Full Judgment Text
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PETITIONER:
MAHESH TRAVELS & TOURS & ANR. ETC.
Vs.
RESPONDENT:
COMMISSIONER OF POLICE & ORS.
DATE OF JUDGMENT01/05/1989
BENCH:
PATHAK, R.S. (CJ)
BENCH:
PATHAK, R.S. (CJ)
OZA, G.L. (J)
CITATION:
1989 AIR 1525 1989 SCR (2) 825
1989 SCC Supl. (2) 303 JT 1989 (2) 476
1989 SCALE (1)1182
ACT:
Bombay Police Act, 1951: Section 67--Police
authorities--Right of--To prepare and enforce roster system
for operating launch services.
Port of Bombay Passenger Boat Rules, 1962: Rules 4, 6, 7
and 19--Regulation of the use of landing place by
launches--Framing of roster and its imposition--Only method
of regulation.
HEADNOTE:
The appellants were operating launch services for joy
rides, film shooting, etc. from Appollo Pier or Gateway of
India to Elephanta Island in Bombay. Respondent 7 was a
cooperative association of launch owners also engaged in the
same activities. The members belonging to the associations
were operating launch services turn by turn on voluntary
roster system to avoid unhealthy competition.
When efforts were made by the police and the Port Trust
Authorities to resolve the difference in the operation of
launch services between the association and the appellants
failed, a roster system was chalked out on the direction of
the Deputy Conservator of Bombay Port Trust which was sought
to be enforced by the police. When some employees working in
the launches were arrested for failure to act according to
the roster system, the appellants filed writ petitions
claiming that the police and the Port Trust Authorities had
no authority to compel them to follow the roster system.
The High Court dismissed the writ petitions holding that
the Bombay Port Trust Rules conferred powers upon the Deputy
Conservator to give directions for berthing and for mooring
and unmooring the vessels in the Port, and that apart the
police and the Port Trust Authority had adequate powers
under the Port of Bombay Passenger Boat Rules, 1962 and
section 67 of the Bombay Police Act to regulate the manner
in which the launches carried Passengers.
In the appeals to this Court, it was contended On behalf
of the appellants that: (1) the Deputy Conservator of Bombay
Port Trust, respondent No. 3 was not empowered in law to
devise an order of the
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imposition of a roster, and that this action was beyond the
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powers conferred by the Indian Ports Act 1908, the Bombay
Port Rules and the Port of Bombay Passengers Rules 1962. (2)
Respondent No. 3 had purported to act under Rules 4 and 19
of the Bombay Port Rules, Rule 4 of the Port of Bombay
Passenger Boat Rules, and section 7 of the Bombay Police Act
in having the roster system enforced by the Inspector of
Police. (3) The roster has tendency to prohibit trade and
the power to regulate Is being misused as a power to prohib-
it. (4) The imposition of the roster is too severe a measure
to deal with the simple problem of overcrowding and chaos
and touting for passengers, (5) The provocation for devising
and imposing a roster was the complaint made by the appel-
lant’s trade rivals. and (6) The roster has been prepared
and is being enforced without recourse to any statutory
provision enabling respondent No. 3 to devise it and impose
it.
Dismissing the appeals, the Court,
HELD: 1. The roster system provides for the regulation
of traffic, so that each launch obtains an opportunity of
access to the landing place. This is not a distribution of
business, but a distribution of the time for which the
landing place can be used, and therefore, a regulation of
the use of the landing place. The roster is intended to give
effect to Rule 4 of the Port of Bombay Passenger Boats
Rules, 1962. There is no reason why recourse to a roster
system should be considered as unreasonable. [830C.F]
2. The dominant purpose of the regulation of the use of
the landing place by the launches is to prevent congestion
and a possible breach of peace. The real purpose that the
roster is intended to serve, is to ensure the even flow of
traffic at landing places. [830H; 831A]
Smt. S.R. Venkataraman v. Union of India & Anr., [1979]
2 SCC 491; Brownelis Limited v. The Ironmongers’ Wages
Board--Brownells Limited v. The Drapers’ Wages Board, [1950]
81 C.L.R. 108 and Hanson v. Radcliffe Urban District Coun-
cil, [1922] 2 Ch. 490 inapplicable.
3. All the launches owners have equitable access to the
landing place and if the other conditions for plying the
launches, such as holding of a proper licence, are satis-
fied, there is no reason why the launches, turn by turn,
cannot avail of the facility of an equitable opportunity to
use the landing place. [831C-D]
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4(a) There is no excessive invasion of the appellants
Fundamental Right to carry on business. [831E]
4(b) What should be the duration for which the appel-
lants may be allowed to use the landing place, and what
should be the turn in which such user may be permitted is
essentially a matter for the judgment of the authorities
concerned. It is not possible for the Court to adjudicate on
this point. [831E-F]
5. The disputes between the parties in relation to the
application of the roster is not a matter on which this
Court will readily enter. [831G]
6. The imposition of a roster is reasonable and the
power to impose a roster can be spelt out from the powers
conferred on the authorities under the relevant statutory
provisions. The roster is only one method of regulation.
[831H; 832A]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 3008-
3009 of 1984.
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From the Judgment and Order dated 28.11.83 of the Bombay
High Court in Appeal No. 880 of 1983.
Kapil Sibal, Harish Gajtiani, Rajiv Datta and Nitin Rout
for the appellants.
Shanti Bhushan, J. Makhija, Mrs. A.K. Verma and D.N.
Misra for Respondent Nos. 3 and 4.
G.B. Sathe and A.S. Bhasme for Respondent Nos. 1, 2 and 5.
K.K. Sanghi, Brij Bhushan and Anil Kumar Gupta for
Respondent No. 7.
The Judgment of the Court was delivered by
PATHAK, CJ. These appeals are directed against an order
of the Bombay High Court dismissing in limine the appeals
filed by the appellants herein against the judgment of a
Single Judge dismissing their writ petitions challenging the
right of the police authorities to prepare and enforce a
roster system for operating launch services between Gateway
of India at Bombay and Elephanta Island.
828
The appellants are operating launch services for joy
rides, film shootings, etc. from Apollo Pier or Gateway of
India to Elephanta Island, and respondent No. 7 is a cooper-
ative association of launch owners also engaged in the same
activity. It appears that originally the appellants were
desirous of acquiring membership of this association but
were denied entry, and thereafter it was the association
which wanted the appellants to join its membership but the
appellants declined the offer. The members belonging to the
association were operating launch services turn by turn on a
voluntary roster system to avoid unhealthy competition. It
appears that when the efforts made by the police and the
Port Trust Authorities to resolve the differences in the
operation of launch services between the association and the
appellants failed, a roster system was chalked out on the
direction of the Deputy Conservator of Bombay Port Trust
(Respondent No. 3) which was sought to be enforced by the
police. When some employees working in their launches were
arrested for failure to act according to the roster system,
the appellants filed writ petitions claiming that the police
and the Port Trust authorities had no authority to compel
them to follow the roster system. The High Court dismissed
the writ petitions holding that the Bombay Port Rules con-
ferred powers upon the Deputy Conservator to give directions
for berthing and for mooring and unmooring the vessels in
the Port and, that apart, the police and the Port Trust
authorities had adequate powers under the Port of Bombay
Passenger Boat Rules, 1962 and Section 67 of the Bombay
Police Act to regulate the manner in which the launches
carried passengers.
The only point for consideration in these appeals is
whether the Deputy Conservator of Bombay Port Trust and/or
the police had the power to prepare and enforce the roster
system.
The Port of Bombay Passenger Boat Rules, 1962 have been
framed by the Central Government in exercise of powers
conferred by Section 6(1)(k) of the Indian Ports Act 1908:
6(1) "The Government may, in addition to any
rules which it may make under any other enact-
ment for the time being in force, make such
rules, consistent with this Act, as it thinks
necessary for any of the following purposes,
namely:
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(k) for licensing and regulating catamarans plying for hire,
and flats and cargo, passenger and other boats plying,
whether for hire or not, and whether regularly or only
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occasionally, in or partly within and partly without any
such port and for licensing and regulating the crews of any
such vessels, and for determining the quantity of cargo or
number of passengers or of the crew to be carried by any
such vessels; and may by such rules provide for the feeds
payable in respect of any such license, and in the case of
vessels plying for hire, for the rates of hire to be charged
and the conditions under which such vessels shall be com-
pelled to ply for hire, and further for the conditions under
which any licence may be revoked;"
Rule 4 of the Port of Bombay Passenger Boat Rules, 1962
prescribes that boats plying for hire shall not lay beside
the landing place longer than necessary and shall obey
orders of the police for regulating the traffic. Rule 6
forbids the tindals and the boatmen to tout for hire near
the landing place.
Rule 4 of the Bombay Port Rules flamed by the Bombay
Port Trust in exercise of powers conferred under the Indian
Ports Act, 1908 prescribes that all vessels within the port
shall be bound to take up such berths as may be appointed
for them by the Deputy Conservator and shall change their
berths when required by the authorities. Rule 19 thereof
provides that all vessels within the port shall moor and
unmoor or anchor in accordance with the orders of the Deputy
Conservator.
Clauses (b) and (c) of Section 67 of the Bombay Police
Act, 1951 provide:
67. "It shall be the duty of a Police Officer--
.. .. ..
.. .. ..
(b) to keep order in the streets and at and within public
bathing, washing and landing places, fairs, temples and all
other places of public resort and in the neighbourhood of
places of public worship, during the time of public worship;
(c) to regulate resort to public bathing, washing and land-
ing places, to prevent overcrowding thereat and in public
830
ferry-boats and, to the best of his ability, to prevent the
infraction of any rule or order lawfully made for observance
by the public at any such place or on any such boat."
It is contended by learned counsel for the appellants
that the Deputy Conservator of Bombay Port Trust, respondent
No. 3 is not empowered in law to devise on order of the
imposition of a roster. It is urged that this action is
beyond the powers conferred by the Indian Ports Act, the
Bombay Ports Rules and the Port of Bombay Passenger Boat
Rules. We see no force in this contention. The roster system
provides for the regulation of traffic, so that each launch
obtains an opportunity of access to the landing place. This
is not a distribution of business but a distribution of the
time for which the landing place can be used, and therefore,
a regulation of the use of the landing place. Rule 4 of the
Port of Bombay Passenger Boats Rules, 1962 provides that
boats plying for hire should not lay along side landing
places longer than necessary and must obey the orders of the
police for regulating traffic. The boat shall not be laid
longer than actually necessary to embark or land passengers
and their luggage, but must be kept off at a distance of at
least 30 metres from the landing place or gangway ladders so
as not to obstruct the approach thereto. The licencees or
other attendants of the boat are required to obey all orders
given to them by the police for the regulation of the traf-
fic at the landing places or gangways of vessels. Consistent
with the provisions of Rule 4, which are plainly intended
for the maintenance of order, is rule 6 which prohibits
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tindais and boatmen tout for hire near the landing places to
the annoyance of people passing by, and rule 7 prohibits
them from carrying on the business of a hawker. The roster
is intended to give effect to Rule 4, and we see no reason
why recourse to a roster system should be considered as
unreasonable.
The second contention of learned counsel for the appel-
lants is that the respondent No. 3 has purported to act
under Rules 4 and 19 of the Bombay Port Rules, Rule 4 of the
Passenger Boat Rules and s. 67 of the Bombay Police Act in
having the roster system enforced by the Inspector of Po-
lice. We have considered those provisions, but we are not
convinced that the context in which those provisions operate
is in any manner inconsistent with the framing of a roster
and its imposition for regulating the use of the landing
place by the launches. On the contrary, they contemplate a
situation, and provide for just the exercise of power, which
underlies the adoption of a roster system. The dominant
purpose of the regulation of the use of the landing place by
the launches is to prevent congestion and a possible breach
of peace.
831
The submission that the roster has been devised for the
purpose of bringing about a distribution of passengers
ignores the real purpose that the roster is intended to
serve, namely to ensure the even flow of traffic at landing
places. An attempt has been made to show that the roster was
prompted by malice, and we are referred to Smt. S.R. Venka-
taraman v. Union of India & Anr., [1979] 2 SCC 491, but we
see nothing to support the plea. We cannot accept that an
ulterior motive--the regulation of business--is behind the
roster. Brownells Limited v. The Ironmongers’ Wages Board,
Brownelis Limited v. The Drapers’ Wages Board, [1950] 81
C.L.R. 108 and Hanson v. Radcliffe Urban District Council, [
1922] 2 Ch. 490 do not help the appellants.
It is then urged that the roster has the tendency to
prohibit trade and the power to regulate is being misused as
a power to prohibit. There is a fallacy in the argument.
There is no prohibition of the business at all. All the
launch owners have equitable access to the landing place and
if the other conditions for plying the launches, such as
holding of a proper; licence, are satisfied, there is no
reason why the launches, turn by turn, cannot avail of the
facility of an equitable opportunity to use the landing
place.
It is said then that the imposition of the roster is too
severe a measure to deal with the simple problem of over-
crowding and chaos and touting for passengers. This is a
matter for the judgment of the authority concerned and ex-
facie we do not see any ground for holding that the roster
system is not reasonable in the circumstances. There is no
excessive invasion of the appellants’ Fundamental Right to
carry on their business. What should be the duration for
which the appellants may be allowed to use the landing
place, and what should be the turn in which such user may be
permitted is essentially a matter for the judgment of the
authorities concerned. It is not possible for the Court to
adjudicate on this point.
Learned counsel for the appellants complains that the
provocation for devising and imposing a roster was the
complaint made by the appellants’ trade rivals. The disputes
between the parties in relation to the application of the
roster is not a matter on which this Court will readily
enter.
Finally, it is contended for the appellants that the
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roster has been prepared and is being imposed without re-
course to any statutory provision enabling the third re-
spondent to devise it and impose it. It seems to us that the
imposition of a roster is reasonable and the power to
832
impose a roster can be spelt out from the powers conferred
on the authorities under the statutory provisions already
referred to. The roster is only one method of regulation. It
may be feasible and fruitful in a certain set of circum-
stances. In another set of circumstances it may be more
appropriate to adopt some other principle for resolving the
problem of a large number of launches using a limited land-
ing place. It is apparent that passengers can be invited
into the launches only when a boat is standing against the
jetty, and it would be a matter for the launch owner to
ensure that he has a sufficient number of passengers by the
time indicated in the roster for berthing his launch at the
landing place. It must be remembered that Rule 4 envisages
an opportunity to the owner of the boat to embark passen-
gers. The opportunity is not intended for the purpose of
keeping the boat at the landing place for so long a period
of time that it can fill up with passengers. The time period
is to be determined by the need to keep the traffic moving.
The circumstances that the boat may come in and stay no
longer than is necessary to pick up the passengers indicates
that the emphasis is on the maintenance of orderly traffic
and the prevention of congestion at the landing place.
We see no substance in these appeals and we are of
opinion that they must be dismissed.
A number of suggestion were made by learned counsel for
the appellants by way of settling the controversy between
the parties in regard to the use of the landing place and
devising arrangements for securing optimum access for each
boat. These suggestions, it seems to us, can be made before
respondent No. 3, and it is open to him to consider what
would be the most equitable arrangement.
In the result the appeals are dismissed but there is no
order as to
costs.
N.V.K. Appeals dismissed.
833