

force, Mr. Diniz, the learned Senior Counsel representing the

Petitioners, has formulated the point that fall for our consideration :

“Whether the action of Mormugao Port Authority in

issuing letter dated 08.08.2024 and the Trade Notice

dated 03.04.2025, consequently preventing the

stevedores from exercising their rights under their

prevailing licences to conduct stevedoring operations

in Berth Nos. 10 and 11 is illegal and void, in absence

of any Regulations being framed.”

13. The aforesaid question deserve an answer in the wake of the

submission of Mr. Diniz, that as long as the licences issued in favour of

the stevedores continue to remain in operation, and this include their

operations at Berth Nos. 10 and 11, during the subsistence of the said

licences, the Respondent cannot curtail their rights by restricting their

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operation at specific parts of the Port, as their licences are valid up till

2027.

It is his specific contention, that when the decision was taken by

the Port Authority to assign the operation and maintenance of Berth

Nos. 10 and 11 to the private operators on PPP basis, the 2010

Stevedoring Regulations were in operation. The RFQ was published on

03.03.2023 whereas the RFP was opened on 10.10.2023 and the Letter

of Award was issued in favour of Respondent no. 2 on 27.10.2023.

The Marmugao Port Authority Regulations 2023 came into force

on 30.10.2023 and in this background, it is contended by Mr. Diniz,

that the Regulations which govern the stevedoring operations at the

Port are the 2010 Regulations, which clearly conveyed that in order to

conduct stevedoring at the Port, one had to obtain a licence under the

Regulations and only licensed stevedores like the Petitioners can

undertake stevedoring. It is also his specific submission that these

Regulations did not permit outsourcing of the stevedoring activity and

did not contemplate a PPP Scheme as stevedoring was to be carried out

only by licensed holders under the 2010 Regulations, as stevedore was

defined under the Regulations, as an authorized Agent for loading and

unloading and storage of cargo in any form on board the vessels in the

Port.

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It is his specific contention that after the contract Letter of Award

was issued in favour of Respondent no.2, three days thereafter, the

stevedoring Regulations of 2023 are notified, which are a departure

from 2010 Regulations, as it excludes its applicability to the Public

Private Partnership Projects as well as BOT operations entered by the

Board, as it is not mandatory for them to be a licence holder.

14. Another contention advanced before us, on behalf of the

Petitioners is, the licence of the members of the Petitioner no. 1 as well

as the Petitioner no. 2, while it subsists, is for the Port and not

restricted to finger jetties and therefore the Concessionaire cannot

prevent stevedores from operating at the Berths and there can be no

conferment of exclusive rights on the Concessionaire to the exclusion

of the Petitioners.

The action of the Respondent no. 1 initiating the Trade Notice on

03.04.2025 and blocking access of the licenced stevedores at Berth nos.

10 and 11 so as to prevent them from conducting stevedoring

operations is described to be an illegal and arbitrary action, as it is the

specific contention raised that Respondent Nos. 2 and 3 do not have

exclusive right to conduct stevedoring as long as the licences in favour

of the Petitioners continue to remain in operation.

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15. In addition to the aforesaid, Mr. Diniz has also called into

question the decision on the part of the Respondent no. 1 to tender and

consequently to award the tender without justifying its feasibility and

necessity as he would submit that prior to inviting the tenders Aarvi

Associates had prepared the technical feasibility report for

development at Berth Nos. 10 and 11 to set out the traffic projections.

It is his specific contention that despite independently presenting the

projections, Aarvi Associates record that the Port Authority gave

instructions to consider 2.5 MPA as a base and increase only by 0.5

every year till it reaches 4.5 MPA. According to him, the traffic

projection for the bid itself was artificially reduced, contrary to the

expert independent assessment of Aarvi Associates and because of this,

upon the bid being floated, its price would be heavily reduced and the

Concessionaire would make less payments, on high revenues which

would be detrimental to the interest of the Port and on this ground also

the decision to enter into an agreement on Public Private Partnership

basis is called into question.

16. Yet another important point which Mr. Diniz has pressed into

service is that no Regulation had been framed and Section 22 of the

Major Port Authorities Act, 2021 is invoked to submit that, the manner

of any contract or arrangement by work, or sale of land or immoveable

property or period and for manner for lease of land for Port related

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use and non Port related use, shall be permitted only in such manner as

may be prescribed and further if Public Private Partnership Project is to

be implemented by the Port, it shall be subject to the policy notified by

the Central Government in respect of such Public Private Partnership

Project.

In support of this submission, Mr. Diniz has placed reliance on

the decision of the Apex Court in case of Consumer Online

Foundation & Ors. vs. Union of India & Ors.

1

to submit that,

when the statute prescribe a particular power to be exercised subject to

certain stipulations then the exercise of the power is permissible only

upon such conditions being complied with.

By contending that privatization of Berth No. 10 and 11 in favour

of one entity is subject to the policy of Central Government, as proviso

appended to Section 22, clearly set out that a contract or agreement for

sale, lease or licence, of the Ports property shall be in accordance with

the policy of the Central Government.

17. At the end, Mr. Diniz would describe the act of the Respondent

no. 1 as violative of the fundamental right of the Petitioners, who have

a right to livelihood as they have been engaged as stevedors for

considerable period of time and by a arbitrary and unfair decision by

12011 (5) SCC 360

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the Respondent no. 1, their right to means of livelihood has been taken

away. For this proposition, he would place reliance on the case of

Senior Divisional Commercial Manager, South Central

Railways & Ors. vs. S. C. R. Caterers, Dry Fruits, Fruit Juice

Stalls Welfare Association & anr.

2

, where the Apex Court was

confronted with a grievance of non renewal of the licences of those

persons who were members of Respondents and who were completely

dependent on self earnings from the small units and their decision to

make them participate in public competition was held to be completely

unfair, unreasonable and arbitrary. The Supreme Court heavily came

down upon the careless attitude for the inaction on the part of the

State in tackling the problem of rising unemployment and the

appellants under the guise of policy being denied the renewal of

licenses, definitely was held to be deprivation of their right to freedom

of occupation guaranteed under 19(1)(g) of the Constitution as well as

the right to livelihood, which action was directly opposed to the

constitutional duty towards social justice and uplifting the weaker

sections of the society and unemployed youth of the Country.

18. Contesting the claim raised in the Petition, Mr. Nadkarni

representing the Port, began his arguments by submitting that the

Petition is founded on a wrong premise that the Members of the

Petitioner no. 1 Association are denied any workload and he would

2 2016 (3) SCC 582

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submit that from the date on which the operations by Respondent nos.

2 and 3 were permitted i.e. from 04.04.2025 till date i.e. for a period of

24 days, the Respondent No. 3 was given workload of 1,54,000 metric

tons whereas the Petitioners had operated a load of 2,38,854 metric

ton, despite exclusion of their operation at Berth nos. 10 and 11. It is

submitted by him that the licences of the members of the Petitioner

no.1 are valid and they are permitted to operate as stevedores on the

outer anchorage as well as Barge jetty and therefore the specious plea

that their source of livelihood is snatched away is completely false. He

has instructions to make a statement that the Respondent no. 1-Port

require the services of the licenced stevedores and if their operation is

excluded at Berth no. 10 and 11, that has not caused any harm to them

as they are permitted to operate in the balanced area of the Port, for

which licence was granted to them.

Mr. Nadkarni would also submit that the Petitioners are aware

that in the past also, Berth No. 5A and 6A as well as Berth no. 7 were

restricted in its operation and they were given out on PPP basis but the

Petitioners never perceived any threat of livelihood on both the

occasions.

19. Contesting the claim raised in the Petition and in specific in

prayer clause (a) and (a-1), wherein a challenge is raised to the process

of Respondent no. 1 to invite tender for Public Private Partnership of

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managing the operation at Berth Nos. 10 and 11, by alleging that it

affected their right, it is the submission of Mr. Nadkarni that a

conscious decision was taken by the authority, in the wake of the fact

that the Port Owned Harbour Mobile Crane (HMC), Commissioned in

2013, had outlived its use and was frequently under break down. This

significantly impacted the Port's traffic and led to negative publicity

with the trade and stakeholders.

He would submit that the Port continued to receive

representation from the Port users, shipping lines, vessel agents and

Goa Chamber of Commerce and Industries complaining about the

inadequate infrastructure at the General Cargo Berths. Submitting

that, the Ports financial condition was not supporting procurement of

HMCs, as it contemplated an estimated cost of Rs.168.24 crores, the

Mormugao Port Authority in its Board meeting dated 29.03.2022

resolved to outsource the existing operation and maintenance of the

Berth nos. 10 and 11 to private operators on PPP mode for a concession

period of 30 years for handling of Cargo, except POL, all liquids, LPG,

LNG and CNG.

Thereafter, according to Mr. Nadkarni, the Port forwarded the

proposal for its approval to the Ministry of Ports, Shipping and

Waterways along with the Financial Appraisal Report, Draft Concession

Agreement, etc.

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Pursuant thereto, the Ministry conveyed the approval of the

competent authority to the Standing Finance Committee’s proposal for

Operation and Maintenance of Berth no. 10 & 11 on PPP basis at the

cost of 139.63 crores.

A copy of the said communication is a part of the affidavit filed

on behalf of Respondent no. 1 in opposing the grant of relief in the

Petition. Mr. Nadkarni would therefore submit that there is no

substance in the submission that the requisite permissions were not

obtained as before the RFQ and RFP was processed and the Concession

Agreement was entered into, a Draft of Concession Agreement was

received from the Central Government indicating that the Government

was conversant with the steps being taken by the Respondent no. 1 in

outsourcing the cranes and letting its Berth nos. 10 and 11 to operate

on PPP basis.

20.Resisting the contention of Mr. Diniz, as regards applicability of

Section 22 of the Act of 2021, he would submit that the restriction

imposed is about the Board not selling, alienating or diversifying its

assets, properties, rights, powers and authorizations vested in it

without prior sanction of the Central Government but since from time

to time, the concerned Ministry was kept in loophole, there is no cause

for alleging that the provisions of Section 22 were violated.

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Mr. Nadkarni has stressfully argued before us that by virtue of

sub-section (1) of Section 22 of the Act of 2021, the Board of each Major

Port is entitled to use its property, assets, and funds in such a manner

or for such purpose as it deem fit for the benefit of that Major Port.

Submitting that once this power is available to the Board, merely

because the Regulations are not framed can be no ground to prevent

exercise these powers, he would invoke the principle of law laid down

in case of Surinder Singh vs. Central Government & Ors.

3

,

which has analysed a similar provision, when the exercise of the power

is henched by a clause "subject to" and by relying upon sub-section (1)

of Section 22, his submission is, that merely because the Regulations

are not framed and particularly because the Mormugao Port Authority

has been recently constituted on 28th January 2022 and the

Regulations no being yet framed, shall not prohibit exercise of the

power by the Board.

21.In addition, Mr. Nadkarni has also opposed the submission of

Mr. Diniz, by submitting that the members of the Petitioner no. 1 could

not have participated in the tender process as according to him the

RFQ floated for operation and management of Berth nos. 10 and 11 on

Public Private Partnership basis at Mormugao Port, permitted a bid to

3 1986(4) SCC 667

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be submitted either by a company which is in existence or by an entity

which would convert itself into a company.

He has invited our attention to the RFQ dated February, 2023,

which entail the scope of work as "Operations, Maintenance and

Management of Berth No. 10 and 11 and the PPP format contemplated

Design, Build, Finance, Operate and Transfer (DBFOT)”.

Our attention is also invited to the relevant clauses of the RFQ,

with the necessary stipulations, highlighting the scope of the work to

include installing two HMCs of 100 MT each, mobile conveyors and

other ancillary works for successful completion and operation of the

terminal to create capacity to handle bulk, break bulk cargo including

containers of a minimum volume of 6.00 million tons per annum and

the Management, Operation, and Maintenance thereof. According to

Mr. Nadkarni, the process which was adopted at the Port earlier was

time consuming as it involved manual lifting of the cargo, which would

consume more time, thereby reducing the traffic flow, and as a result

the Port was able to handle less traffic meaning there was less earning.

He would submit that from the year 2013, there was no container traffic

at the Port and in order to increase the efficiency as well as profitability

of the Port, the requisite steps were taken.

22. Mr.Nadkarni would also invite our attention to the draft of the

Concession Agreement and in particular the relevant clause which

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contain conferment of exclusive right in the Concessionaire for

operating Berth Nos. 10 and 11 since the tender was for operation-

maintenance and management of Berth No. 10 and 11.

According to him, once the Port is handed over to the

Concessionaire, it is his choice to engage the services of the stevedores

and it is not impermissible for the Concessionaire to engage its own

staff, whom it trusts, since any dereliction in slowing down the

operation by the stevedores would cause tremendous loss to it.

In short, the submission of Mr. Nadkarni is, that the decision

taken by the Port Authority is in larger public interest as it is going to

generate more revenue, which is ultimately a decision in larger public

interest and in any case, it is his specific contention that the operation

by the Petitioners is not impacted except that they are not permitted to

operate at Berth Nos. 10 and 11.

23. The learned Senior Counsel, Mr Subodh Kantak, representing

Respondent No.2 and 3 has adopted the submissions of Mr Nadkarni,

as regards the necessity of the entering into a Public Private

Partnership Project for operation and maintenance of berth No.10 and

11, as even according to him as the crane which was installed at the Port

was insufficient to cater to the activities contemplated and when it

became non-functional, even these activities came to a standstill.

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Justifying the activities on the said Berth Nos. 10 and 11 through

private operators on PPP basis, he would submit that Jawarhalal Nehru

Port Trust (JNPT), one of the largest Port in the Country is also

operating on 100% Public Private Partnership.

Mr Kantak would also invite our attention to the Maritime India

Vision (MIV) 2030, a document published by the Ministry of Ports,

Shipping & Waterways, Government of India, which encourages the

Landlord Model adoption for berth operations across major Ports in

order to maximise mechanised bulk berth operations.

By relying upon the Regulations of 2023, in specific, Rule 3, he

would submit that the new Regulations have upset the 2010

Regulations and as per the new regime, Stevedoring, and Shore

handling activities undertaken by the agent are to be covered by the

Regulations of 2023 but it did not apply to the Stevedore and Shore

handling activities by the Port itself, or by a Public Private Partnership

Project or BOT operations which are entered into by the Board.

24. Mr Kantak has adopted the arguments of Mr Nadkarni as

regards Section 22 of the Ports Act and he would place reliance upon

the decision in the case of Sonvir alias Somvir v/s. State (NCT of

Delhi)

4

in the backdrop of the interpretation of Section 4 and 5 of

Identification of Prisoners Act, 1920, which contain approval requiring

4 (2018) 8 SCC 24

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the procedure to be followed “in the prescribed manner” and the

approach adopted by the Apex Court, in specific, i.e. the provisions do

not justify the arguments that ‘subject to regulations’ to be framed and

in absence which the power cannot be exercised. According to Mr

Kantak, whatever has been done by the Port is in consultation with the

Central Government and therefore its decision to award Berth No.10

and 11 on PPP basis do not warrant any interference.

Apart from this, it is the specific contention that the other two

Berths are allotted to Adani and JSW, merely for captive use, the

Petitioners Association never objected. It is his specific contention that

being allotted the work to operate and manage the Berths, he has every

right to have his own staff who shall work as per his instructions and it

is his specific contention that his client itself is a Stevedore who is

licenced under the Licencing Policy.

25. Apart from this, Mr Kantak by relying upon the rejoinder filed

by Respondent No.2 and 3 would submit that the Respondents have

already procured 2 HMCs at a cost of Rs.86 Crores and the cranes are

made operational from 04.04.2025 after they were assembled. In

addition, it has also incurred additional expenditure including Rs.5.7

Crores for electrical work, Rs.4.89 Crores for procurement of grabs for

cargo operation, Rs.1.49 Crores for road sweeper machine, Rs. 89

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Lakhs for mist cannon and Rs.89 Lakhs towards installation of weigh

bridges.

Therefore, it is his submission advanced on behalf of Respondent

No.2 and 3, that about 100 Crores have been expended preceding the

commencement of operations at Berth No.10 and 11 and since the

Respondent No.2 and 3 have now changed their position, any reversion

would be detrimental to their interest. Mr Kantak would, therefore,

seek dismissal of the Writ Petition.

26. We have considered the rival claims raised in the pleadings

placed before us as well as the those put forth during the oral

arguments advanced by the respective Counsel.

The grievance of the Petitioner no.1 Association of which the

Petitioner No.2, is a Member, is the action of the Mormugao Port

Authority, Respondent No.1 to tender general Berths No.10 and 11 at

the Port, for operation and management on PPP basis and

consequential Award in favour of Respondent No.2 on 27.10.2023, to

be followed by the Concession Agreement executed on 14.12.2023 and

subsequent Trade Notice No.2 of 2025, thereby restricting the entry of

Stevedores on these berths. It is the contention of the Petitioner No.1-

Association that the Concession Agreement dated 14.12.2023 cannot

confer upon the Respondent No.2 or 3 an exclusive right to conduct

stevedoring operations.

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In order to appreciate the contention, it is necessary to make

reference to the background statutory regime.

The Major Port Authorities Act, 2021 received the assent of the

President on 17.02.2021, in form of an Act entitled 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. The said Act has repealed the Major

Port Trust Act, 1963 nonetheless with a saving clause contained in

Section 75(2) and a transitional provision, in form of Section 76,

prescribing that notwithstanding anything contained in the Act, the

Board of Trustees function as such immediately before the

commencement of the Act shall continue to function until the Board for

each unit is constituted.

27. The Act of 2021 define “Major Port Authority” to mean Major

Port as defined in Clause 8 of Section 3 in Indian Ports Act. Port assets

are defined in Section 2(1) (x) as below:

“(x) “port assets” means any asset within the port

limits including land, movable or immovable

property or any other property, whether tangible or

intangible, owned by or vested with the Board

through the Central Government or the State

Government, as the case may be;

The Act also provide a definition for Public Private Partnership

Project in Section 2(zc) as below:

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“2. (zc) “Public Private Partnership project”

means the projects taken up through a

concession contract entered into by the Board

under sub-section (1) of Section 24;”

28. Under the Major Port Trust Act, 1963, the power was conferred

on the Board to frame Regulations and in exercise of the said power the

Board of Trustees of the Mormugao Port Trust had framed the

Mormugao Port Trust (Licensing of Stevedores) Regulations, 2010,

with the approval of the Central Government.

The said Regulations define “Stevedores” as an authorised agent

for loading and unloading and storage of cargo in any form on board

the vessels in Ports.

The Regulations cover the following activities: -

(i) Stevedoring undertaken by the Port

(ii) Stevedoring by the licenced stevedore

(iii) Stevedoring by the BOT terminal operator as

prescribed under the Licence Agreement.

The stevedoring covered the activities on

board involving workmen and extending to hooking

for export (loading) cargo and unhooking of import

(unloading) cargo involving workmen on-board or

whatever practice prevalent in ports.

29. The Regulations contemplate licence for stevedore/stevedoring

to be issued by the Chairman of the Board, subject to stipulation of

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deposit of security deposit as well as providing minimum equipment

gear either owned or hired.

The licence issued carried a validity of three financial years from

the date of its issuance with a clause for its renewal, on the basis of

achieving minimum guaranteed throughout/prescribed performance

parameters as fixed by the Port.

The Regulations of 2010 also enlisted the duties and

responsibilities of a Stevedore as well as contained the provision for

cancellation of licence.

30. With the new regime of Major Port Authorities Act, 2021 coming

into force, by invoking the powers conferred by Sub-section 1 of Section

72, the Central Government approved the Mormugao Port Authority

(Stevedoring and Shore Handling) Regulations, 2023 made by the

Board of Mormugao Port Authority and published the same in the

Official Gazette of Government of Goa on 27.10.2022, which came into

force on 30.10.2023.

Under the Regulations of 2023, “Licence” means a stevedoring

and shore handling licence issued under regulation 4, whereas

“Licencee” mean a person to whom a stevedoring and shore handling

licence has been issued under the Regulations. It also specify that the

term “Stevedoring” shall include loading, unloading and stowage of

cargo in any form on board the vessel.

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Section 3 and 4 of the Regulation reads thus:

“3. Application.-These regulations shall apply to the

stevedoring and shore handling activities undertaken by the

agent but shall not apply to the stevedoring and shore

handling activities by the Port, Public Private Partnership

projects, Build-Operate-Transfer operations or agreements

or such other agreements as have been entered into by the

Board.

4. Licensing of stevedoring and shore handling agent.-

(1) Any eligible person fulfils the eligibility criteria can

apply for licence in writing to the Chairperson in

Form-A, alongwith the documents specified therein

and with fee as the Board may fix.

(2) The licence shall be issued to the applicant subject to

fulfillment of following criteria:

(a) the applicant is a company registered under the

Companies Act, 2013(18 of 2013) or a partnership

firm or any other legal entity;

(b) the applicant shall deposit interest free refundable

security amount of rupees five lakhs to meet any

contingency, which shall be refunded after

adjusting the claims, if any, when the licensee

ceases to operate;

(c) the applicant possesses equipments required for

stevedoring and shore handling activities as

specified by the Board;

(d) the applicant shall submit an undertaking to

employ atleast six supervisory personnel with

minimum two years of cargo handling or stowage

experience and their profiles shall be enclosed

alongwith the application.

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(3) No person shall undertake to perform the

stevedoring and shore handling activities in the port

unless he has been issued a licence under these

regulations”

31. In the wake of the aforesaid provisions, in terms of Regulation

2023 no person shall undertake the stevedoring and shore handling

activities in the port unless he has been issued a licence under the said

Regulations. However, Regulation No.3 clearly stipulate that the

Regulations shall not apply to the stevedoring and shore handling

activities by the Port, Public Private Partnership projects, Build-

Operate-Transfer operations or agreements or such other agreements

as have been entered into by the Board.

32. The Major Port Authorities Act, 2021 which is an Act to

provide for regulations, 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, under Chapter III has set

out the norms for management and administration.

The Board of Major Port Authorities constituted under Section 3

of the Act is deemed as successor of Board of Trustees of Major Port

from the date of its constitution and all the assets and liabilities of

Board of Trustees are transferred to and vested in the Board.

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33. Section 22 of the said Act prescribe for usage of Port assets by

the Board and since it is the contention advanced by Mr Diniz that the

procedure contemplated therein is not followed, we deem it

appropriate to re-produce Section 22, which reads thus :

“22. Usage of port assets by Board.- (1)

The Board of each Major Port shall be entitled to

use its property, assets and funds in such

manner and for such purposes as it may deem

fit for the benefit of that Major Port.

(2) All port assets shall be used and developed as

per the regulations made by the Board in that

behalf and to the exclusion of any municipal,

local or Government regulation:

Provided that the manner of any contract or

arrangement by the Board for sale of land or

immovable property, or period and manner for

lease of land or immovable property for port

related use and non-port related use, shall be in

such manner as may be prescribed:

Provided further that the tenure for lease of

land or immovable property for Public Private

Partnership projects by the Board shall be

subject to the policy notified by the Central

Government in respect of such Public Private

Partnership projects.

(3) ...

34. With this provision in background, the submission advanced on

behalf of the Petitioners is that the Port which is entitled to use its

property, assets and funds, shall permit it to be used and developed as

per the Regulations made by the Board in that behalf and the manner

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of a contract or arrangements by the Board in sale of its land or

immovable property or period and manner for lease of the land for Port

related use and Non-Port related use, shall be in such manner as may

be ‘prescribed’.

The Act of 2021 has conferred power on the Board, to make

Regulations consistent with this Act and the rules made thereunder to

carry out the provisions, with the previous approval of the Central

Government and after previous publication by a Notification. As per

sub-clause (2) of Section 72, the Regulations may provide for various

matters including; (d) the use and development of the port assets under

sub-section (2) of section 22; (e) The form and manner in which

contracts shall be made by the Board under sub-section (3) of section

24.

35. It is not in dispute that Respondent No.4 resolved to outsource

the “existing Operations and Maintenance” of Berth Nos. 10 and 11 to

private operators on PPP basis for Concession period of 30 years.

The aforesaid Berths constructed in the year 1985 and 1994

respectively, are continuous Berths with a total length of 550ms having

consent to operate/handle 6 MTPA. The Port handled its operations

through a harbour mobile crane which are outlived its use and was

frequently under breakdown which impacted the traffic on the Port.

The Port had submitted a proposal for procurement of two harbour

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mobile cranes of 120 MT capacity each for estimated cost of Rs.168.24

Crores including its operation and a request was made for financial

assistance.

In the meeting held by the Board on 29.03.2022, a decision was

taken to outsource the existing operations of berth No.10 and 11 as it

was foreseen as the only viable solution. For this purpose, the

Mormugao Port Trust submitted the draft of its proposal to the

Government, Ministry of Ports along with the feasibility report, duly

concurred by the Board of Trustees for its approval.

The reply was received from the Ministry of Ports on 20.04.2022,

in response to the SFC proposal by stating that no

upgradation/mechanisation of the berths has been envisaged in the

proposal and therefore the proposal did not appear viable. It was also

suggested that the Mormugao Port Authority had submitted a proposal

to Sagarmala Wing for procurement of cranes, etc involving a CAPEX

of Rs.170 Crores and this may form part of the SFC proposal and

therefore it was suggested to revisit the proposal and re-structure the

project suitably considering the upgradation/mechanisation of the

existing berths to Private Public Partnership (PPP Mode) entailing

capacity addition and ensuring efficiency in the operations.

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Accordingly, a fresh proposal was prepared and pursuant to the

meeting of the SFC held under the Chairmanship of Secretary (Port,

Shipping & Waterways) on the projected proposal ‘Operation and

Maintenance of Berth no.10 and 11 on PPP basis at Mormugao Port’.

The Meeting of the SFC contemplated installation of 2 HMCs,

Mobile Hopper with conveyor systems, and other allied equipment with

the stipulation that the Concessionaire will pay to the Port royalty per

tonne of cargo handled, with all cargo related charges being collected

by the Concessionaire. The estimated project cost was worked out as

Rs.139.63 Crores. The SFC recommended the proposal with the

expectation that the traffic at the Port will increase significantly in the

coming years.

36. In the wake of the aforesaid decision, RFQ was published on e-

portal and port website on 03.03.2023, and it was opened on

26.04.2023 with the participation of three bidders, and M/s. Delta

Infra Logistics(Worldwide) Ltd being prequalified for RFP stage. Upon

scrutiny, it emerged as the successful bidder and the tender was

allotted in its favour at offered price of 126.55 as Royalty per tonne of

cargo handled and a letter of Award was issued by the Port on

27.10.2023.

A copy of the Concession Agreement executed between

Respondent No. 1 and 3 for operation and maintenance of berth No. 10

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and 11 is placed before us along with the affidavit filed by Respondent

No.1.

The Concession Agreement dated 14.12.2023 record a procedure

that has been followed by the Concessioning Authority which has

accepted the proposal of the Concessionaire, being created as a Special

Purpose Company in India to implement the project. The Agreement

clearly contemplate the Concession awarded in favour of the

Concessionaire by stating that in consideration of the Concessionaire

agreeing to pay to the Concessioning Authority, the licence fee and the

royalty, and performing it’s obligations set out in the Agreement, it is

conferred with an exclusive licence for designing, engineering,

financing, constructing, equipping, operating, maintaining replacing

the project facilities and services as per the scope of work.

The Concession is granted for a period of 30 years, during which

the Concessionaire is authorised and obliged to implement the project

and provide project facilities and services as per the scope of work in

accordance with the provisions thereof.

37. In consideration of the Concessionaire agreeing to perform and

discharge its obligations, the Concessioning Authority granted to the

Concessionaire the exclusive right to enter upon, occupy and use the

project site and Ports assets for the purpose of implementing the

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project and provision of project facilities and services in accordance

with the Agreement.

The Concessionaire accepted the possession of the Ports assets

and project site on 'as is where is' basis.

The Agreement include other details but since we are not called

upon to pronounce upon a detailed reference thereof is unwarranted

however, it must be noted that the Agreement enlisted the obligation to

the Concessionaire to manage, operate, maintain and repair the project

facilities and services entirely at its costs, charges, expense and risk in

accordance with the Agreement on the Berth terminals. The

corresponding obligations are also imposed on the Concessioning

Authority, which shall offer to the Concessionaire, the scheduled entry,

berthing and sailing of the vessels, pilotage and stowage on a non-

administrative basis subject to norms and sailing schedule as well as

travel and maintenance of general Port infrastructure.

38. The Concession Agreement read with terms of the RFQ make it

clear that the Respondent No.1 invited the tender by highlighting the

scope of work as below:

“i) Capital Investment for procurement of 2 nos

HMC, mobile hopper with conveyor systems,

Environment protection measures, Re-roofing

of T1 shed with modular structures, structural

repairs and replacement of sheets and flooring

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of T2 and T3 sheds, other civil and electrical

works including roads.

ii) Operations, maintenance and management

of berths 10 & 11.

iii) Undertaking allowed commercial activities

at the Project Site.”

The PPP format contemplate “Design, Build, Finance, Operate and

Transfer” (DBFOT). Since the scope of the work entail investment by

the bidder and the project operates on PPP format, the successful

bidder, vide the Concession Agreement was conferred with exclusive

right for operating and maintenance of Berth Nos. 10 and 11 at

Mormugao Port Trust. The corresponding obligation of the bidder

extended to installation of 2 HMCs of 100MT each mobile whereas and

other necessary works so as to successfully create capacity to handle

bulk, traffic bulk cargo about 6.00 million tons per annum and the

management, operation, and maintenance thereof. Through

participatory public process, the Respondent No.2 was selected as a

successful bidder, which resulted in execution of the agreement with

the aid of Respondent no. 3 for implementing the project.

39.The Maritime India Vision (MIV) 2030 of the Ministry of Ports,

Shipping and Waterways, Government of India, has recognised that the

country’s maritime sector plays a crucial role in the overall trade and

growth of the country with 95% of the country’s trade volume and 65%

of the trade value being undertaken through maritime transport. With

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the objective of propelling India to the forefront in Global Maritime

Sector, the Ministry formulated the Vision (MIV) 2030 a blueprint to

ensure coordinated and accelerated growth of India’s maritime sector

in the next decade.

The MIV, 2030 is formulated in consultation with public and

private sector stakeholders, comprising ports, shipyards, inland

waterways, trade bodies and associations, national and international

industry and legal experts and it aim at enhancing logistic efficiency of

the Ports through technology and innovation as well as enhancing the

global share of the country in shipbuilding, repair and recycling. The

Vision document include the Mormugao Port as a port of South MH

and Goa cluster.

Recognising that India has 5 major ports and two non-major

ports with significant opportunity to set up Mega Ports and compete

with global ports, the vision document identify that for India

transhipment hub to be successful in attracting traffic, it must make the

ports economically viable for shipping lines to invest in capital cost of

shifting existing operations as well as to provide an economic incentive

for liners to shift and incur the cost of re-configuring of their routes and

also to counter the cost of additional shipping time for feeder traffic.

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The Vision document also focus on infrastructure modernisation

by identifying and prioritizing 39 berths across Major Ports for

landlord model adoption in Phase-I and berth No.9, 10 and 11 of

Mormugao Port Trust are identified for landlord model adoption with

timeline of 2022.

The document emphasise the need for increased mechanization

at Indian ports where all berths should be adequately equipped with

high capacity cranes, conveyor systems, Harbour Mobile Cranes

(HMC’s), grab unloaders, etc. by adopting five world-class

mechanization models to be evaluated by Major ports to improve berth

productivity. The mechanization of 21 berths across Major Ports in

Phase-I cover the Mormugao Berth Nos. 9 and 10.

The Vision 2030 assist the potential impact of economy, trade by

analysing the factor of creation of additional jobs, from the point of

investment, cost savings to EXIM clients with reduced cost per

transshipment container. The Maritime India Vision (MIV), 2030

which intend to take India to global maritime leadership has

encouraged the PPP model and specifically targeted the Mormugao

Port.

40. We find the decision of Mormugao Port Authority to be in tune

with the Maritime India Vision (MIV), 2030 and with the documents

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placed on record along with the affidavit in reply we note that all the

while the Central Government was kept in the loophole, before said

decision was taken to float a tender for operation and maintenance of

berth no.10 and 11 to private operators on PPP basis. The draft of the

Concession Agreement as well as the letter of Award, received approval

from the Government of India, and therefore, we do not find any merit

in the submission advance on behalf of Petitioner No.1 that the

permission of the Central Government was not sought.

41. Coming to the objection as regards exercise of the said power

without framing of such Regulations by the Board and this being in

violation of Section 22 of the Major Port Authorities Act, 2021, we have

noted that sub-section (1) of Section 22 has conferred on the Board of

each Major Port, the power to use its property, assets and funds in such

manner and for such purposes as it may deem fit for the benefit of that

Major Port.

Before the RFQ was published and bids were invited, a

threadbare discussion and deliberations took place in the Standing

Finance Committee (SFC) of the Port and all the while the Ministry of

Ports, Shipping and Waterways was privy to the said discussion and we

find presence of the Government of India in the meeting held under the

chairmanship of Secretary (Ports, Shipping and Waterways) and

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therefore, it is well assumed by us, that the activity undertaken by the

Board in consultation with the Central Government was for the benefit

of the Port.

The arguments advanced on behalf of the Petitioners that in

absence of the Regulations being framed, the power could not have

been exercised, is a misreading of Section 22 of the Act of 2021.

Sub-section (1) of Section 22 do not make exercise of this power

subject to formulation of Regulations, as it is a power to be exercised by

the Board, with a freehand being given to the Board to use its property,

assets and funds, which it deem fit for the benefit of the Port. It is to

note that the Major Port Authorities Act, 2021 is a recent enactment

and though there is a specific power conferred on the Board to make

Regulations, the Regulations are not yet framed but merely on that

count, Sub-clause (1) of Section 22 cannot be reduced nugatory and it

cannot be said that the Board shall not be permitted to use its property,

assets and funds, even if it is of the opinion that it is for the benefit of

the Port.

42. A similar situation had arisen before the Apex Court in case of

Surinder Singh (supra), when under the Displaced Persons

(Compensation and Rehabilitation) Act, 1954, providing for disposal of

urban agricultural property, was questioned on the ground that

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Government had not framed regulations and the use of the word

“Subject to any rules framed” was held to be not authorising the

exercise of the powers since no rules were framed by the Central

Government with regard to disposal of urban agricultural property,

forming part of compensation. The High Court held that unless rules

are framed as contemplated by the Act, the Central Government has no

authority in law to issue executive directions for the sale and disposal of

urban agricultural property.

The Apex Court found this view to be incorrect and the following

observations are relevant to take note of:

“6. In our opinion the view taken by the High Court

is incorrect. Where a statute confers powers on an

authority to do certain acts or exercise power in

respect of certain matters, subject to rules, the

exercise of power conferred by the statute does not

depend on the existence of rules unless the statute

expressly provides for the same. In other words

framing of the rules is not condition precedent to the

exercise of the power expressly and unconditionally

conferred by the statute. The expression “subject to

the rules” only means, in accordance with the rules, if

any. If rules are framed, the powers so conferred on

authority could be exercised in accordance with these

rules. But if no rules are framed there is no void and

the authority is not precluded from exercising the

power conferred by the statute. In T. Cajee v. U.

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Jormanik Siem [AIR 1961 SC 276 : (1961) 1 SCR 750]

the Supreme Court reversed the order of the High

Court whereby the order of District Council

removing Siem, was quashed by the High Court on

the ground that the District Council had not framed

any rules for the exercise of its powers as

contemplated by para 3(1)(g) of 6th Schedule to the

Constitution. The High Court had taken the view that

until a law as contemplated by para 3(1)(g) was

made there could be no question of exercise of power

of appointment of a Chief or Siem or removal either.

Setting aside the order of the High Court, a

Constitution Bench of this Court held that the

administration of the district including the

appointment or removal of Siem could not come to a

stop till regulations under para 3(1)(g) were framed.

The view taken by the High Court that there could be

no appointment or removal by the District Council

without framing of the regulation was set aside.

Similar view was taken by this Court in B.N.

Nagarajan v. State of Mysore [AIR 1966 SC 1942 :

(1966) 3 SCR 682 : (1967) 1 Lab LJ 698] and Mysore

State Road Transport Corpn. v. Gopinath [AIR 1968

SC 464 : (1968) 1 SCR 767 : (1968) 2 Lab LJ 144] In

U.P. State Electricity Board v. City Board, Mussoorie

[(1985) 2 SCC 16 : AIR 1985 SC 883 : (1985) 2 SCR

815] validity of fixation of Grid Tarrif was under

challenge. Section 46 of the Electricity (Supply) Act,

1948 provide that tariff known as the Grid Tariff

shall be fixed from time to time in accordance with

any regulations made in that behalf. Section 79 of the

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Act conferred power on the Electricity Board to

frame regulations. The contention that Grid Tariff as

contemplated by Section 46 of the Electricity

(Supply) Act could not be fixed in the absence of any

regulations laying down for fixation of tariff, and

that the notification fixing tariff in the absence of

such Regulations was illegal, was rejected and this

Court observed: (SCC pp. 20-21, para 7)

“It is true that Section 79(h) of the Act authorises the

Electricity Board to make regulations laying down

the principles governing the fixing of Grid Tariffs.

But Section 46(1) of the Act does not say that no

Grid Tariff can be fixed until such regulations are

made. It only provides that the Grid Tariff shall be

in accordance with any regulations made is this be-

half. That means that if there were any regulations,

the Grid Tariff should be fixed in accordance with

such regulations and nothing more. We are of the

view that the framing of regulations under Section

79(h) of the Act cannot be a condition precedent for

fixing the Grid Tariff.”

Recording that under the Act, the Central Government has ample

power to take steps for disposal of pool property by auction and it has

authority to issue administrative directions and particularly when

neither Section 8, 16, 20 nor Section 40 laid down a condition that

payment of compensation by sale of the pool property to a displaced

person shall not be done unless rules are framed, it was held that

framing of Rules regulating the mode or manner of disposal of urban

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agricultural property by sale to a displaced person is not a condition

precedent for the exercise of power by the authorities. The view taken

by the High Court was therefore not found to be sustainable.

43. The decision taken in the case of Sonvir alias Somvir v/s.

State (NCT of Delhi) (supra) has also reiterated the said position, by

relying upon its earlier decision in the case of Surinder Singh v/s.

Central Government (supra) in its applicability to the provisions of

Section 4 and 5 of the Identification of Prisoners Act, 1920.

Section 3 of the Act provide for taking of measurement of

convicted persons and it contemplate that every person who has been

convicted for an offence punishable with rigorous imprisonment for a

term of one year or upwards, or of any offence which would render him

liable to enhanced punishment on a subsequent conviction or ordered

to give security for his good behaviour, shall if so required, allow his

measurements and photograph to be taken by a Police Officer in the

prescribed manner.

Section 4 of the Act deal with taking of measurement of non-

convicted persons, in the prescribed manner. Section 5 of the Act deal

with the power of a magistrate to order a person to be measured or

photographed and it state that if a Magistrate is satisfied that it is

expedient to direct any person to allow his measurements or

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photograph to be taken, he shall attend at the time and place specified

in the order and allow his measurements or photograph to be taken, as

the case may be, by a Police Officer.

Taking note of the scheme of the Act, being that Section 3, 4 and

5 are separate and independent provisions pertain to taking of

measurements, the case involved taking of fingerprints of the appellant

by the Police Officer after he was arrested which was referable to

Section 4 of the Act, the question that fell for consideration was

whether in absence of the manner prescribed, in which the

measurement and photograph are to be taken, the evidence collected

would be admissible and whether the power of the Police Officer cannot

be exercised till the State make rules under Section 8.

Dealing with the aforesaid contention, it was held that the power

given to the Police Officer to ask the person arrested to give his

measurement is a substantive power and this power cannot be curtailed

only because of imposition of condition that such measurement is “to

be taken in the prescribed manner”, and if there is any prescribed

manner that cannot be breached by the Police Officer. Taking of the

measurement in the prescribed manner is a procedural part of the

section which does not affect the substantive power of the Police Officer

to ask the accused who is under arrest, to give his measurement. The

argument that unless rules are framed under Section 8, the power

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cannot be exercised, is observed, to be not in consonance with the

purpose and object for which Section 4 was enacted. It is held that the

argument advanced on behalf of the appellant that in absence of the

Rule being framed, Section 5 shall not be resorted to by the

Investigating Officer, was also not correct argument since the power to

be exercised by the Police Officer under Section 4 was not permitted to

be exercised with the condition that it can be exercised only after

obtaining the order under Section 5.

The conclusion drawn from the detailed discussion with specific

observation by the Apex Court in the case of Surinder Singh (supra)

reads to the following effect:-

“78. What has been laid down above is fully attracted

in the facts of the present case. Non-framing of any

rules under Section 8 by the State Government does

not prohibit the exercise of powers given under Sec-

tions 3 and 4 of the Act. Exercise of power under Sec-

tions 3 and 4 is hedged by conditions as prescribed

but in a case where no rules have been framed, the

authorities as empowered under Sections 3 and 4 are

not denuded of their powers to act under Sections 3

and 4. In a case, the interpretation put by the learned

counsel for the appellant that in the absence of rules

framed under Section 8, no power can be exercised

under Sections 3 and 4 is accepted, the provisions of

Sections 3 and 4 shall become dead letter, which has

never been the intention of the legislature in enacting

the 1920 Act.”

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44. By applying the aforesaid proposition of law to the present

scenario, where power under sub-section (1) of Section 22 is sought to

be restricted on the ground that no Regulations are framed and

therefore this power could not be exercised, according to us, the

argument deserve rejection, since we find that if the Trust under the

Major Port Authorities Act, 2021, which is enacted to provide greater

autonomy and flexibility to the Major Ports and to professionalise their

governance, and the statute intended to enable the Board of Major Port

Authorities to use its property, assets and funds in such manner and for

such purpose as it may deem fit so as to benefit the Port, in our

considered view, the exercise of this power in absence of Regulations

cannot be called in question as long as the decision of the Major Port is

for the benefit of the Port.

Sub-Section (2) of Section 22 stipulate the Port assets to be used

and developed as per the regulations made by the Board with an

embargo that the manner of any contract or arrangement by the Board

either in sale of its land or for lease shall be in such manner as may be

prescribed and with a further stipulation that the tenure for lease of

land for Public Private Partnership projects by the Board shall be

subject to the policy notified by the Central Government.

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In the present case we find that the decision taken by the Port to

tender its open Berth nos. 10 and 11 for management on PPP basis, was

with the approval of the Central Government and rather it advances the

object underlining the Maritime India Vision, 2030.

We are therefore not convinced by the submission advanced by

Mr Diniz that the power cannot be exercised by the Board in absence of

regulations being framed under Section 22(2).

45. The contention of the Petitioner that despite the licence being

valid up to the year 2027, by restricting their operations on berth no.10

and 11, their fundamental right under 19(i)(g) has been violated, we do

not find substance in the said submission on two counts, as firstly, in

law, the right to carry on their trade or business is not an absolute right

and the restrictions, which are imposed, whether they are reasonable,

fair, non-arbitratory and non-discriminatory can be decided by the

Court in exercise of the power for judicial review.

The Respondent No.1 has filed an affidavit on 30.04.2025

making a categorical statement as below:-

“2. I say that in terms of the Concession Agreement

dated 14

th

December 2023, the operations at Berth Nos

10 and 11 of the Mormugao Port have been commenced

from 04

th

April 2025 by Delta Ports Mormugao Ter-

minal Private Limited, Respondent No.3 herein.

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3. I say that the total quantity handled at Berth Nos 10 & 11 at

Mormugao Port for the period from 04

th

April 2025 to 29

th

April

2025 is 1,56,766 MT. Out of this total quantity, the Respondent

No.3 had handled a quantity of 1,22,339 MT and the balance

quantity of 34,427 MT is the liquid cargo handled by the Mor-

mugao Port Authority.

4. I say that during the said period from 04

th

April 2025 to 29

th

April 2025, the licensed stevedores of Mormugao Port have

handled a total quantity of 2,72,740 MT at West Break Waters

(WOB), Mooring Dolphins 1 & 2 (MD1-2) and the Finger Jetty,

the details whereof are given hereunder:-

i. Stevedore, Bhavani Shipping Services (I) Pvt. Ltd.

has handled a total quantity of 2,10,360 MT at West

of Break Water (WOB);

ii. Stevedore, Delta Infra Logistics (Worldwide) Ltd.

has handled a total quantity of 56,370 MT at Mooring

Dolphins 1&2. Further it is stated that they are a

member of the Mormugao Stevedores Association.

iii. Stevedore, M/s Rodrigues & Associates has

handled a total quantity of 6,010 MT at the Fin-

ger Jetty.”

46. There is no denial to the aforesaid statement in the additional

rejoinder filed by the Petitioner on 01.05.2025 but the restricted

contention is three licenced stevedores (out of 12) have managed to

undertake operations at WOBs and finger jetties but 9 other licenced

stevedores were not able to operate at all as Berth nos. 10 and 11 have

now been handed over to Respondent Nos.2 and 3.

Going by the affidavit, the Petitioner no.1 has admitted that

2,16,370 MT of cargo is handed over by other licenced stevedores.

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47. The aforesaid statement placed before us make it clear that it is

not that the Petitioners who are the licenced stevedores are completely

out of their business as they have carried out huge activity of

stevedoring to the exclusion of berth no.10 and 11 and have been given

the business. We are informed by the Port that there is sufficient

business in the form of stevedoring and of shore handling which is

available to the members of the Petitioner No.1 Association and,

therefore, we are unable to accept the submission advanced on their

behalf that by permitting the private operator, i.e. Respondent No.2

and 3 to operate and manage Berth nos.10 and 11, their right to

livelihood has been taken away. Respondent No.1 Port has allotted

stevedoring licence undisputably for operating throughout the Port but

we find that no grievance is made by the Petitioners when two of its

berths were permitted for captive use by the two companies.

When Berth nos. 10 and 11 are handed over to Respondent Nos.2

and 3 for enhancing the activity on the Port which was otherwise being

conducted in a slow motion as the manner of lifting of cargo consumed

more time, permitting less handling of the cargo and less docking of the

vessels, we find the decision of the Port to be in consonance with the

Vision Policy of the Government of India and with the betterment of

the traffic at the Port, and particularly when it is not the case that the

Petitioner No.1 and members of the Petitioner No.1 Association are

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completely debarred from carrying out stevedoring activity as the

loading of the cargo coming by rakes and transported through finger

jetties as well as lowering of cargo coming by rakes and barge and

exported through mooring dolphins or finger jetties, the members of

the Petitioner No.1 Association are permitted to operate. The Trade

circular issued by the Respondent No.1 Authority clarify that there

should be no overlapping of PPP project areas and other Port areas and

a direction is issued that all cargo equipment/cranes lying in the PPP

operated areas will have to be shifted out of that area leaving clear cut

demarcated areas for the licenced stevedores.

In these circumstances, we do not find that the Petitioners are

deprived of their right as to livelihood as, being licenced under the

Regulations of 2023, they are permitted to operate in the Port except at

Berth nos. 10 and 11 and the latest affidavit filed by the Port clearly

indicate that the stevedoring activity was undertaken by the members

of the Petitioner No.1 Association despite the Respondent No.2 and 3

operation on Berth nos. 10 and 11. Since we do not find any merit and

substance in the submissions raised on behalf of the Petitioners, the

Petition is liable to be dismissed.

Hence, we discharge the Rules and dismiss the Petition.

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48. Once we have arrived at the aforesaid conclusion, we are also not

persuaded to entertain the Contempt Petition alleging disobedience of

the Order dated 10.03.2025 and therefore we dismiss the Contempt

Petition as, according to us, no case for entertaining the same is made

out.

NIVEDITA P. MEHTA, J. BHARATI DANGRE, J.

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