Mahesh
Travels & Tours & Anr Vs. Commissioner of Police & Ors [1989] INSC
160 (1 May 1989)
Pathak,
R.S. (Cj) 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.
HEAD NOTE:
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 826 imposition of a roster, and that this action
was beyond the 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 prohibit.
(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 appellant'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
Council, [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
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. [831C-D] 827
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
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. [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]
CIVIL
APPELLATE JURISDICTION: Civil Appeals Nos. 30083009 of 1984.
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
cooperative 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 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 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 enactment for the time being in force, make such rules, consistent with
this Act, as it thinks necessary for any of the following purposes, namely:
829
(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 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 compelled 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 landing 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 traffic 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 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 appellants 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 Police. 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. Venkataraman 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 overcrowding and chaos and touting for passengers.
This is a matter for the judgment of the authority concerned and exfacie 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 roster has been prepared and is
being imposed without recourse to any statutory provision enabling the third
respondent 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 circumstances. 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 landing 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
passengers. 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.
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