P.B. Mukharji, J.
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 underSection 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 heard this application under Article 226 of the Constitution made the order which I have already mentioned, in favour of the petitioner. The Dock labour Board and the Commissioners for the Port of Calcutta now appeal from that judgment. The judgment under appeal came to certain findings which may be stated briefly. The new Bye-law 4A was held to be bad on the ground that the Central Government having only the power to confirm a Bye-law made by the Commissioners for the Port of Calcutta here in fact did not merely confirm but altered it by deleting the word 'permanent' from such Bye-law. It was, therefore, held that this was not valid confirmation within the meaning of Section 126(4) of the Calcutta Port Act. Two other alterations the learned Judge held to be of no consequence and, therefore, held those alterations not to be material. Having come to that conclusion that Bye-law 4A was bad on the ground of dropping the word 'permanent' from it at the time of the confirmation by the Central Government, the learned Judge consequently reached the further conclusion that the old Bye-law 4A still subsisted because the new Bye-law being invalid failed to repeal the old Bye-law. He thereupon proceeded to consider the old Bye-Law 4A and Clause 15(1)(c) of the 1955 Scheme. His conclusion on the old Bye-law is that it contains provisions which were unworkable, vague and uncertain. He also came to the conclusion that under this Bye-law the Commissioners' power to revoke, cancel or suspend a licence without assigning any reason was unreasonable and was an arbitrary power without any control and therefore bad, by applying the principles laid down in Chintaman Rao v. State of Madhya Pradesh : 1SCR759 , State of Madras v. V. G. Row : 1952CriLJ966 , Raghubir Sing v. Court of Wards Ajmer : 4SCR1049 and Dwarka Prosad v. State of Uttar Pradesh : 1SCR803 . The learned Judge, therefore, held that the old Bye-law 4A was invalid under Article 19(1)(g) of the Constitution. The learned Judge did not accept the argument of the Dock Labour Board and Port Commissioners that it was not a. fundamental right at all to carry on stevedoring business within the port area Whose land or buildings in the Dock belonged to the Port Commissioners and who therefore claimed the power to exclude anybody they liked. The learned Judge held, 'there is no doubt that the Dock area does belong to the Port Commissioners.' The learned Judge deals with this argument by saying that the Port Commissioners are within the meaning of the 'State' as defined in Article 12 of the Constitution and within the meaning of the term 'local authority' as defined under Section 3(28) of the General Clauses Act. Therefore, he says that the State here considered as Port Commissioners shall not make any law which takes away or abridges the rights conferred by Article 19. He applies Clause 3(a) of Article 13 of the Constitution to include a Bye-law within the meaning of the word 'law'. He, therefore, states in conclusion in the fallowing terms:
'The result is that the Port Commissioners cannot make a Bye-law which abridges the rights conferred under Article 19(1)(g) of the Constitution unless of course it is saved by Section 19(6), as a reasonable restriction.' He thereupon proceeds to say: 'I should not be taken to hold that the State, including the Port Commissioners, cannot hold property or cannot use the same in the same manner as an individual. But there is a restriction in regard to the making of a Bye-law, which restriction would not apply to the case of an individual. An individual cannot make a law or a Bye-law relating to his property. While the Port Commissioners have been authored by law to frame a Bye-law, such a Bye-law comes withinthe net of fundamental rights, and it is open to challenge on the ground that it is violative of it.'
6. The next part of the judgment under appeal relates to the finding on Clause 15(1)(c) of the 1956 Scheme under the Dock Workers (Regulation of Employment) Act, 1948. On the first part of this clause relating to the question whether the Port Commissioners must consider it 'expedient and necessary' to effect such a registration, the learned Judge holds that the words 'expedient and necessary' are not vague in the background of the facts necessitating the promulgation of the Act of 1948, its object and the preamble. But what the learned Judge strikes down as invalid under Clause 15(1)(c) of that Scheme is the provision which lays down 'in no case shall a person or a firm be registered until he or it has been licensed in that behalf by the Port authority.' He came to the conclusion that such licensing provision was bad. Under Bye-law 4A this condition in Clause 15(1)(c) of the Scheme was bad and was severable. As a result thereof the learned Judge held by applying his previous decision in Keshab Lal v. Calcutta Dock Labour Board : AIR1960Cal166 that the petitioner was entitled to be on the register under Clause 15(1)(a). These very briefly are the main foundations of the judgment under appeal.
7. As the analysis of the judgment will show, the first major question in this appeal is whether the petitioner has any fundamental right at all to carry on the business of stevedore at a particular place which, in this case, is the Port of Calcutta. It is contended on behalf of the appellants, the Dock Labour Board and the Port Commissioners, that there is no fundamental right to carry on business in the dock area owned by the Port Commissioners. Reliance is placed for this purpose on the decision of the Supreme Court in Cooverjee B. Bharucha v. Excise Commissioner and Chief Commissioner, Ajmer : 1SCR873 where the right to carry on business of selling by retail, in small quantities, spirituous and intoxicating liquors Was claimed as a fundamental right under Article 19(1)(g) of the Constitution. In meeting this right and claim, Mahajan, C. J. observed at pages 879-881 of that Report (SCR): (at p. 223 of AIR) as follows:
'It was urged that their sale should be without restriction, that every person has a right which Inheres in him, i.e., a natural right to carry on trade in intoxicating liquors and that the State had no right to create a monopoly in them. This contention stands answered by what Field, J. said in Crowley v. Christensan, (1890) 34 Law. Ed. 620 (623)'.
8. The observation of Field, J. in the American case is quoted at length at page 880 of the Supreme Court Report: (at p. 223 of AIR) which contained the following remarks:
'There is no inherent right in a citizen to thus sell intoxicating liquors by retail; it is not a privilege of a citizen of the State or of a citizen of the United States.' At page 881 of the Supreme Court Report: (at p. 223 of AIR), Mahajan, C. J. said: 'These observations have our entire concurrence and they completely negative the contention raised on behalf of the petitioner.'
9. The ratio of this decision shows that what are called inherent rights or fundamental rights under our Constitution did not cover a right to sell intoxicating liquor although there the State only regulated such sate and did not itself carry on the business. In distinguishing the case of Rashid Ahmad v. Municipal Board of Kairana : 1SCR566 , Mahajan, C. J. in (1954) SCR 873 at p. 881: (at p. 223 of AIR) said :
'That decision is no authority for the proposition con-tended for. Elimination and exclusion from business is inherent in the nature of liquor business and it will hardly be proper to apply to such a business principles applicable to trades which all could carry.'
10. It follows from this authority of the Supreme Court in Bharuchas' case : 1SCR873 that the fundamental right to carry on business guaranteed under Article 19 of the Constitution is business of such a kind which all could carry on and which was inherent in all. Applying that test, it does not seem to as that a citizen of India can claim as a fundamental right to carry on a particular business such as that of stevedoring in a particular area like the Docks owned by the Port of Calcutta.
11. The general right to carry on business is certainly there. It is also a fundamental right, but the moment the claim is made to carry on a special or particular type of business available only within a particular area which is under the ownership and control of an individual or a statutory corporation such as the Port or the Fort, then such claim cannot be regarded as a claim to assert the fundamental right to carry on the business within the meaning of the Constitution. The Port area is a special area of a special significance and importance not only as a vital lifeline for the nation, but also for many security and other reasons. The management and control of the Port nave been recognised by many judicial decisions as a sovereign function of the State. The Legislative items in List I such as Items 27, 28, 30 and 41 indicate the all India importance of Ports and the Port area. The House of Lords in Hunter v. Northern Marine Insurance Co. Ltd., (1888) 13 AC 717, discusses what a port is. Lord Halsbury, L. C. in that case at pages 722 and 723 quotes the classical observation of Sir Matthew Hale in the following terms :
'A port is an haven and somewhat more. 1st. It is a place for arriving and unlading of ships or vessels. 2nd. It hath a super-induction of a civil signature upon it, somewhat of franchise and privilege, as shall be shewn. 3rd. It hath a ville, or city, or borough, that is the caput portus, for the receipt Of mariners and merchants, and the securing and vending of their goods, and victualling their ships. So that a port is quid aggregatum, consisting of somewhat that is natural, viz., an access of the sea whereby ships may conveniently come, safe situation against winds where they may safely lye, and a good shore where they may well unlade; something that is artificial, as keys, and wharfs, and cranes, and warehouses, and houses of common receipt; and something that is civil, viz., privileges and franchises, viz., jus applicandi, jus mercati,, and divers other additaments given to it by civil authority.' Again Lord Halsbury, L. C. at page 725 of that report observes:'No port can exist except under the authority of the Sovereign.'
12. It will be unnecessary to go into the question of franchise, eminent domain and police powers, discussed in California v. Central Pacific Railroad Co., (1887-88) 127 US 1, by Bradley, J., New Orleans Gas Light Co. v. Lousiana Light and Heat Producing and . v. The State of Punjab : 2SCR239 , because a bare analysis of the Calcutta Port Act and the Indian Ports Act will plainly show the special nature and character of the Port and its functions, control, possession, ownership and management. No doubt it is true that by Section 4 of the Calcutta Port Act, the Commissioners for the Port of Calcutta are constituted a body corporate with perpetual succession and a common seal and the duties of carrying on the provisions of the Calcutta Port Act are vested in that body. This franchise under Section 4 of the Act, if it can be called a franchise, is under the strict control of the Government. The Chairman and the Deputy Chairman are appointed by the Central Government (Section 8) and hold office during the pleasure of the Central Government. The Port Commissioners can borrow money only under an order of the Central Government so directing (Section 18). Under Section 36 of the Act, Government may order local survey and examination of any works of the Commissioners under the Act, or the intended site thereof with power to the Central Government under Section 37 of the Act to restore, complete, or construct works on failure of the Commissioners. The Central Government has also the power to supersede the Commissioners under Section 38. Power of the Commissioners to enter into certain contracts beyond the specified limit must have to be with the previous sanction of the Central Government as in Section 48 of the Act. No sale, alienation or lease of any immovable property for any estate or interest exceeding the term of thirty years by the Commissioners can be valid unless the previous sanction of the Central Government is first obtained for such sale, alienation or lease under Section 55 of the Act. Instances of extensive Government control and power over the Commissioners may be multiplied from other sections of the Act. One of them is that the Commissioners' power of making bye-laws is subject to the confirmation of the Central Government as under Section 126(4) of the Act.
13. As pointed out by the Supreme Court in Baseswar Nath v. Commissioners of Income-tax, Delhi : 35ITR190(SC) , three different kinds of rights can be posited. One is the fundamental right guaranteed by the Constitution; the second is other constitutional rights not guaranteed as fundamental rights but provided in other parts of the Constitution; and the third is the statutory right conferred to a person under any particular Statute. The question here is important because the two dock areas with which we are concerned in these appeals are King George's Dock and Kidderpore Dock. The affidavit makes it clear that the dock is owned by the Commissioners for the Port of Calcutta; therefore this dock area is their property held under Section 55 of the Calcutta Port Act. They pay municipal rates as owners of the docks and exercise all rights of ownership. It is their duty under Section 83 of the Act to make, erect or fix wharves, quays, stages, jetties and piers and nobody else can do so under Section 83 of the Calcutta Port Act. They have the power under Section 95 to provide that no goods shall be landed or shipped from or upon any seagoing vessel within the port save at the docks, wharves, quays, stages, jetties or piers erected under this Act. No doubt as a private individual owner, the Commissioners for the Port of Calcutta cannot act without any limitation. Being a statutory body the Port Commissioners have to act within 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 who does not suffer undersuch statutory limitations. But then the question is that can any breach of such statutory obligations or duties by the Port make a breach of the statutory right, if that right be in the applicant, a fundamental right or a constitutional fight within the meaning of the classifications made by the Supreme Court in : 35ITR190(SC) , quoted above. No citizen, in our view, can say that he has a fundamental fight to carry on business in the land or building or area owned by somebody else be he an individual or a statutory corporation. This is the crux of the whole matter. It will be useful and necessary here at this stage to refer to some decisions on this point.
14. The first case that we propose to notice is T.B. Ebrahim v. Regional Transport Authority, Tanjore : 4SCR290 . Ghulam Kasan, J, at page 299 : (of SCR): (at p. 82 of AIR) delivering the judgment of the Supreme Court observes as follows :
'It may be that the appellant by reason of the shifting of the bus-stand has been deprived of the income he used to enjoy when the bus-stand was used for outward journeys from Tanjore, but that can be no ground for the contention that there has been an infringement of any fundamental right within the meaning of Article 19(1)(g) of the Constitution. There is no fundamental right in a citizen to carry on business wherever he chooses and his right must be subject to any reasonable restriction imposed by the executive authority in the interest of public convenience.'
15. This observation clearly says that there is no fundamental right in a citizen to carry on business wherever he chooses. From this it must follow that there is no fundamental right in a citizen to carry on business within the port area and particularly in the docks owned, managed and controlled by the Port Commissioners.
16. The second case is Veerappa Pillai v. Raman and Raman Ltd. : 1SCR583 . Chandrasekhara Aiyar, J. at page 595 of the report (SCR): (at p. 196 of AIR) observes:
'The Motor Vehicles Act is a statute which creates new rights and liabilities and prescribes an elaborate procedure for their regulation. No one is entitled to a permit as of right even if he satisfies all the prescribed conditions. The grant of a permit is entirely within the discretion of the transport authorities and naturally depends on several circumstances which have to be taken into account.'
17. Similarly it may be said that the Calcutta Port Act is a statute which creates new rights and liabilities and by its Bye-laws prescribes an elaborate procedure for their regulation. If therefore the Commissioners for the Port of Calcutta require a licence from a stevedore before they allow any one to enter their own property, namely, the dock area, then that is a matter which is entirely within their discretion but this imposition of a condition of licence does not raise or create any fundamental right in a citizen to invade the property of the Port Commissioners, One citizen's fundamental right to carry on business cannot infringe another person's equally good fundamental right to hold his own property. Equal regard for each citizen's fundamental rights alone upholds the harmony and purpose of any bill of rights.
18. Similarly in P. Balakotaiah v. Union of India : 1SCR1052 it was laid down by Venkatarama Aiyar, J. at page 1064 (of SCR): (at p. 238 of AIR):
'The appellants have no doubt a fundamental right to form associations under Article 19(1)(c), but they have nofundamental right to be continued in employment by the State, and when their services are terminated by the State they cannot complain of the infringement of any of their constitutional rights, when no question of violation of Article 311 arises. This contention of the appellants must also be rejected.'
19. This decision is an authority for the proposition that no one has a fundamental right to be employed as a Government servant. It follows that no claim could be made on that basis under Article 19(1)(g), for a right to carry on any occupation. Government service as an occupation is a particular occupation and apparently Government service is not a kind of occupation within the meaning of Article 19(1)(g) which gives a fundamental right which was described as a right inherent in all and which can be carried on by all.
20. The next case is of : 1SCR566 , which had already been distinguished by Mahajan, C. J. in the case quoted above. There the Bye-law of the municipal board provides that no person shall establish any new market or place for wholesale transactions without obtaining the previous permission of the Board, and no person shall sell or expose for sale any vegetable at any place other than fixed by the board for the purpose. Another Bye-law permitted the grant of a monopoly to a contractor to deal in wholesale transactions at the place fixed as :a market. The Supreme Court held there that the prohibition became absolute in the absence of provision authorising the issue of a licence, and, inasmuch as the municipal board had, further, put it out of its power to grant a licence to the petitioner by granting a monopoly, the restrictions imposed were not reasonable within the meaning of Article 19(6). This case does not help the petitioner for many reasons. First, because the right to sell vegetables is a kind of business inherent in all and therefore, was well within the meaning of fundamental right and the claim there was to sell vegetable in one'e own premises or a premises rented by him. The case here is very different. Here the petitioner is claiming to carry on business of stevedoring in the land, wharves, quays, jetties and area owned by the Commissioners for the Port of Calcutta.
21. The case on which most reliance was placed by the petitioner is Saghir Ahmed v. State of U. P. : 1SCR707 . There Mukherjea J. points out at page 719 of the Report (SCR) : (at p. 735 of AIR):
'The legislation in the present case has excluded all private bus owners from the field of transport business. Prima facie it is an infraction of the provision of Article 19(1)(g) of the Constitution and the question for our consideration therefore is whether this invasion by the legislature of the fundamental right can be justified under the provision of Clause (6) of Article 19 on the ground that it imposes reasonable restrictions on the exercise of the right in the interests of the general public.'
22. Two points have distinguished that authority from the present appeal before us. 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 thequestion is whether the Commissioners for the Port of Calcutta can or cannot permit by a licence or otherwise to regelate 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. It may also be added here that it was after this decision in Saghir Ahmad's case, : 1SCR707 an amendment was made of the Constitution introducing Clause 6(2) under Article 19 by the Constitution First Amendment Act, 1951, with the result that even the particular decision in that case will be otherwise now after that amendment. J.Y. Kondala Rao v. Andhra Pradesh State Road Transport Corporation : 1SCR642 .
23. The decision of the Allahabad High Court in Mohammad Yasin v. District Magistrate, Kanpur : AIR1954All317 is relevant on the point in so far as it holds that a petition writer has no legal right, let atone fundamental right, to carry on his profession or business in the Collectorate compound. As pointed out by Mootham, J. at p. 318 of the report:
'The petitioner, has in my opinion, no right to carry on his business in the Collectorate compound save with the permission of the Collector, and if that permission is withdrawn the petitioner may have a grievance, but I cannot see that he has any legal remedy unless it can be founded on breach of contract .......... The petitioner must satisfy this Court that he has a legal right and that there has been any infringement of that right; this in my opinion he, has failed to do.'.
24. On a review of the various authorities and for reasons stated above we are of the opinion that the petitioner has no fundamental right as guaranteed by Article 19(1)(g) of the Constitution to carry on the business of a Stevedore in a particular place, namely the two DOCKS, owned and controlled by the Commissioners for the Port of Calcutta. The learned judge's reference to the definition of State under Article 12 as applying to the Port Commissioners as local authority is no doubt right but in our opinion the error was not in holding that a Bye-law made by the Port Commissioners is within the meaning of Article 13 but in finding on the basis of a Bye-law a fundamental right, as guaranteed by Article 19 of the Constitution, which in fact and in law does not exist. It is not right in our opinion to hold that a Bye-law comes within the net of fundamental rights when in fact there is no fundamental right at all. A fundamental right must be pre-existing tie-fore the impugned statute or the bye-law and is to be tested with reference to Article 19. When there is no such pre-existing fundamental right, it cannot be created by the impugned bye-law or the Statute. A statute or a bye-law may create a statutory right but cannot create for the first time a fundamental right within the meaning of the. Constitution. The bye-law may infringe a pre-existing fundamental right and when it does so will be constitutionally invalid. But here there is no fundamental right for a citizen to carry on the business of stevedoring in the Dock owned and controlled by the Calcutta Port Commissioners. A new fundamental right cannot be created because the bye-law was made by the Port Commissioners to regulate by licence or otherwise people to work in that port as Stevedores.
24a. Realising this difficulty, a distinction was attempted to be drawn on behalf of the petitioner between any property owned by the Commissioners for the Port ofCalcutta such as the Dock and those properties which are not owned but only controlled by the Port Commissioners. In other words, the whole of the Port area does not consist of land or buildings actually owned by the Port Commissioners. Some portions including the Dock are of course the property of the Port Commissioners. Therefore, it was said that in other areas of the Port which are not owned by the Port Commissioners, a fundamental right to carry on business of Stevedoring at such area of the Port, not owned by the Port Commissioners should be found in favour of a citizen. The area of the Calcutta Port is defined by notification under Section 5 of the Indian Ports Act, 1908 and under Section 6 of which the Government has power to make Port Rules for various purposes mentioned there. Under Section 7 of the Indian Ports Act, Conservators are appointed for the Ports and the Commissioners for the Port of Calcutta are appointed Conservators under Rule 2 of the Port Rules. This distinction is of no help to the petitioner between the property owned and the property controlled, for we are only concerned with the Dock area which is a property owned by the Port Commissioners. So far as Stevedoring goes, with which this appeal is concerned, it is clear that no goods can be landed save at the Dock as already indicated by reason of provisions contained in Section 95 of the Calcutta Port Act.
25. We, therefore, hold that the petitioner has no fundamental right under Article 19 of the Constitution to carry on the particular business of stevedoring at the Docks owned and controlled by the Port Commissioners,
26. There being no fundamental right as claimed by the petitioner, many of the arguments challenging the Bye-law as unreasonable within the meaning of Article 19 of the Constitution become unavailing. But a bye-law, even apart from the Constitution can be challenged, and is challenged as being unreasonable. An unreasonable bye-law is invalid. Broadly, speaking, a Bye-law can be challenged as bad on any one of the following grounds:
(1) That it is not made, sanctioned and published in the manner prescribed by the Statute which authorises its making.
(2) That it is repugnant to any other law of the country.
(3) That it is repugnant to the Statute under which it is made.
(4) That it is uncertain,
(5) That it is unreasonable.
See Craies on Statute Law (Fifth Edn.) -- p. 298. Almost all the above grounds have been urged in argument before us to challenge both the old and the new Bye-laws.
27. It is first challenged on the ground that there is no power to regulate the Stevedores by making a provision for requiring a licence from them under Section 125 of the Calcutta Port Act under which Bye-laws are made. That argument in our opinion has no substance. Section 126 (1) of the Calcutta Port Act provides that it shall be lawful for the Commissioners in a meeting from time to time to make such Bye-laws as are consistent with the Act. The Bye-law requiring licence for Stevedoring work in the Dock is not in our view inconsistent with the Calcutta Port Act and the Indian Ports Act, 1889 as a general proposition. It also expressly provides for the purposes for which bye-laws can be made. Purpose (a) expressly states 'for regulating ......... decks, wharves, quays, stages, jetties and piers on and from which goods shall be landed from, and shipped in, vessels within the port.' Then Clause (b) provides 'for regulating the manner in which, and the conditions under which, the loading and discharging of all vessels within the port shall be carried out.'
28. Regulating stevedores by licence comes within the meaning of regulating the docks and the manner and the conditions under which loading and discharging from vessels have to take place. Clause (c) of Section 126 (1) of the Calcutta Port Act also provides for the purpose of 'the safe and convenient use of such docks, etc.........' Licensing of the stevedores certainly ensures the safety and convenient use of the docks as otherwise if every citizen had a fundamental right to be there to carry on stevedoring business, the safety of the dock would be in jeopardy.
29. Then again under Section 126 (1) (i), the purpose is put in broad terms as 'for otherwise carrying out the purposes of this Act.' One of the major purposes in this Act is under Section 90 of the Calcutta Port Act for the Commissioners to provide, keep and maintain sufficient servants and apparatus for expeditious and convenient landing and shipment of goods from and upon all sea-going vessels brought to the docks, wharves, quays, stages, jetties or piers erected by them. Licensing of stevedores is such an arrangement for expeditious and convenient landing and shipment of goods.
30. We are, therefore, of opinion that Bye-law 4-A, either the old or new, is not ultra vires Section 126 of the Calcutta Port Act.
31. The Bye-law was next challenged on the ground that it has not been made or sanctioned in the manner prescribed by the Statute. As pointed out already, the essential point on this branch of the argument is that in the new Bye-law 4-A made by the Port Commissioners the word 'permanent' was there but when it was confirmed by the Government, the word 'permanent' was dropped. It is, therefore, argued that under Section 126 (3) of the Calcutta Port Act, the Government has only a power to confirm what-ever was put forward or made by the Port Commissioners but they could neither alter, amend or change such bye-law. In other words, the plain contention in this case is that the confirming authority under this sub-section of Section 126 of the Act is only a rubber-stamp authority. There are many reasons to hold that this contention cannot be accepted on the meaning and interpretation of the word 'confirmed' used under Section 126 (3) of the Calcutta Port Act. First, to take such a narrow and technical view of the word 'confirmed' would mean that even for typographical or grammatical or other mistakes in punctuation the confirming authority is powerless to correct them. Secondly, the word 'confirmed' etymologically comes from the old French and Latin 'Confermere' meaning thereby to make firm or strengthen. Confirmation in such a case should include some element of application of mind and some consequential and necessary correction. Thirdly, when Section 126 (3) provides for the bye-law to be confirmed by the Central Government, it ought to mean that it may confirm it either in whole or in part, as otherwise it would mean that the making' authority is made the confirming authority virtually. Therefore it is unreasonable to construe the word 'confirmed' as meaning to confirm as a whole as it: is or not at all. It will be more proper to apply the word: 'confirmed' when the whole can be confirmed, that a part thereof can be confirmed. Fourthly, by deleting of not confirming the word 'permanent' in the present context as. an adjective of the word 'staff, the alteration does not amount to making an altogether a new bye-law in any senseit only means this that it may be permanent or non-permanent but the essential conditions that the staff should be 'qualified and fully trained' are there. Therefore, this change is not, in our view, any material change at all and the Court would treat it as de minimis. Fifthly, such a narrow construction or interpretation of the word 'confirmed' in Section 126 (3) of the Calcutta Port Act would practically make the whole of the provision regarding publication under Sub-section (4) of the section meaningless. Section 126 (4) says in essence that no bye-law shall be confirmed until the same has been published for two weeks successively in the official Gazette and until fourteen days have expired from the date on which the same had been first published in that Gazette. What is the good or utility of this requirement of publication before confirmation if the confirming authority has no power to take into consideration the objection that may be raised when the bye-law is under publication and before confirmation? If confirmation was to follow as a matter of course as a rubber-stamp to everything that was originally stated in the bye-law made by the Commissioners for the Port of Calcutta, then all these provisions for previous publication lose all value in the sense that the confirming authority cannot act upon the comments and criticisms made during publication but only can send the whole of the bye-law back again along with the comments and criticisms made, which the Port Commissioners themselves might have published before making the laws and which again would make the making authority virtually the confirming authority.
32. In this connection, it is necessary td refer to the Bengal General Clauses Act as the Calcutta Port Act is a Bengal Act. Section 24(4) of the Bengal General Clauses Act expressly provides that the authority having power to make the bye-law, where the bye-law is to be made with the sanction, approval or concurrence of another authority, then that authority also, shall consider any objection or suggestion which may be received by the authority having power to make the bye-law from any person with respect to the draft before the date so specified. In order to get out of the rigour of this section it was contended on behalf of the petitioner that Section 24 only applies where the bye-law is expressly subject to the condition of being made after previous publication. It was, therefore, attempted to be argued that in this case the making of the bye-law by the Port Commissioners was not after previous publication and, therefore, the whole of Section 24 of the Bengal General Clauses Act did not apply and, therefore, Sub-section (4) thereof had no application. The question here again is What is the making of the bye-law within the meaning of the opening words of Section 24 of the Bengal General Clauses Act? On that point the marginal note of Section 126 of the Calcutta Port Act is significant. The marginal note is 'power to make, alter or repeal bye-laws.' In other words, the making of the bye-law within the scheme of Section 126 of the Calcutta Port Act includes confirmation by the Central Government. In other words, confirming is part of making within the particular context of Section 126 of the Calcutta Port Act. It is also consistent with the view that we have taken of Sub-section (4) of Section 126 about publication before confirmation so that the publication is truly helpful in the matter of confirmation. It is also essential to emphasise that under Sub-section (3) of Section 126 of the Calcutta Port Act no bye-law shall have effect until the same is confirmed by the Central Government. That means that making is not complete without confirmation for it is no use making a bye-law which waitsfor its force for some other act of confirmation. That sup-ports and is an added reason for the view that confirmation here is part of the making of the bye-law.
33. It remains now to refer to one or two decisions on the meaning of the word 'confirm' specially with a view to meet the argument advanced on behalf of the petitioner that the word 'confirm' means only to endorse or verify. This argument was, in fact, negatived in The Queen v. Mayor of York, (1853) 1 El and Bl 588 at p. 596, where Wightman, J. said :
' 'Confirmed' is a word, the natural meaning of which is more than 'indorsed' or 'verified'. It is equivalent to 'approved': and it is here to be construed in its natural sense, unless some manifest inconvenience is likely to arise from doing so.'
34. An attempt was made to confine the ward 'confirm' to the literal textual confirmation of what is already there on the basis of the confirmation of resolution of companies and schemes such as in the case of Wall v. London and Northern Assets Corporation, (1898) 2 Ch 469. That case however has no application because there was no provision like Section 126 (3) and the amendment there proposed was a vital alteration which completely changed the original resolution.
35. For these reasons, we hold that the new Bye-law 4-A was validly made and the learned Judge was wrong in his interpretation of the word 'confirm' in the context of Section 126 (3) of the Calcutta Port Act.
36. The next attack on both the old and the new Bye-laws was that it was unreasonable, unworkable and vague and uncertain. The learned Judge went into the details of the Bye-law and criticised it on the ground that such provisions as (1) the staff was sufficient in number, fully trained and qualified, (2) that the applicant for a licence has to satisfy the Commissioners of financial ability, and (3) that compensation can only arise where a workman meets with accident, are all vague without particulars and standards. He also comments on the absence of particulars of what constitutes a 'proper gear' within the meaning of the clause. This approach for particulars and specific and minute details in a Bye-law, in our opinion, is a wrong approach in law and in fact. The leading case for a benevolent interpretation of a bye-law is Kruse v. Johnson, (1898) 2 Q B 91. Lord Russel, C. J. at p. 99 of that report lays down the proper principle of construction for a Bye-law which has been followed ever since and is in these terms :
'But, when the Court is called upon to consider the Bye-laws of public representative bodies clothed with the ample authority which I have described, and exercising that authority accompanied by the checks and safeguards which have been mentioned, I think the consideration of such Bye-law3 ought to be approached from a different standpoint. They ought to be supported if possible. They ought to be, as has been said, 'benevolently' interpreted, and credit ought to be given to those who have to administer them that they will be reasonably administered. This involves the introduction of no new canon of construction. But, further looking to the character of the body legislating under the delegated authority of Parliament, to the subject-matter of such legislation, and to the nature and content of the authority given to deal with matters which concern them, and in the manner which to them shall seem meet, I think Courts of justice ought to be slow to condemnas invalid any Bye-law, so made under such conditions, on the ground of supposed unreasonableness.'
37. Then again, Lord Russel, C. J. at p. 100 of that report goes on to say:
'A Bye-law is not unreasonable merely because particular judges may think that it goes further than is prudent or necessary or convenient, or because it is not accompanied by a qualification or an exception which some Judges may think ought to be there. Surely it is not too much to say that in matters which directly and mainly concern the people of the county, who have the right to choose those whom they think best fitted to represent them in their local Government bodies, such representatives may be trusted to understand their own requirements better than Judges. Indeed if the question of the validity of Bye-laws were to be determined by the opinion of the Judges as to what was reasonable in the narrow sense of that word, the cases in the books on this subject are no guide; for they reveal, as indeed one would expect, a wide diversity of judicial opinion, and they lay down no principle or definite standard by which reasonableness or unreasonableness may be test-ed.'
38. Now applying that law to the context of this case it is needless to emphasise that under Section 5 of the Calcutta Port Act, the Commissioners for the Port of Calcutta is a very representative and expert body who would be expected to know what the requirements in a Bye-law should be. Such words as 'trained staff' or 'sufficient number' or what is a 'proper gear' are more easily understood in the context of their experience and day to day administration and surely the petitioner who claims to be, in his petition, an experienced Stevedore would equally know at least the broad requirements of such a Bye-law. To a Court of law they may sound strange but to a body of experts and those who are experts in the line of Stevedoring they need not be so. The same view of approach to Bye-laws was expressed by Lord Hob-house in the Privy Council decision in Slattery v. Naylor, (1888) 13 AC 446 at p. 452, in the following terms:
'But in determining whether or no a Bye-law is reasonable, it is material to consider the relation of its framers to the locality affected by it, and the authority by which it is sanctioned.'
In fact, Lord Hobhouse again at the same page 452 makes the remark:
'If it were possible to conceive that a Council such as that of Petersham could frame, and that the Governor of New South Wales could confirm and publish, a merely fantastic and capricious Bye-law, such as reasonable men could not make in good faith, ........ it would raise in a very crucial shape the question whether a Court of law could set it aside as unreasonable ..... It is quite a different question whether a Bye-law can be treated as unreasonable merely because it does not contain qualifications which commend themselves to the minds of Judges.'
39. To transfigure the remarks of Lord Hobhouse in the context of the instant Appeal, one would say here that it would be inconceivable to think that such an expert and representative body like the Commissioners for the Port of Calcutta as constituted under Section 5 of the Act with the added safeguard of the Government of India confirming the Bye-law, would make a Bye-law which is fantastic or capricious and totally unintelligible. The real test is that they should be intelligible by those who make them and for those for whom they are intended. In Everton v. Walker,(1927) 137 L T 594, Lord Hewart, C. J. quoted the above observation of Lord Russel of Killowen, C. J., in (18981 13 A C 446, as expressing the the canon of construction. At page 600 Lord Hewart, C. J. characteristically says:
'Applying those observations to the present case, I can-not help observing that we are really being asked to consider the reasonableness of a Bye-law made on the spot by a representative and aggregate body for the better and safer navigation by passengers of a particular part of the River Severn, and it seems to me that it is material--I speak for myself--that one unfortunately knows too little of the course, the dimensions and the other individual features of the River Severn in that part of it, the particular position of the looks which are to be navigated by passenger vessels going to and from Worcester, the habits, and especially the festive habits, of the population and the particular methods of local competitive traders. All these matters and many others were well within the knowledge, on the one hand, of the delegates who constituted the Severn Commission, and, on the other hand, of the elective persons who constituted the Corporation of the City of Worcester.'
Approaching the Bye-laws in that light, we do not think that they are invalid on the ground of being too vague or too nebulous or too unreasonable. As pointed out in the cases just cited, decisions are no authorities or guides and, therefore, it will be unnecessary to consider such decision as Parker v. Bournemouth Corporation, (1902) 86 LT 449, for the agreement was said to be left too vague or the decision in the other extreme in Williams v. Weston-super-Mare in (1907) 98 LT 537, on appeal in Williams v. Weston-Super-Mare Urgan Dist Council No. (2), (1910) 103 L T 9. In coming to this conclusion we have kept in view the wide Bye-law making powers under Section 126 of the Calcutta Port Act, the representative character and constitution of the Commissioners for the Port of Calcutta under Section 5 pf the Calcutta Port Act and the Scheme for making Bye-laws and the publicity attendant on the confirmation there-of by the Government of India as envisaged in Section 126 of the Calcutta Port Act as sufficient normal safeguards against anything unintelligible or unreasonable being produced either by those who are making the Bye-laws or for those who have to follow them. In conclusion, we need only say that no case actually was made in the petition setting out the facts on which it was intended to hold that the Bye-laws were vague or unworkable and in this respect it is necessary to remember the observation of Jagannadhadas J. in Shiv Bahadur Singh v. State of Vindhya Pradesh : 1954CriLJ1480 , namely,: 'The burden of making out the facts requisite for the constitutional invalidity is upon them (applicant)'. What is true of constitutional invalidity is true also of invalidity of Bye-laws on the ground of unreasonableness and the onus is always upon the person challenging the Bye-laws to establish the necessary facts which show that they are unworkable.
40. A question arose in the course of the argument if both the Bye-laws were validly made -- the old and the new which Bye-law would be applicable to the facts of the present case. The petition was presented on or about the 19th January, 1960 when the old Bye-law was in force. The new Bye-law came into force on the 13th August, 1960. The hearing of the petition concluded on the 8th December, 1960 after the new Bye-law had come into force, although the hearing had started on the 3rd June, 1960, when thenew Bye-law had not come into force. The judgment under appeal was delivered on the 3rd February, 1961. The first point is whether the doctrine of pending proceeding at all applies to administrative bodies. It seems that the doctrine of pending proceeding does not apply to administrative bodies and the administrative bodies must apply the law as it is on the day when it makes the order or takes the action. In Ziffrin v. Understates of America, (1942) 318 U S 73, Read, J. observed as follows:
'A fortiori, a change of law pending an administrative hearing must be followed in relation to permits for future acts. Otherwise the administrative body would issue orders contrary to the existing legislation.'
41. The law, if changed during the hearing of a case in a Court of Law must of course be applied as laid down by the Federal Court in Lachmeshwar Prasad v. Keshwar Lal . The doctrine of pending lis in a court of law is a judicial doctrine not applicable to purely administrative bodies who must follow the law as it stands when they are taking the administrative actions as pointed out by Read, J. above.
42. In the view that we have taken that both the old and new Bye-laws were validly made it must follow first that the new Bye-law validly and effectively repealed the old Bye-Jaw because it begins by saying--'In substitution of the existing Bye-law No. 4-A . . . . .' Therefore, it is the new bye-law which must have to be applied to the facts of this case.
43. The next attack of the petitioners is upon Clause 15 (1) (c) of the Scheme of 1956. This scheme was made under the Dock Workers (Regulation of Employment) Act, 1948. This Act is a short Act and its main provision appears in Section 3 providing for making of a scheme for the registration of dock workers with a view to ensure greater regularity of employment and for regulating the employment of dock workers whether registered or not. It is under this Act that the appellant, the Dock Labour Board, was constituted. In October 1951, in exercise of the powers conferred by this Act, the Central Government framed a scheme which was called the 1951 Scheme providing for the establishment of a Board called the Calcutta DOCK Labour Board. It was followed by the present Scheme of 1956 repealing the old Scheme of 1951. It is essential to remember that this 1956 Scheme is confined only to the work mentioned in the Schedule to the Scheme which means stevedoring work only and to specific categories of stevedoring workers. Clause 15 of this Scheme relates to maintenance of registers. Clause 15 (1) deals with employers' registers. In Sub-clause (a) it provides first, that there shall be a register of employers. Then in Sub-clause (b) it provides for the fact that in so far as the application of the Scheme to stevedore labour is concerned, every stevedore of a stevedoring firm who on the date of enforcement of the Scheme is already registered under the Calcutta Dock Workers (Regulation of Employment) Scheme, 1951, shall be deemed to have been registered under the present Scheme of 1956. It is then followed by Clause (c) which is the object of attack. It reads as follows:
'Persons or firms other than those who are deemed to have been registered under item (b) shall not be registered as stevedores unless the Board considers it expedient and necessary to do so and in no case shall a person or a firm be registered until he or it has been licenced in that behalf by the Port Authority.'
Under Clause 49 (2) of the Scheme of 1956, an appeal is provided to a stevedore who has been refused registration under Clause 15 (1) (c) to the Central Government through the Chairman.
44. As the judgment under appeal held that Bye-law 4A requiring licensing of stevedores was not a valid provision, it came to the conclusion that the latter portion of Clause 15 (1) (c) of the Scheme of 1956 was, therefore, invalid but being severable could be deleted.
45. Before discussing this argument, it will be appropriate to dispose of a short point urged by the learned counsel for the Dock Labour Board. It was suggested that the words 'licensed in that behalf by the Port Authority' in Clause 15 (1) (c) of the Scheme did not mean or refer to the licence under Bye-law 4-A because the licence under Bye-law 4-A was an annual licence to be renewed from year to year but this registration of employers was not annual. Besides, the annual licensing fee under Bye-law 4-A was only Rs. 10/- and the fee for renewal was only Rs. 5/-whereas a registration fee to be on the register of employers was Rs. 500/-. Therefore it was argued that the word 'licence' in Clause 15 (1) (c) of the Scheme was some other licence, something in the nature of a permit or permission by the Port Commissioners to permit registration. Apart from the fact that it will result in having two types of licences by the Port Authority, the argument suffers by reason of putting a wrong interpretation to the words 'in that behalf' as meaning for the purposes of registration. The words 'as stevedores' in the earlier part of Clause 15 (1) (c) are the more appropriate words which are referred to by the expression 'in that behalf'. Therefore 'licensed in that behalf' mean in Clause 15 (1) (c) as licensed as stevedores, thus bringing such licence in line with the licence under Bye-law 4-A. Besides, there would be no point in the Port Commissioners granting a licence for registration so that the applicant may be on the employers' register under the Scheme under the Dock Workers (Regulation of Employment) Act of 1948, a duty cast entirely upon the Dock Labour Board and not on the Commissioners for the Port of Calcutta. Therefore, it would be unreasonable to expect that the Commissioners for the Port of Calcutta should grant a licence permitting the proposed applicant to be on the register of employers under the Dock Labour Board. This argument therefore of the learned counsel for the appellant Dock Labour Board cannot be accepted.
46. The learned Judge came to the conclusion that as Clause 15 (1) (c) was subject to a condition and which condition was invalid or impossible of performance, therefore the whole law was bad. He struck down the entire Clause 15 (1) (c) and directed by the Writ that the Dock Labour Board should proceed as though it did not exist and should treat the petition of the applicant as to be on the register under Clause 15 (1) (a). For this purpose he relied on the decision of his own, which I have mentioned above, in AIR 1960 Cal 166. In our judgment, this course is not permissible. First, we do not think that Clause 15(1) (c) is invalid. Secondly, to permit every applicant to be on the register, because Clause 15 (1) (a) says that there shall be a register of employers and nothing more, then the very utility and purpose of keeping a register will vanish because every citizen in Calcutta or elsewhere would be entitled to be put on a register and there would be no point in keeping a register of that kind. To be on the register, gives certain rights and benefits in respect of the employment of dock labour. The very purposeof the register would then be nullified. Secondly, the learned Judge's direction in this case upon the Dock Labour Board to proceed according to that judgment in treating the petitioner's application for registration has been challenged on the ground that that decision is erroneous. Now that case deals with tally clerks not within the category of stevedore workers as mentioned in Schedule I of the 1956 Scheme, but as the learned Judge says at page 169 of the report:
'I am of the opinion that the petitioners, in so far as they carry on their business of supplying tally clerks, cannot be called stevedores.'
Here they were not really so much as tally clerks but it was the business of supplying tally clerks. If they cannot be called stevedores, as held by the learned Judge in that case, then the whole Scheme is inapplicable to them and they cannot be required to be on the register under Clause 15 (1) (a) of the Scheme itself because it is inapplicable to them and to their class. It is, therefore, necessary to emphasize that the register of employers under Clause 15 in the Scheme of 1956 is only confined to stevedoring work and the specific categories of stevedore workers, which may include a tally clerk as mentioned in the Schedule. In other words, this judgment in : AIR1960Cal166 , is erroneous on the ground that it does not deal with paragraph 2(2) of the Scheme of 1956 which expressly says --'The Scheme relates to the Port of Calcutta and applies to the classes or descriptions of dock work and dock workers set out in Schedule I.' We are, therefore, of opinion that that decision does not represent the correct view of the law and, therefore, the learned Judge's direction in this case by Writ to the Dock Labour Board to work according to that decision, cannot be upheld.
47. In this view of the matter it is unnecessary for us to embark on the doctrine and theory of severability of parts of Statute which are said to be bad. The principles of severability are sufficiently laid down in Attorney General of Alberta v. Attorney General of Canada, 1947 AC 503 at p. 518, State of Bombay v. F.N. Balsara, 1951 SCR 682 at p. 727 : (AIR 1951 SC 318 at p. 331) and R. M. D. Chamar Baugwalla v. Union of India : 1SCR930 .
48. Finally, Mr. Roy for the Dock Labour Board urges that Clause 15 (1) (c) cannot in any event be invalid because even if the grounds stated by the learned Judge were right that there was no provision for licence which could be validly imposed by the Port Commissioners. His contention is that this ground does not cover the field of the Scheme of 1956 and the Dock Workers (Regulation of Employment) Act 1958 under which such scheme could be properly formulated and for this purpose he said that the Scheme in any event should have been held valid even though a good and valid Bye-law might have been necessary to replace the stricken down one. He relied for that purpose on Campbell v. Earl of Dalhousie, (1868) 1 Sc and Div 259 at p. 268, as per the observations of Lord Cairns, L. C. It is unnecessary for us to discuss this branch of the argument any more having regard to our conclusion that Clause 15 (1) (c) and the Scheme of 1956 on the point are valid.
49. In conclusion we have to emphasise that the provision relating to licence in these circumstances must be read in the light of the observations of the Supreme Court in : 1SCR583 , already quoted. Even if all the qualifications aresatisfied by the applicant, he may not even then get a licence and cannot claim as a matter of right to get a licence on the ground that he satisfies all qualifications because giving of a licence to ail qualified persons would be to defeat the very object of a licence in the present circumstances of regulating and controlling unguided exploitation of dock labour by limiting employers on the register licence in this context remains a discretion.
50. A preliminary point is made on behalf of the Port Commissioners and the Calcutta Dock Labour Board that no order has yet been passed on the application of the petitioner for a licence or for registration and therefore this application is premature. This preliminary point we do not think can succeed because there has been sufficient waiting on the facts of this case for us to hold that the perpetual reply that the matter was under consideration without making an order amounts to refusal and justified the applicant in moving this court. It is clear on the admission of the Dock Labour Board and the Port Commissioners that the petitioner's application is still under consideration and if that be so, then the petitioner might get relief by application of the law as laid down by us here.
51. Finally, it was also urged that the petitioner never made a demand for justice. We find on the facts of the case that there is no substance in this objection. Demands were made both upon the Calcutta Dock Labour Board as well as the Commissioners for the Port of Calcutta. The correspondence on record, particularly the letter dated January 28, 1959, the letter dated February 2, 1959, letter dated February 17, 1959, letter dated February 26, 1959, letter dated March 2, 1959 and finally letter dated May 5, 1959 bear ample testimony to such demand.
52. It must be remembered in this connection the observations of the Supreme Court in Commissioner of Police, Bombay v. Gordhandas Bhanji : 1SCR135 , that this demand for justice must not be reduced to an idle ceremony.
53. Right at the end of the arguments, counsel for the Port Commissioners and the Dock Labour Board tried to justify Bye-law 4-A on the ground that it is protected by the First Constitutional Amendment of Article 19, Clause (6) Sub-clause (ii). As we have held that Bye-law 4-A does not affect any fundamental right at all in this case, this plea for protection under Article 19(6)(ii) is only an additional plea. No doubt that under Article 12 the Port Commissioners are included within the definition of State and particularly within the meaning of the words 'all local or other authorities' appearing therein. No doubt also that under Article 13(3) law includes Bye-law. Therefore the Port Commissioners in making the Bye-law will be governed by the words 'nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to or prevents the State from making any law relating to carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business or industry or service, whether to the exclusion, complete or partial of citizens or otherwise', in Article 19(6)(ii) of the Constitution.
54. This argument was answered by the petitioner by the contention that here the Port Commissioners' work cannot be said to come within the meaning of trade, business, industry or service carried on by the State or by a corporation owned or controlled by the State. Having regard to the expression 'Corporation controlled by the State' used in that article of the Constitution it will be,on the different sections of the Calcutta Port Act which we have analysed, very difficult to say here that the Port Commissioners are not a corporation controlled by the State. No doubt the State does not control in this case by holding shares or debentures but the word 'control' is not confined to shares and debentures or voting strength. It means control in any form or shape and the word 'controlled' in this article of the Constitution is unqualified. Extensive statutory control by the State of the body corporate of the Port Commissioners of Calcutta has been already shown by our survey of the different sections of the Act. Such control by the State comes within the meaning of this constitutional provision. In any event, the word 'State' here also means the Port Commissioners under Article 12 of the Constitution. It may nevertheless be said that working of the port cannot be called business, trade or industry. But there is another word 'Service' under Article 19(6)(ii) of the Constitution. This word was noticed by the Supreme Court in : 1SCR642 and Subba Rao, J. at page 87 observed as follows:
'Article 19(6) is only a saving provision and the law made empowering the State to carry on a business is secured from attack on the ground of infringement of the fundamental rights of a citizen to the extent it does not exceed the limits of the scope of the said provision. Sub-clause (ii) is couched in very wide terms. Under it the State can make law for carrying on a business or service to the exclusion, complete or partial of citizens or otherwise. The law, therefore, can provide for carrying on a service to the exclusion of all the citizens; it may exclude some of the citizens only; it may do business in the entire State or a portion of the State, in a specified route or a part thereof. The word 'service' is wide enough to take in not only the general motor service but also the species of motor service.'
55. The statutory duties imposed by the Calcutta Port Act and which we have discussed above, certainly can lead us to the conclusion that they provide 'service' within the meaning of this constitutional clause. As pointed out by Subba Rao, J. the clause is very wide. In fact the words 'or otherwise' indicate, as explained again by Subba Rao, J. in that decision, that it may be by complete or partial exclusion, or otherwise by some kind of control such as by licensing as in this case. It is unnecessary for us to say anything more on this sub-clause or to indicate how far this clause extends because of our main, decision in this case that no fundamental right at all can be claimed by the applicant to carry on the business of stevedoring, in this particular area like the dock owned and controlled by the Port authorities.
56. The result is that the judgment of the learned Judge is set aside and this appeal along with the other connected appeals are allowed with costs in this Court in each case. The order of the lower Court with regard to costs will not be disturbed. The petitions are dismissed. Certified for two counsel for the first two appeals.
57. I agree.