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HIGH COURT OF CALCUTTA
P. B. Mukharji, H. K. Bose
COMMISSIONERS FOR THE PORT OF CALCUTTA - Appellant
Versus
ASIT RANJAN MAJUMDER - Respondent
Appeal 41 Of 1961
Decided On : MAY 2, 1961
BYE-LAW - PORT OF CALCUTTA - REGULATION OF EMPLOYMENT OF STEVEDORES - VALIDITY OF BYE-LAW 4A AND CLAUSE 15(1)(C) OF THE SCHEME OF 1956 - FUNDAMENTAL RIGHT TO CARRY ON BUSINESS - REASONABLENESS OF BYE-LAW - SEVERABILITY OF INVALID PROVISIONS.
Fact of the Case:
The petitioner, a citizen of India, carried on business as a stevedore at the Port of Calcutta. He applied to the Calcutta Dock Labour Board for a stevedore license and registration as an employer under the Dock Workers (Regulation of Employment) Scheme, 1956. The Board refused to grant the license, citing Bye-law 4a of the Commissioners for the Port of Calcutta and Clause 15(1)(c) of the Scheme, which required a license from the Port Authority before registration. The petitioner challenged the validity of Bye-law 4a and Clause 15(1)(c), claiming that they violated his fundamental right to carry on business under Article 19(1)(g) of the Constitution. The High Court held that Bye-law 4a was invalid, but upheld the validity of Clause 15(1)(c) after severing the provision requiring a license from the Port Authority. The Dock Labour Board and the Commissioners for the Port of Calcutta appealed to the Supreme Court.
Finding of the Court:
The Supreme Court held that the petitioner did not have a fundamental right to carry on business in the dock area owned and controlled by the Commissioners for the Port of Calcutta. The Court found that Bye-law 4a was validly made and confirmed by the Central Government, and that it was not unreasonable or vague. The Court also upheld the validity of Clause 15(1)(c) of the Scheme, holding that the provision requiring a license from the Port Authority was severable and did not invalidate the entire clause.
Issues: 1. Whether the petitioner had a fundamental right to carry on business in the dock area owned and controlled by the Commissioners for the Port of Calcutta? 2. Whether Bye-law 4a of the Commissioners for the Port of Calcutta was validly made and confirmed by the Central Government? 3. Whether Bye-law 4a was unreasonable or vague? 4. Whether Clause 15(1)(c) of the Scheme of 1956 was valid, particularly the provision requiring a license from the Port Authority?
Ratio Decidendi: 1. The Court held that the petitioner did not have a fundamental right to carry on business in the dock area owned and controlled by the Commissioners for the Port of Calcutta. The Court reasoned that the right to carry on business is not inherent in all citizens and that it is subject to reasonable restrictions imposed by the executive authority in the interest of public convenience. The Court also noted that the dock area is a special area of significance and importance for national security and other reasons, and that the management and control of the Port have been recognized by judicial decisions as a sovereign function of the State. 2. The Court held that Bye-law 4a was validly made and confirmed by the Central Government. The Court found that the Commissioners for the Port of Calcutta had the power to make bye-laws under Section 126 of the Calcutta Port Act, and that the Central Government had the power to confirm such bye-laws under Section 126(3) of the Act. The Court also found that the Central Government's confirmation of Bye-law 4a was not a mere rubber-stamp exercise, but that the Government had applied its mind to the matter and made necessary corrections. 3. The Court held that Bye-law 4a was not unreasonable or vague. The Court found that the bye-law was sufficiently clear and intelligible, and that it provided adequate guidance to those who were required to comply with it. The Court also noted that the bye-law was made by a representative and expert body, the Commissioners for the Port of Calcutta, and that it had been confirmed by the Central Government. 4. The Court held that Clause 15(1)(c) of the Scheme of 1956 was valid, particularly the provision requiring a license from the Port Authority. The Court found that the provision was a reasonable restriction on the right to carry on business in the dock area, and that it was necessary to ensure the efficient and orderly operation of the Port. The Court also held that the provision was severable from the rest of Clause 15(1)(c), and that its invalidity did not invalidate the entire clause.
Final Decision: The Supreme Court dismissed the appeals of the Dock Labour Board and the Commissioners for the Port of Calcutta. The Court upheld the validity of Bye-law 4a and Clause 15(1)(c) of the Scheme of 1956, and held that the petitioner did not have a fundamental right to carry on business in the dock area owned and controlled by the Commissioners for the Port of Calcutta.
( 1 ) THESE six appeals raise common questions of fact and law. It is agreed by Counsel in each of these appeals that one judgment should dispose them alt as has been done by the judgment under appeal, and that our judgment in Appeal No. 35 of 1961, between Asit Ranjan Majumdar and Calcutta Dock Labour Board and Commissioners for the Port of Calcutta will accordingly, do so.
( 2 ) THE petitioner challenges Bye-law 4a, old and new of the Commissioners for the Port of Calcutta made under Section 126, the Calcutta Port Act, 1890. He also challenges Clause 15 (1) (c) of the Scheme made under the Dock Workers' Regulation of Employment Act, 1943. In the petition he prayed for a Mandamus calling upon the appellant Dock Labour Board to register his name as a registered employer within the meaning of the Dock Workers Regulation of Employment Act, 1948 and the Scheme made thereunder in 1956. He also prayed for a Mandamus upon the Commissioners for the Port of Calcutta to forbear from giving effect to Bye-law No. 4a, and to permit him to carry on business as a Stevedore for the Port of Calcutta.
( 3 ) THE learned Judge in making the Rule absolute ordered a writ of Mandamus only against the Calcutta DOCK Labour Board commanding it to deal with the application of the petitioner for registration as if Clause 15 (1) (c) of the Calcutta Dock Workers Regulation of Employment Scheme, 1956 did not exist in the said Scheme and in accordance with the law. No Writ was issued against the Commissioners for the Port of Calcutta.
( 4 ) THE petitioner's case briefly is as follows. He is a citizen of India and carries on business under the name and style of Messrs. East India Shipping Corporation. He is a steamship agent among others of Navigation Maritime Bulgaria which is said to be a State-owned steamship company of the Government of Bulgaria. He is also a member of the Calcutta Port Stevedores Association. Before the inception of the Calcutta Dock Labour Board in 1948 he was connected with the shipping business and had worked as a stevedore at the Port of Calcutta in his capacity as Chairman of the Board of Directors of Messrs. Liners (Agency) Ltd. until 1954, as stevedores. He says he was a member of the Master Stevedores Association, Calcutta, until the end of 1952 where he represented the said Liners (Agency) Ltd. He left Liners (Agency) Ltd. and joined another company called Messrs. B. Ghosh and Co. Private Ltd. , Stevedores, who were registered under the Calcutta Dock Workers (Regulation of Employment) Scheme, 1951, and worked with the said company till the end of the year 1955. He therefore claims considerable knowledge in stevedoring and reputation and efficiency in the shipping line. Since 1956 he has been doing this business under the name and style of Messrs. East India Shipping Corporation as its sole proprietor. He became desirous of carrying on business as stevedores in the Port of Calcutta and applied on or about January 28, 1959 to the Calcutta Dock Labour Board for issue of a stevedore licence in the name of the petitioner of his business to facilitate registration as stevedore under the Scheme of 1956. He was told that under Clause 15 (1) (c) of the Scheme of 1956 he had to have a licence from the Port Commissioners before his registration on the register of employers. After some ineffective correspondence with the Port Commissioners as well as the Dock Labour Board the position reached was that the Port Commissioners told the petitioner that the issue of a licence to him was still under consideration. No formal order has been passed either by the Port Commissioners or by the Dock Labour Board on his application. The petitioner having failed to secure registration and the licence, moved this Court by a petition on January 12, 1960, complaining that the condition requiring a licence under Bye-law 4a or under Clause 15 (1) (c) of the 1956 Scheme was bad, invalid and unconstitutional.
( 5 ) D. N. Sinha, J. , who
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