(1) The petitioner firm owns 22 boats called Lighters and carries on the trade of lighters contractors and clearing and forwarding contractors at the Port of Mangalore. The Petitioner 's trade involves the transshipmentment of the Cargo from the ships to the shore and the carrying of shipments from the shore to the ships. The petitioner plies its boats for the aforesaid purpose of transhipment.
(1a) In the year 1962 the petitioner built a Tug of its own called MUBARAK registered under the Merchants Shipping Act, 1958. The petitioner used the said Tug MUBARAK to tow its boats between the ships and the harbour. The Port Authorities in May 1962 requested the petitioner to stop the towage operations until further orders. The petitioner also applied for a Harbour Craft License in respect of the Tug MUBARAK under the Indian Ports Act, 1908 read with the Harbour Craft Rules framed thereunder. The Port Authorities under Ex. A-4 stated that the application for the issue of a Harbour Craft License was under consideration and that the use of the Tug for towing at the Port is illegal. In view of the petitioner's letter dated 11-5-1962 marked Ex. '1'clarifying that it was not using the Tug for the purpose of carrying passengers of cargo but it intended to use the Tug only for the purpose of towing at the Port, it appears that the Port Authorities have taken a view that there does not appear to be any provision under which the Registering Officer could grant license to craft not intended for carrying cargo, passengers or animals and for fishing. This is under Ex.A-5dated 5-7-1962. The Board also passed a resolution on 12-6-1962 as is clear from Ex.A-6 dated 6-7-1962 that permission to ply the Tug MUBARAK in the Port area is not granted. On further representations and correspondence the petitioner got permission on certain terms and conditions, to use the Tug MUBARAK for the shipping season of 1962-63 viz., from September 1962 to May 1963.
On 7th of September 1963, again the petitioner sought permission to use the Tug MUBARAK for towage at the Mangalore Port for the season September 1963 to May 1964. The Mangalore Port Authorities appear to have submitted their recommendations to the Government in this regard for approval. But, before anything further was done the petitioner took the stand as is clear from the letter dated 17th of September 1963 that it would be towing its own lighters with the Tug MUBARAK without any restrictions whatsoever or any levy by the Port Authorities. The petitioner appears to have accordingly used the Tug MUBARAK for the purpose of transporting the goods by towing the cargo boats within the Port limits of Mangalore, without obtaining any permission from the Board of Trustees. Consequent on this, the impugned letter Ex. A-16 dated 10-10-1963 was issued by the Port Authorities notifying the petitioner that it should not use the Tug for towing the cargo boats or bring its Tug MUBARAK alongside of any wharf, quay or jetty belonging to the Port of Mangalore. It was also warned that if it failed to obey the notice it will be held liable for charges at the rate of Rs. 500 for each day or portion thereof during which the Tug remains at such wharf, quay or jetty.
In this Writ Petition the petitioner challenges the aforesaid Order of the first respondent dated 10-10-1963 and contends that Ex. A-10 is an unreasonable restriction on the petitioner carrying on its business of loading and unloading ships and is violative of Art. 19(1)(g) of the Constitution. The Petitioner further contends that in the absence of any by-laws under S.101(8) of the Mangalore Port Trust Act, 1953 regulating the lighters of cargo between ships or between ships, the Order dated 10-10-1963 is null and void. The petitioner next alleges that Messrs. Scindia Steam Navigation Company are allowed by the first respondent to use their Tug for towing their boats and to wharf the Tug, without any levy imposed on them or subjecting them to any conditions. On this ground the petitioner's grievance is that there is a hostile discrimination against them and this is violative of Art. 14 of the Constitution of India. On these grounds, it seeks the quashing of the order dated 10-10-1963 and consequently the petitioner seeks a Writ of Mandamus or any other appropriate Writ or Direction to the respondents not to prevent or obstruct the petitioner from bringing its Tug MUBARAK alongside of the wharf, quay or jetty belonging to the Port of Mangalore.
(1b) The petitioner has also filed an additional affidavit stating that if under R. 4 of the Madras Minor Ports Harbour Craft Rules, 1953 it has obtained a license for using its Tug, the second respondent may be directed by the issue of a Writ or Mandamus to issue a license to the petitioner for the use of its Tug MUBARAK in the Mangaloe Harbour.
(1c) The Manager of the Mangalore Port Trust Board has filed a counter affidavit resisting the claim of the petitioners. He states that the Mangalore Port area is exclusively vested in the Board of Trustees and therefore the petitioner does not have any right to ply in the port unless it is permitted to do so by the proper authorities. He also stated that the Board can restrict the user and prevent the vessel owner from using their own Tugs.
(1d) The respondent deny that the petitioner has fundamental right as claimed by it nor any right under law to use the Tugs for towing its boats. According to the respondents it is the Board of Trustees that have the power to permit the user of the Tugs under the provisions of S.40 f the Mangalore Port Trust Act, 1953. The respondent stated that in view of the fact that the Board is providing facility as they are bound to do under the law, the petitioner cannot use its own Tug without the permission of the Board and that if such the question of granting permission to the vessel owners to have their own Tugs, would arise. Such grant of permission is exclusively within the power of the Port Authorities. The direction issued by the Board under Ex. A-16 is in the exercise of the regulatory power of the Port Trust Board. The respondents deny that the petitioner has any legal rights to use the Tug as it likes nor has it any such fundamental right in respect of such user. They further state that the Port area covered by the Schedule attached to the Mangalore Port Trust Act 1953 entirely vests in the Board and the Board has every right to control the acts and movements of private persons within the Port area and there is no private right of any citizen within that area and therefore there is no question if violation of any constitutional right as alleged by the petitioner.
(1e) With reference to discrimination alleged in the petitioner's affidavit the respondents stated that Messrs Scindia Steam Navigation Company have been carrying on their business from 1897 and that they are carrying goods and passengers from Bombay and even making their own arrangements for towing. This practice has continued until now. The Board is now examining the liability of Messrs Scindia Steam Navigation Company with reference to the provisions of the Mangalore Port Trust Act. The respondents therefore state that Messrs Scindia Steam Navigation Company stands on a different fooling and therefore there is no hostile discrimination involved and Art. 14 of the Constitution of India is not attracted. In this circumstances the respondents contend that the petitioner is not entitled to any relief in this petition.
(2) Sri Nambiar, the learned counsel for the petitioner, made it clear that the 22 lighters belonging to the petitioner held licenses granted under R. 4 of the Madras Minor Ports Harbour Craft Rules 1953, and no license is granted in respect of Tug MUBARAK by the Mangalore Port Authorities There is no dispute that the petitioner is entitled to use the boats called lighters for the transhipment of goods within the Port area of Mangalore. The boats are normally propelled with the help of oars or with sails, when the wind and conditions at the bar (merging place of the rivers 'Netravathi' and Gurpur, into the sea) are favourable. To carry on the trade, without depending on the conditions at the bar a Tug is utilised to tow the boats. Now, the petitioner proposes to tow its cargo boats (called lighters) by its own Tug MUBARAK which is propelled by mechanical towing will enable the petitioner to transshipment the goods quicker and in any weather. It is for this reason that the petitioner insists on its right to use the Tug MUBARAK to tow boats.
Sri Nambiar contends that the petitioner has a fundamental rights to ply its boats for the purpose of the trade, in the port area of Mangalore provided it conforms to the provisions relating to license and registration as provided in the Madras Minor Ports Harbour Craft Rules, 1953, and this fundamental right to ply the boats in Mangalore Harbour includes the right to use the Tug MUBARAK for towing the boats. No restriction of this right can be imposed by the respondents. As long as there is no restriction imposed by law on the exercise of such rights, the petitioner has a right to use the Tug MUBARAK for towing its Cargo boats. Secondly the petitioner's counsel contends that even under the provisions of the Mangalore Port Trust Act, 1953 and the Madras Minor Ports Harbour Craft Rules 1953, the petitioner has the legal right to ply its boats and in this right the use of the Tug MUBARAK to tow the boats is implied. The Port Authorities have no right to impose any restriction on such rights which the petitioner has under the law.
(2a) The next contention of Sri Nambiar is that similar rights are being exercised by Messrs Scindia Steam Navigation Company who are not prohibited from using their Tugs Hence the prohibition imposed against the petitioner under the impugned against the petitioner under the impugned order is discriminatory and therefore void.
(3) Before adverting to the aforesaid contention we may mention that Sri Nambiar referred to the right of the petitioner as a Public right of navigation in sea ports of harbours. He invited our attention to paragraph 887 in Vol. 39 of Halsbury's Laws of England, 3rd edition, where it is observed:
'Sea Ports and harbours are open, in times of peace, to all ships in the exercise of the Public right of navigation.......These public rights may, however, be affected by statute.'
In the absence of any statute, the contention is that the sea port is open to all ships in the exercise of the public right of navigation. With reference to this, the respondents' counsel Sri. T. Krishna Rao points out that the petitioner's claim as disclosed in its affidavit is not based upon this Public right of navigation referred to above. Further, he invites our attention to paragraph 718 of Vol. 39 of Halsbury's Laws of England, 3rd Edition where it is observed that whether a public right of navigation exists in any particular case is a question of fact. The petitioner has not made any averments relating to any public right of Navigation in its affidavit. In the absence of any allegation in the petitioner's affidavit being its claim on the 'Public right of navigation,' this question does not arise for consideration being a question of fact.
(4) In support of his first contention Sri Nambiar relies upon the decision reported in : AIR1953Mad279 , C.S.S. Motor Service Tenkasi v Madras State. Drawing an analogy between the right to use highway and the right to ply a boat in the port waters, the learned counsel relies upon the observations of Justice Venkataram Aiyer that the right on a citizen to carry on business in motor transport on Public Streets is a fundamental right protected under Article 19(1)(g) of the Constitution. He also referred to the decision reported in : 1SCR707 (Saghir Ahmad v. State of U.P.), in which the Supreme Court has referred with approval to the observation of the Madras High Court in the following passage.
'The true position then is that all public streets and roads vest in the State but that the State hold them as trustee on behalf of the Public. The members of the public are entitled as beneficiaries to use them as a matter of right and this right is limited only by the similar rights possessed by every other citizen to use the pathways. The State as trustee on behalf of the public is entitled to impose all such limitations on the character and extent of the user as may be requisite for protecting the rights of the Public generally. But, subject to such limitation the right of a Citizen to carry on business in transport vehicles on public pathways cannot be denied to him on the ground that the State owns the highways.'
On the basis of these two decisions, the petitioner's counsel contends that if in a case where the property vests in the State a Citizen has a right to use the highways more so, the petitioner has a right to use the Mangalore port. Therefore unless reasonable restrictions are imposed by law on such rights, the right of the petitioner to use the port area to ply their boats in the Mangalore Harbour is unrestricted.
(4a) The contention on behalf of the respondents is on the following lines:
Under S. 29 of the Mangalore Port Trust Act 1953(hereinafter referred to as the Act) the several immovable properties specified in the Schedule to the Act, and all movable properties held or vested in the Mangalore Port Conservancy Board shall vest in the Board but subject to all charges and liabilities affecting the same. Under S. 4 of the Act, it is provided that the duty of carrying out the provisions of the Act, shall, subject to such conditions and limitations as are specified (in testator Act) be vested in a Board to be called 'The Trustees of the Port of Mangalore', and such Board shall be a body corporate and have perpetual succession and a common seal and shall sue and be sued by the aforesaid name. Under Chapter V of the Act, the Board has the power to execute works in the Port Area and provide such appliances as it may determine to be necessary or expedient for the purpose of the Port.
It is the obligation of the Board to provide all reasonable facilities for the several purposes referred to in S. 40 of the Act, and power to undertake the service referred to therein. The bodies has power under S. 35 of the Act to direct that no goods shall be landed or shipped from or in any seagoing vessel within the port save at such wharves, quays, stages, jetties and piers, provided by the Board. It is urged that the Board having vested with the powers of management it follows that they can exercise all the powers vested in them by the statute and discharge the obligations imposed on them. It is only to this extent that the Board would be different from a private owner. But, as long as the harbour area is owned by the Board, managed and controlled by it, under the Act, no person can say that he has a harbour area of the Board. From this point of view, it is contended by the learned advocate for the respondents that the petitioner can have no fundamental right to ply its boats in the Mangalore Harbour.
(4b) The respondents' counsel has invited our attention to the decision reported in : AIR1961Mad234 , R. Sarangapany v. Madras Port Trust, wherein it is observed that:
'It is true that Art. 19(1)(g) confers on all citizen the right to practise any profession or to carry on any occupation, trade or business. But obviously this right cannot entitle a citizen to carry on his occupation, trade or business on the premises of another person or body except of course with his leave and consent.' And further that 'there is no fundamental right in the citizen to carry on business wherever be chooses, and his right must be subject to any reasonable restriction imposed by the executive in the interests of public convenience' as laid down in 1953 SCR 290. The provisions of Ss. 39 and 96 of the Madras Port Trust Act (2 of 1905) referred to in : AIR1961Mad234 correspond to the provisions of Section 40 and S. 101 of the Mangalore Port Trust Act.
In the other case relied upon by respondents, namely, : AIR1962Cal530 , Commrs. Calcutta Port v. Asit Ranjan, the learned Judges came to the conclusion that the port concerned became vested in the statutory body, viz., the Commissioner for the Port of Calcutta and they refer to : 1SCR707 and have distinguished the same. With reference to : 1SCR707 , the Calcutta High Court states: 'We do not read this decision to be an authority for the proposition that a citizen has a fundamental right to carry on business at a particular place. There the highway was regarded as public property and as dedicated to the State for Public use. Dedication is always implied in the concept of a Highway. Highway itself imports the notion that it is open to traffic and transport to all, and that is why it is called a highway. These features are absent in the present appeal before us. Here there is no question of dedication of a highway or a road to carry on business of transport in a dedicated highway. Here the question is whether the Commissioners for the Port of Calcutta can or cannot permit by a license or otherwise to regulate the type of persons whom they should allow to work in their own property owned, controlled and managed by them. No question of Public road or way or highway or public highways arises in this case.'
(4c) The above said two decisions pertaining to the Madras Port and the Calcutta Port do support the proprietor advanced by the respondent that no person can have a fundamental right to carry on a trade or business in an area belonging to or vested in another person or stipulated body. The learned advocate for the petitioners sought to question the correctness of the view which has been taken in the said two decisions. Having regard to the view which we propose to take in the limited question whether the petitioner as the owner of the licensed cargo boats cannot make use of his tug for towing them and whether the petitioner as the owner of the licensed cargo boats cannot make use of his tug for towing them and whether the Board is competent to prohibit the use of 'MUBARAK' for that purpose, it does not appear to be necessary to give any finding in regard to the larger contention about the petitioner having a fundamental right to carry on his but within the limits of the port.
(5) For a proper appreciation of the contentions arising in this petition, it seems to be desirable to refer to certain conditions of hardship which prevail at Mangalore Port, which make it necessary for the owners of country crafts to frequently seek the assistance of mechanical tugs for purposes of lowing the country crafts. In para 3 of the petitioner's affidavit, it is stated as follows:
'At Mangalore, because of the nature of the port, the ships that come carrying cargo are compelled to anchor about 3 to 5 miles away from the shore. The said place of anchorage is also known in the trade circle as 'OPEN ROAD STEAD' The sea and the shore are engulfed by the meeting place where the two rivers, Netravathi and Gurpur merge into the sea. Popularly, the merging place is known as the bar. Thus, to reach the ship one has to cross the bar. The channel that connects the shore with the ship is very narrow and shallow at the bar and the roughest conditions of the sea always prevail at the bar.'
What has been stated in para 3 of the petitioner's affidavit has been admitted in the respondent's counter affidavit.
Again, in para 6 of the petitioner's affidavit, the following statement is made:
'Since the sailing of the boat depends upon the bounty of the wind, great hardship is caused to the shippers and lighters contracts. To avoid this difficulty and uncertainty a tug is utilised to 'Tow' the boats. Tug is a self propelled vessel fitted with motor engine which can pull several boats at a time. Use of the tug for towing the boats, has become a part of the system of transporting cargo to the ship.'
In regard to these allegations in the said para 6 all that has been stated in the counter affidavit of the respondents is that the Mangalore Port Trust Board has provided reasonable facilities having due to regard to the volume of trade to tow these vessels within the limits of the Port area by providing their own tugs. There is no reason to doubt the allegations made by the petitioner to the effect that the natural conditions prevailing their own tugs. There is no reason to doubt the allegations made by the petitioner to the effect that the natural conditions prevailing at the Mangalore Port, make it necessary for the country crafts plying there to frequently seek the assistance of mechanical tug boats. Even elsewhere there seems to be nothing unusal to resort to the assistance of mechanical tug boats in the course of shipping and unshipping activities.
In this connection our attention has been invalid to certain observations made by Sellers J. in Pigot & Son v. Waterways Executive (1953) 1ALL ER 22 at p. 25 They are as follows:
'In ordinary circumstances and certainly those which exist at Immingham goods destined for shipment require a vehicle of some kind to get them to the ship's side, and in many cases and frequently at Immingham, a ship requires a tug or tugs to get her to her berth for loading. Likewise goods have to be removed by vehicle from the quay after discharge and ships have to be moved out after loading or discharge. A tidal river flows outside Immingham Dock, and a vessel entering and leaving has to allow for the effect of the current on the ship's course and manoevres. There is a risk of fouling the piers or jetties at the entrance and for this and for safe movement to and from a berth in the dock a tug is frequently used by a vessel entering or leaving and some vessels use more than one tug. I can see no real distinction between the contractor who by his vehicles brings in the goods for shipment or removes them after discharge and the tug owner who by his tugs brings in and takes out vessels engaged in the shipping and unshipping of goods and the ship owner who brings his ship to the port aided or unaided by tugs. They are all performing services without which goods could not be shipped or unshipped by vessels using the port......'
Though, the above observations were made in the context of interpreting S. 33 of the Harbours, Docks and Piers Clauses Act 1847, they are useful for the present purpose, inasmuch as they very clearly bring out the fact that towage is something incidental to lighters or the movement of vessels for the purpose of carrying cargo in the course of the activity of shipping and unshipping.
As regards this aspect of the case we wish to make it clear that we are not concerned in this case with any question of towage in the high seas; nor even with any question of towage arising under any contract with a third party, but only with the limited questions as to whether the facility of being towed by the petitioner's tug, cannot be availed of by the petitioner's licensed country crafts engaged in carrying or transporting cargo in the course of shipping and unshipping activities at the Mangalore Port. To determine this limited question, it is also necessary to make note of some admitted facts. They are the following: The Board has no objection to the petitioner carrying on his business or trade of lighters at the Port of Mangalore. The Petitioner owns 22 country boats all of which have been licensed under R. 4 of the Madras Minor Ports Harbour Crafts Rules) made in the exercise of powers conferred by S. 6(1)(k) of the Indian Port Act, 1908. There is no dispute about the right of the petitioner to carry goods in these licensed cargo boats to and from the ships calling at the Port of Mangalore. The fact that the petitioner is the owner of the mechanical tug boat 'MUBARAK' is not in dispute; nor is the prohibition for the use of ''MUBARAK' for towing the cargo boats of the petitioners, founded on any objection to the effect that 'MUBARAK' is not seaworthy.
(5a) Bearing in mind what has been stated above (and keeping apart the challenge on the ground of discrimination), the questions which arise for determination, may be state as follows:
(1) Whether the petitioner who is the owner of licensed cargo boats, can use the mechanical tug boat owned by the petitioner for towing the said cargo boats in the course of lighters business at the Mangalore Port without the express permission of the Board for such user:
(2) Whether it would be permissible for the petitioner to use ''MUBARAK' for the said purpose even though a license under R.4 of the Harbour Craft Rules has not been obtained for 'MUBARAK'; and
(3) Whether the Board which as statutory authority, has the power under the law prohibit the petitioner from using the motor tug (unless obtains the permission of the Board) for the purpose.
(6) We will now proceed to deal with the above question. It is undisputed that by reason of having been licensed under R. 4 of the Harbour Craft Rules, the 22 lighters cargo boats of the petitioner are entitled to ply in the waters of the Mangalore Port, for the purpose of carrying cargo to and from the ships calling at that port. It cannot be doubted that for the said purpose those cargo boats have freedom of movement in the waters of the port, subject to the condition in the license and any restrictions that may be imposed having regard to the traffic, the safety of vessels, persons and appliances in the port. That liberty of movement in the waters of the port must necessarily include (as already indicated above) towage, as an incidental facility which can be availed of by these cargo boats in the course of their movements for the purpose of lighters. Therefore, unless excluded either under the conditions of the license or under some relevant by law the utilisation by these cargo boats of the facility of towage, would be part of the legitimate liberty of movement necessary for the purpose of lighters.
It has not been pointed out to us that there is any condition in the license which prohibits the lighters from availing themselves of this incidental facility. In particular our attention has been drawn by the learned advocate for the petitioner, to the fact that no bylaw prohibiting the utilisation by cargo boats of the facility of towage has been made, though S. 101(8)of the Act provides for by-laws being made for regulating the lighters of cargo between ships, and shore or between shore and ships. In these circumstances, there seems to be no justification for assuming that for the movements of the licensed lighters in the course of their legitimate business of lighters, the assistance of a tug boat cannot be availed of unless expressly permitted by the Board. It is admitted that the Port Authorities also maintain a tug boat and launch (for purposes of convenience referred to as a tug) which, on their permission could be used for purposes of towage, subject to the payment of specified charges.
The stand taken on behalf of the Board is that only these tug boats maintained by the Port Authorities, should be availed of for purposes of towage. The question whether the Board can lawfully insist that only their tug boats should be availed of for immediate purpose and it will be dealt with at a later stage. What is relevant for the present purpose is that the maintenance of these tug boats by the Port Authorities, serves to emphasize the need for such facility. Leaving apart for the present, the question as to whether the Board can compel the petitioner to use only the Board's tug boats, we are not satisfied that there is any legal impediment to the petitioner availing itself of the use of its own mechanical tug boat, for assisting the movements of the petitioner's licensed cargo boats in the port waters in the course of the lighters business. Of course, this is subject to the tug boat being unworthy and fulfilling the requirements whether of the Harbour Craft Rules or of any other relevant law and complying with such lawful directions as may be issued by the Port Authorities having regard to convenience and safety in navigation and other relevant factors including the payment of prescribed charges, if any.
(6a) The next question for consideration is whether it is necessary for the petitioner to obtain a license under R. 4 of the Harbour Craft Rules before 'MUBARAK' could be made use of for towing the licensed cargo crafts of the petitioner. The relevant portions of the said rule are as stated below:--
'4. (1) Harbour craft plying within a port to be licensed. No person shall, whether as owner or as servant, use any harbour craft to carry goods or passengers to or from any ship or vessel at any port or from place to place within he limits of any port unless such person holds a license in the form in Appendix A granted by the registering officer specified in Appendix B and unless the harbour crafts so used has been registered. For purposes of registration the owner of a harbour craft shall cause it to be brought to such place as the registering officer may appoint.
Nothing in this rule shall apply to boats forming part of the equipment of a ship or steamer or harbour craft maintained solely for purposes of pleasure, but the registering officer may, if he thinks fit, withdraw this exemption from any such harbour craft.
(2) The restoring officer shall, upon the application of the owner or owners of a harbour craft for a license, survey and measure such harbour craft or cause it to be surveyed and measured, in the presence of the owner or owners thereof, or of any other person duly appointed for the purpose by such owner of owners, and on being satisfied that it is seaworthy and fit for service at the port, grant the license referred to in sub-rule (1).
(3) xx xx xx xx It will be noticed that under sub-rule (2) the registering officer after survey and measurement of the harbour craft and on being satisfied that it is seaworthy and fit for service at the port shall grant the license referred to in sub-rule (1). That license referred to in sub-rule (1) is in regard to harbour crafts used for carrying goods or passengers. The prohibition in sub-rule (1) is that any harbour craft shall not be used by any person. (Whether as owner orals servant) for carrying goods or passengers to or from any ship or vessel at any port or from place to place within the limits for any port, unless he holds a license in the form in Appendix A granted by the registering officer. It follows from the language of the said sub-rule (1) that the prohibition therein does not apply where the user of the harbour craft is for a purpose other than the carriage of goods or passengers.
As a matter of fact, the view taken by the Port Authorities as per their letter Ex. A-5dated 5-7-1962 was that there appeared to be no provision in the Harbour Craft Rules 'under which the registering officer could grant license to crafts not intended for (1) carrying cargo passengers, animals: (2) finishing:' the same stand is indicated in para 9 of the counter affidavit filed by the respondents. This need not necessarily be considered to be lacuna in the Harbour Craft Rules. It is possible that in view of the fact that other regulatory provisions would be applicable, the obtaining of a license in the form in Appendix A was not made compulsory for the use of a harbour craft by its owner for the mere purpose of towing his own licensed cargo boats (as in the present case) and not for the purpose of using it either for hire, or to carry cargo or passengers.
It is not as if the port authorities would be devoid of all control over the tug boat in such a case, merely because the obtaining of a license in the form in Appendix A was not compulsory. For instance, the provisions in Part II Special Rules Section B (of the Harbour Craft Rules) pertaining to vessels propelled by mechanical power may be applicable to this tug. In the event of the Board framing by-laws under S. 101(8) of the Act for regulating the lighters of cargo (and the incidental towage of cargo boats by vessels propelled to mechanical power), the same may become applicable to this tug. If any appliances in the port have to be made use of, it could be done only by coming with such conditions and the payment of such fees as may have been prescribed or lawfully required for such user. Further this tug cannot be used either for hire or passenger traffic unless it be in accordance with Condition No. 24 found in the Notification under S. 47(1) of the Act, published in G.O. No. 1875 dated 12th may 1955. That condition is as follows: '24. Special fees for using the Board wharves, etc., by private launches or tug engaged on hire or on passenger services Private launch or tug permitted by the Board to ply within the port limits for hire or engaged in passenger traffic shall pay a fee of Rs. 10 per mensem to the Board.'
In these circumstances, it cannot be said that if the petitioner could use its tug 'MUBARAK' for the sole purpose of towing its own licensed cargo boats without being under the necessity of obtaining a license in the form in Appendix A it would amount to the tug boat plying in the port waters in an unregulated and uncontrolled manner. If the petitioner desires at any time to use 'MUBARAK' for carrying either cargo or passengers then it could be only under a license in the form in Appendix A any application by the petitioner for such a license will doubtless be considered in accordance with the provisions of R. 4 of the Harbour Craft Rules (1) may incidentally be mentioned that such a license has been recently granted in respect of 'MUBARAK' by the Mangalore Harbour Authorities).
(6b) The next question is whether it would be within competence of the Board to totally prohibit the petitioner, from using his tug for the purpose of moving or towing his licensed cargo boats except under the express permission of the Board. The contention urged on behalf of the petitioner is that the Board being a creature of statute, having only the powers conferred on it (whether expressly or impliedly) and being under a duty to act only in the manner provided in the statute, cannot compel the petitioner to seek its permission when the provisions of the Act do not empower the Board to make such permission a condition precedent to the user of the tug by the petitioner for the aforesaid purpose.
The legal position in regard to a statutory body as stated by Lindley, L. J., has been referred to by Sellers, J., (1953) 1All ER 22 at p. 27; that is as follows:
'The Legislature has expressly conferred upon the company many powers which the company, as the owner of property, could have exercised without any express statutory authority. Whenever this is the case, the power expressly given must be treated either as superfluous or as purposely inserted in order to define, that is, limit the right conferred and as implying a prohibition against the exercise of the more extensive rights which the company might have by virtue of its ownership of property. That the latter is the true mode of regarding statutory powers conferred on bodies created for public purposes and authorities to acquire land for such purposes cannot, I think admit of any doubt.'
Further on Sellers, J., has referred to the distinctions pointed out by Greer, L. J., between the companies created by charter which are deemed to have all the powers of a natural person and companies created by statute which is as follows:
'Statute does not create a corporation at common law. It creates a statutory creature which cannot go beyond its statute for the reason that to the statute it owes its existence.'
At page 347 of the Eleventh Edition of Maxwell on Interpretation of Statutes, it is stated as follows:
'The difference between a statutory consideration and a corporation incorporated by rival charter is well settled. The former can do such acts only as are authorised directly or indirectly by the statute creating it; the latter speaking generally can do everything that an ordinary individual can do.'
The distinction between a private owner and a statutory body was adverted to by the Calcutta High Court in : AIR1962Cal530 Mukharji J. while referring to the legal position of the Commissioners of the Port of Calcutta observed as follows:
'Being a statutory body the Port Commissioners have to act with in the four corners of the Statute and within the limitation and duties imposed by the Statute. In that respect they are certainly to be distinguished from a private owner does not suffer under such statutory limitations.'
The Board is a creature of statute. The object of the Act (as can be seen from the preamble) is to make provision for the regulation, conservancy and improvement of the Port of Mangalore. Under S. 4 of the Act, the duty of carrying out the provisions of the Act, has subject to conditions and limitations as are contained in the Act vested in the Board. All property vested in the Board or acquired by it is only for the purposes of the Act. Under S. 10 the Board is under a duty to provide, amongst other things, all reasonable facilities for the landing and shipping of goods. Section 121 provides for the revocation under certain circumstances, of the powers of the Board and the vesting of the properties of the Board in the State Governments. He position is very much different from that of a private owner.
In order to so prohibit, it is necessary that the Board must have been empowered by the provisions of the Act, to do so. It is not disputed that there is no provision in the Act, which directly empowers the Board to so prohibit. No justification has been attempted on the ground that the nature of the cargo usually carried in the licensed cargo boats of the petitioner is such that the prohibition is imposed on consideration of safety. No by-law under S. 101(8) has been made prohibiting the use of tugs other than those of the Board, for the purpose of towing the licensed cargo craft plying within the port limits. Therefore, bearing in mind the fact that towage is a facility incidental to lighters the Board cannot say, irrespective of the provisions of the Act, that they will prohibit the use of the tugs by the petitioner unless their permission is obtained.
(6c) The learned advocate for the respondents, sought to rely on the summary of the decision by Wallon J., in the Great Central Co. v. The North-Eastern Steam Fishing Co. found at pp. 520 to 521 of (1906) 22 TLR 520. A report of the full judgment is not available. It appears that in that case the defendants were the owners of steam trawlers had to take on board certain quantities of ice and coal. For this purpose the trawlers had to be moved to different places in the dock. the defendants claimed the right to keep a tug in the dock to move the trawlers as required alleging that that was both reasonable and convenient. on a consideration of the provisions of S.33 of the Harbours Docks and Piers Clauses Act 1847. Walton J was of the opinion that the defendants did not have the right to keep the tug inside the dock for those purpose without the plaintiffs' consent.
From what has been stated by Sellers, J., in the subsequent case of Pigott & Son (1953) 1 All ER 22 in regard to the view taken by Walton, J., it appears that the correctness of that view was obtained by Sellers, J. in any event as pointed out by Sellers, J. at p. 26, the earlier decision of Walton J., was only an authority for the proposition that S. 33 of the Harbours Docks and Piers clauses Act 1847 did not give the trawler owners a right to keep a tug inside the dock for the purpose of rendering towage services as and when required to their trawlers. We do not think that the said decision of Walton J can be of any assistance to the respondents, having regard to the facts of the present case in which the question is not whether the tug can be kept within the port, but only whether the petitioner cannot make use of his tug for towing his licensed cargo boats. In support of the contention that the Board could legally prohibit the petitioner from using 'MUBARAK' for towing petitioner's licensed cargo boats, reliance was placed on Sections 32, 33(8) 40(1)(a)(b) and 40(2) of the Act. These provisions are as follows:
'32. Power to execute works and provide appliances. The Board may execute such works and provide such appliances as it may determine to be necessarily or expedient for the purpose and appliances may include.
33. General nature of works to be executed or appliances to be provided. Such works and appliances may include.
xx xx xx xx
(8) vessels, steam, tugs or other boats for use as well within the limits of the port as beyond those limits, whether in territorial waters or otherwise, for the purpose of towing or rendering assistance to any vessel, whether entering or leaving the port or bound elsewhere and for the purpose of saving or protection life or property and for the purpose of landing shipping or transshipping passengers or goods under S. 40.
40. Performance of services by the Board:
(1) The Board shall, according to its powers, provide all reasonable facilities for and shall have power to undertake the following services:
(a) landing, shipping, or transshipping passengers and goods between vessels in the port and wharves, piers, quays or docks in possession of the Board:
(b) receiving, removing shifting, transporting, storing or delivering goods brought within the Board's premises:
xx xx xx xx (2) The Board shall, if so required by any owner perform in respect of goods all or any of the services mentioned in Cls. (a), (b) and (d) of sub-section (1) which it shall have undertaken: Provided that the Board shall not be bound to perform any service which it has relinquished under the provisions of Clause (a) of sub-section (1) of S. 42'
The argument on behalf of the Board is as follows. Section 32 gives power to the Board to provide amongst other things such appliances as it may determine to be necessary to expedient for the purposes of the port Under S. 33(8) such applicants include steam tugs for the purpose of towing. By virtue of the latter part of S. 33(8) these steam tugs could also be used for the purpose of landing, shipping or transshipping goods under S. 40. Under sub-section (1) of S. 40, a duty is cast on the Board to provide, according to its powers all reasonable facilities (amongst other things) for landing, shipping or transshipping goods between vessels in the port and the wharves, piers, quays or docks and also removing shifting. Transporting goods brought within the Board's premises. The tow tugs 'Henderson' and 'Mangalore' owned by the Board provide reasonable facilities for the above said purposes of sub-section (1) of S. 40.
Under sub-section (2) of S. 40, it is competent for the Board to perform in respect of good any of the services mentioned in Cls. (a), (b) and (d) of sub-section (1) of S. 40, further under sub-section (2) in respect of any of these services so undertaken by the Board it is its duty, when required by any owner, to perform those services. The further argument is that when the Board is under a duty to perform the services of towing amongst other things it will also he competent for the Board for the proper performance of its duties, to say hat without its permission nobody else should perform the service of towing. The correctness of these contentions advanced on behalf of the respondents have been questioned by the learned Advocate for the petitioner. The argument advanced by him is tow fold; firstly that in the present case, the Board has not as a matter of fact, completely taken over to the exclusion of all others, such services as are ordinarily performed by mechanical tug boats. Neatly it is argued that there is nothing in any of the provisions of the Act relied upon by the respondents, to show that when the Board takes over any of the services it can totally exclude others from performing any such services. It seems to us, that this second argument does not arise for determination, in the facts and circumstances of the present case: because, no by law has been made, nor has any resolution been passed to the effect that the Board shall take over the service of towing within the limits of the port, to the exclusion of all others.
The learned advocate for the respondents sought to rely on the decision reported in : AIR1961Mad234 and : AIR1962Cal530 , in support of the proposition that it would be within the competence of the Board to take over the said services to the exclusion of all others in the field. in the said Madras case a resolution had been passed by the Port Trust Board deciding to take over certain services which were entrusted to the forwarding and clearing agents. The competence of the Port Trust Board to pass such a resolution and to take over those services had been challenged. In the Calcutta case, the validity of a by-law under which the petitioner of that case was unable to obtain a stevedore license, had been challenged. The petitioners in both these cases were unsuccessful in assailing the validity of the action taken by the Port Trustees.
Those two cases cannot be of any assistance to the respondents on this particular point for two reasons. Firstly, in those two cases the question did not arise in the form in which it has arisen in the present case namely, whether an owner of licensed cargo boats, cannot have those boats towed by his own tug without any express permission from the Port Authorities; this question was not decided in those two cases. Secondly, because there is a material difference between the present case and those two cases. That difference is, that while in the Calcutta case there was a by-law and in the Madras case a resolution, under which action was taken by the Port Authorities, there is in the present case, no by-law or resolution to support the stand taken on behalf of the respondents that they are competent to perform the services of towing to the exclusion of all others. In other words, there is no by-law or resolution authorising them to perform the said services to the total exclusion of all others in the field.
This stand now sought to be taken by the respondents is contrary both to the existing factual as well as legal position, as will be presently shown Factually it is undisputed that Messrs. Scindian Steam Navigation Company have been using their steam launch for the purposes of towing their cargo boats in and out of the port limits. It does not appear that the said Company has been using their steam launch for the said purpose, under express permission given by the Board. It is stated in the counter affidavit filed by the respondents that the legal position in regard to Messrs. Scindia Steam Navigation Company for so using their steam launch will be examined by the Board. Whatever that may be, the fact remains that there is at least one other in the field, who is using his own launch for towing his cargo boats: when that is so, the Board cannot say that it is performing the service of towage to the exclusion of all others.
So far as the legal position is concerned a perusal of condition Nos. 23(1) together with 23(5) will show that the stand now taken by the Board is not consistent with the said conditions. Conditions 23(1) and 23(5) are as follows:
'23. Tug and launch hire--(1) For towing and other services by the Tug 'Charles Henderson' and motor launch 'Mangalore' at the Port of Mangalore fees will be charged as per Schedule 'D' under Part II
xx xx xx xx (5) The services of the tug or launch can only be availed of when she is not required for the purposes of the Board, and when no private tug or launch is available'
It is clear from the above condition No. 23(5) that the services of the port launch or tug can be availed of only (a) when the tug or launch is not required for the purpose of the Board, and (b) when no private tug or launch is available. Two legitimate inferences follow from this condition. The first is that the Board's tug or launch is intended primarily for the purposes of the Board, secondly the availability of private tugs, in which event the services of Board's tug or launch cannot be claimed. When such is the position it will be inconsistent for the Board to contend that for the towage of the petitioner's licensed cargo boats the services of only the Board's tugs should be availed of and that the petitioner ought not to make use of petitioner's own private tug.
The said condition is a part of the statement of the conditions published in exercise of the powers conferred by sub-section (1) of S. 47 of the Act. Under S. 47 when the statement of conditions is sanctioned by the Government and published in the official gazette, it shall have the force of law. Therefore, condition No. 23(5) has the force of law. As long as this condition is in existence it would not be lawful for the Board to prohibit the utilisation of the services of a private tug and to insist that only the Board's tugs must be used. (Incidentally, it may be stated that it is admitted in the counter affidavit of the respondents that one of these two tugs belonging to the Board is now undergoing repairs in the Cochin Harbour).
(7) Now, there remains only the contention of the petitioner that the prohibition against the user of its own tug to towing its licensed cargo boats, amounts to an act of hostile discrimination. Having regard to the circumstances in the case, this contention seems to have much force. It is undisputed that Messrs. Scindia Steam Navigation Company has been making use of their steam launch for towing their own cargo boats, in and out of the port waters. The Board does not appear to have made any attempt to prohibit that company from so doing. That company is not a party to this writ petition and would not like to say anything which may affect the right if any of that Company to use their launch for the said purpose. The respondents have stated in their counter-affidavit that since a very long time that company has been using its launch for towing its own cargo boats and that the said company stands on a different footing from the petitioner. At the same time, the respondents also say that they have been examining the legal petition of that company under the Act.
There is considerable force in the argument of the learned advocate for the petitioner that the business carried on by the petitioner as well by the Scindia Steam Navigation Company is identical, namely, lighters business and that there is absolutely no reason as to why the petitioner should be denied this incidental facility which the Scindia Steam Navigation Company has been enjoying. It may be, that the Board has not given express permission to Scindia Steam Navigation company. But undoubtedly the Board's prohibition against the petitioner operates as a great disadvantage to the petitioner while the passive attitude towards Scindia Steam Navigation Company results in benefit to that Company. By this, we should not be understood as saving that the Scindia Steam Navigation Company which is not before us, should be deprived of that advantage, what we would point out is, that there is no reason for discriminating against the petitioner and to prohibit it from using its tug boat for similarly towing its own licensed cargo boats.
(8)The relevant petition may be summed up as follows: There is no legal impediment to the petitioner making use of its tug 'MUBARAK' for towing the petitioner's licensed cargo boats engaged in the business of lighters. As Rule 4 of the Harbour Craft Rules stands, there is no necessity for obtaining a license in the form in Appendix A for making use of the said tug for the said purpose. As the matters stand at present, the Board has no legal authority to totally prohibit the petitioner from availing itself of the services of its tug 'MUBARAK' for the purpose of the towage of the petitioner's cargo boats in the port waters, in the course of the business of lighters. The order of the Board totally prohibiting the petitioner from making use of its tug for the said purpose is without any legal authority and is arbitrary. Further, it is also discriminatory. Therefore it is void.
(8a) It may be mentioned that two circumstances have been pointed out against the petitions. The first is that in the year 1963 it had agreed to use 'MUBARAK' under permission of the Board, secondly a few years before it had objected to Messrs. Shaparias Dock and Steel Company being permitted by the Board to use their tugs for towing their own cargo. What has been stated on behalf of the petitioner is, that under the stress of urgency to perform its commercial contracts, it had to agree in 1963 to certain onerous conditions imposed by the Board for the user of its tug to tow its own cargo boats. It seems to us that neither of these circumstances stated against the petitioner can alter the fact that the prohibition by the Board is arbitrary and discriminatory.
(9) Though the petitioner has prayed for a writ of mandamus, we think that, in the circumstances of the case, it would be sufficient to issue suitable directions to the Board.
(9a) In the result, a direction will issue to the respondents not to give effect to their decisions or order prohibiting the petitioner from using its tug boat 'MUBARAK' for the purpose of towing its own licensed cargo boats in and out of the port limits, they are further directed to refrain from prohibiting the petitioner from using the said tug boat for the said purpose as long as the petitioner complies with all the requirements of law and such lawful directions as the port authorities may issue from time to time. Having regard to the some what unusual circumstances in the case, we order that each party shall bear its own costs.
(10) Petition allowed