M/S. Delta Engineers vs State Of Goa & Ors

The appellant runs a barge repair workshop on a private land at Oudossim, Cortalim on the banks of river Zuari within the jurisdiction of Panaji Port. According to the appellant, there are two types of barge workshops: one is dry dock workshop, and the second is where the barges anchored in the river along side the workshop are repaired. Appellant's workshop falls under the second category as it undertakes repair of barges 2 only when the barge is floating above the waterline. About 1300 sq. mtrs. of the river area adjoining the workshop is used by the anchored barge under repair. The Zuari being a tidal river, the water level therein recedes during low tide and rises back during high tide. Consequently, the barge under repair moored alongside the river bank, would settle on the riverbed during low tide and rise with the water during high tide.

2. Appellant opened its workshop in the year 1983, after securing a NOC dated 25.7.1983 from the Captain of Ports, Government of Goa. The said NOC was renewed every year. On 29.8.1989, the appellant sought an amendment to NOC seeking permission to manufacture fishing trawlers etc. The Captain of Ports sent a reply dated 15.11.1989 calling upon the appellant to settle the outstanding dues (rental charges for use of river area adjoining the workshop) before considering the request for issue of a modified NOC. Appellant replied on 27.11.1989 stating that it was not using any government land to repair barges, and all its activities were carried on within its own plot and therefore the question of any dues did not arise. Some years later, the Captain of Ports issued a show cause notice dated 15.5.1992 alleging that the appellant was using government riverine land for the workshop without paying the prescribed rental charges, in spite of 3 demand letter dated 15.11.1989, and therefore, the appellant should show cause why the NOC issued to it on 25.7.1983 for setting up the workshop, which was being renewed every year, should not be revoked or withdrawn for non-payment of the outstanding rental charges for use of the government riverine land from 1983. The demand was reiterated on 13.7.1992. By letter dated 1.11.1993, the Captain of Ports informed the appellant that unless there was compliance with the demand, action will be taken to revoke the NOC and evict the appellant. In view of the said threat, the appellant, without prejudice to its rights and under protest, sent a payment of Rs.145000/- on 25.9.1995 stating that the amount paid was calculated with reference to the use of 1000 sq.m. of river area.

4. The High Court by a common order dated 11.4.2001, dismissed the appellant's writ petition and other similar petitions. It found that the challenge was only to the 1992 and 1994 amendments and not to the unamended Goa, Daman and Diu Port Rules, 1983; that the Port Authorities were entitled to levy rental charges on `open land' from the date when the said Rules came into force (on 15.4.1984), under Rule 64 read with Entry 21 (4)(A-iv) in the First Schedule of the said Rules; that the term `open land' included riverine land and the amendments to the rules in 1992 and 1994 merely clarified the said pre-existing position; and that as the power to levy rental charges was not created for the first time under the 1992 or 1994 amendment to the rules, but existed even under the unamended rules which were not challenged, the appellant could not avoid liability to pay the rental charges demanded. The said judgment is challenged in this appeal by special leave.

We therefore hold that the 1992 amendment and the 1994 amendment to the Goa, Daman and Diu Ports Rules, 1983 which enable the Port Authorities to levy, charge and recover a fee or charge for using open Government riverine land from the person who is permitted to use such Government riverine land is within the rule making power of the State, and cannot therefore be said to be ultra vires the rules making power under the Act.

[emphasis supplied] The amendment rules do not provide that they are retrospective in operation. Nor do the circumstances warrant such an inference. In fact, the contention of the respondents is not that power to levy fees/charges for use of riverine land was created/vested in the port authorities, by virtue of the amendment rules and that such power was given to levy fees/charges retrospectively. The contention has been that the power to levy fees/charges existed ever since the Rules came into force on 5.4.1984 and that position was merely clarified by the amendment rules in 1992 and 1994. We have already held that the amendment rules of 1992 and 1994 are not clarificatory, but are provisions investing the port authorities with the power to levy and collect charges for occupation of government riverine land. Therefore, the demand for charges for use of government riverine land is valid only from 3.3.1994. Therefore the Port Authorities could not demand or recover any amount for the period prior to 3.3.1994. The Port Authorities are therefore liable to refund any amount recovered within three years prior to the date of the writ petition. Obviously, any amount paid during a period beyond three years 26 from the date of the writ petition, is not recoverable as barred by delay and laches.

25. We therefore allow these appeals in part as follows :

CA Nos. 5511, 5512, 5513 & 5515 of 2001

26. These appeals are allowed in part in terms of the judgment in CA No. 5510/2001.