The Tuticorin Sailing Vessel Owners Association v. The Union of India

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 12.07.2007CORAM:THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJAWrit Petition No.11925 of 2001 The Tuticorin Sailing Vessel Owners Association, rep. by its Secretary, L.P.Dasan,77, Thattar Street, Tuticorin-628 001. .. PetitionerVs.

The Union of India, rep. by Secretary, Ministry of Shipping Ports Wing, No.1, Transport Bhavan, Parliament Street, New Delhi-110 001.

The Chairman, Tuticorin Port Trust, Tuticorin... RespondentsWrit Petition filed under Article 226 of the Constitution of Indiapraying to issue a writ of certiorarified mandamus calling for the records in GSR.260(E) dated 17.04.2001 published in the Gazette of India Extra-ordinary as well as the Notification in GSR.389(E) dated 25.05.2001 on the file of the first respondent and quash the same and direct the first respondent to appoint one of the elected nominee of the PetitionerAssociation representing the interest of Owners of Sailing Vessels, as aTrustee of the Board of Trustees in accordance with Section 3 of the MajorPort Trust Act 1963.For petitioner : Mr.Antony JesusFor respondents : No appearance for R1 Ms.O.Asha for R2

O R D E RThis writ petition is filed to call for the records in GSR.260(E)dated 17.04.2001 published in the Gazette of India-Extraordinary, as well as the Notification in GSR.389(E) dated 25.05.2001 on the file of the first respondent and quash the same and direct the first respondent to appoint one of the elected nominee of the Petitioner Association https://hcservices.ecourts.gov.in/hcservices/ representing the interest of Owners of Sailing Vessels, as a Trustee of the Board of Trustees in accordance with Section 3 of the Major Port TrustAct 1963.2.The petitioner is a registered society under the Tamil NaduSociety Registration Act bearing Registration Number as S.2 of 1970. Thepetitioner-Association was founded by the Owners of Sailing Vessels of Tuticorin Port Trust for the benefit of owners of the vessels and also for coordinating with the management of the Tuticorin Port Trust for the efficient working.

There are about 40 mechanised sailing vessels all plying between Tuticorin Colombo-Maldives and Lakshadweep and west coast of India, and 12 lighterage boats. Besides, there are about 1000 Boatmeninvolved in the trade and various categories of workers are depending on this trade by way of transporting, loading, unloading etc. The Associationalso extends their cooperation with the Management of the Port Trust for efficient functioning. The rights of the members of the Association is also recognised by the Government as well as the Management of the PortTrust. Originally, Tuticorin Port Trust was known as "Tuticorin HarbourProject". Subsequently, in the year 1963, the Government of Indiarecognised and sanctioned for the construction of all weather Major Portof Tuticorin under the direct control of Ministry of Shipping and Transport. Thereafter the Tuticorin Harbour Project was declared as aMajor Port Trust in and by virtue of the provisions of Indian Ports Act,1908 and continued to be under the control of Central Government.

Subsequently, the Harbour Project was declared as Tuticorin Port Trustunder the provisions of the Major Port Trust Act, 1963 and the same iseffective from 01.04.1979. Consequently, the management and administration came to be vested with the Board of Trustees constituted by virtue of Section 3 of the Major Port Trust Act, 1963. Section 3 of the Major Port Trust Act, 1963 provides for the constitution of Board of Trustees. The Board shall consist of the Trustees, viz. a Chairman to be appointed by Central Government and one Deputy Chairman as the CentralGovernment may deem fit to appoint. Besides, there are not more than 17persons who are in the opinion of the Government capable of representing the various interests such as labourers employed in the Port, MercantileMarine Department, Customs Department, Government of State in which the Port Trust is situated, Defence Service, Indian Railways and also such number of persons to be elected by such bodies and representing any one or more of such of the interest specified in the notification, viz. shipowners, Owners of Sailing Vessels, shippers and such other interest in the opinion of Government to be the representatives of the Board.

As the Tuticorin Port became a major Port from 01.04.1979, a Board of Trusteeswas constituted in accordance with Section 3 of the Major Port Trust Act,1963 and the petitioner-Association elects one of its members and the elected member represents the petitioner-Association as a Trustee. Eversince 1979, this practice was going on and as such, the petitioner-Association is entitled to nominate its representative for being appointed as the Trustee of Tuticorin Port Trust under Section 3 of the Major PortTrust Act, 1963. The term of the Board of Trustees constituted in the https://hcservices.ecourts.gov.in/hcservices/ year 1999 ended on 31.03.2001 and thereafter, due to some reasons, thepetitioner-Association's nominee was not appointed as a Trustee. Thefirst respondent, in his Notification in GSR 260(E) dated 17.04.2001,appointed five persons representing Government Functionaries by virtue of the powers conferred under Section 3 of the Major Port Trust Act, 1963.Subsequently, by another Notification in GSR.389(E) dated 25.05.2001, the first respondent appointed six more Trustees, totalling to eleven Trusteesto the Tuticorin Port Trust. As the petitioner-Association's nominee has not been appointed as a Trustee, the present writ petition is filed.

Learned counsel appearing for the petitioner contended that by virtue of Section 3 of the Major Port Trust Act, 1963, the petitioner-Association should be represented in the constitution of the Board of Trustees and it is not open to the first respondent to deny the same. Itis also submitted that, earlier the petitioner-Association was recognised and their nominee was also appointed as Trustee in the Board of Trustees. Hence the petitioner's representative ought to have been appointed by the first respondent. It is also submitted that the failure on the part of the first respondent in not nominating the petitioner-Association'srepresentative is contrary to the provision of Section 3 of the MajorPort Trust Act, 1963 and as such, it is an error on the face of the record. It is also further submitted that the Government issued aNotification in the year 1989, wherein the Government of India had taken into consideration the facts that the Owners of Sailing Vessels should be represented by a representative in the interests of the both the management of the Tuticorin Port Trust as well as the petitioner-Association. It is therefore, submitted that it is absolutely necessary that the petitioner-Association's nominee shall be appointed as a Trusteeof Board of Trustees in accordance with Section 3 of the Major Port TrustAct, 1963. Therefore, it is submitted that, not appointing thepetitioner-Association's nominee as one of the Trustee by the first respondent is wrong, illegal, without basis and justification. Hence the impugned notifications have to be quashed.

Learned counsel appearing for the second respondent filed acounter affidavit and submitted that it is not a matter of right that thepetitioner-Association's nominee should be appointed as a Trustee in the Board of Trustees. It is also submitted that there is no statutory recognition or statutory right conferred, that the petitioner has to be appointed. It is also submitted that appointing the petitioner-Association's nominee as a Trustee is under the discretion of the respondents and hence not appointing the petitioner-Association's nomineeas one of the Trustee would not amount to any violation of law. Hence the orders passed by the first respondent are in accordance with law.

Heard the counsel. It is seen that the Central Government has issued a Notification in G.S.R.213(E) dated 27.03.2001, which reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ "G.S.R.213(E).-In pursuance of the provisions of sub-clause (ii)of clause (c) of sub-section (1) of Section 3 of the Major PortTrusts Act, 1963 (38 of 1963) and in supersession of the notification of the Government of India in the erstwhileMinistry of Surface Transport (Ports Wing) No.G.S.R.No.379(E)dated 20th May 1999, the Central Government hereby specifies the number of persons mentioned in column (4) of the Table below tobe elected by each of the bodies to represent each of the interests shown respectively in the corresponding entries in column (2) and (3) of the said Table on the Board of Trustees of the Port of Tuticorin. 2. Provided that in the case of the body mentioned against the serial number 6 of the said Table being owned or controlled by the Government, the person to be elected by the said body shall be appointed by the Central Government.

An alternative plea has been made by the counsel for the petitioner that the petitioner's nominee should be considered for future appointment. It is open to the respondents to consider the matter in accordance with law, if so advised. Sd/Asst. Registrar/true copy/Sub Asst. RegistrarkmTo1. The Secretary to Government, Government of India, Ministry of Shipping Ports Wing, No.1, Transport Bhavan, Parliament Street, New Delhi-110 001.2. The Chairman, Tuticorin Port Trust, Tuticorin.1 cc To Mr.J.Antony Jesus, Advocate, SR.43094.1 cc To M/s.Anand, Abdul & Vinodh, Advocate, SR.42473.W.P.No.11925 of 2001KLT(CO)RVL 27.07.2007