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PETITIONER: MAHESH TRAVELS & TOURS & ANR. ETC.

       Vs.

RESPONDENT: COMMISSIONER OF POLICE & ORS.

DATE OF JUDGMENT01/05/1989

BENCH: PATHAK, R.S. (CJ) BENCH: PATHAK, R.S. (CJ) OZA, G.L. (J)

CITATION:  1989 AIR 1525            1989 SCR  (2) 825  1989 SCC  Supl.  (2) 303 JT 1989 (2)   476  1989 SCALE  (1)1182

ACT:     Bombay    Police   Act,   1951:    Section    67--Police authorities--Right of--To prepare and enforce roster  system for operating launch services.     Port of Bombay Passenger Boat Rules, 1962: Rules 4, 6, 7 and   19--Regulation  of  the  use  of  landing   place   by launches--Framing of roster and its imposition--Only  method of regulation.

HEADNOTE:     The  appellants were operating launch services  for  joy rides,  film shooting, etc. from Appollo Pier or Gateway  of India  to  Elephanta Island in Bombay. Respondent  7  was  a cooperative association of launch owners also engaged in the same  activities. The members belonging to the  associations were  operating  launch services turn by turn  on  voluntary roster system to avoid unhealthy competition.     When efforts were made by the police and the Port  Trust Authorities  to resolve the difference in the  operation  of launch  services between the association and the  appellants failed, a roster system was chalked out on the direction  of the Deputy Conservator of Bombay Port Trust which was sought to be enforced by the police. When some employees working in the  launches were arrested for failure to act according  to the  roster  system,  the appellants  filed  writ  petitions claiming that the police and the Port Trust Authorities  had no authority to compel them to follow the roster system.     The High Court dismissed the writ petitions holding that the Bombay Port Trust Rules conferred powers upon the Deputy Conservator to give directions for berthing and for  mooring and  unmooring the vessels in the Port, and that  apart  the police  and  the Port Trust Authority  had  adequate  powers under  the  Port of Bombay Passenger Boat  Rules,  1962  and section  67 of the Bombay Police Act to regulate the  manner in which the launches carried Passengers.     In the appeals to this Court, it was contended On behalf of the appellants that: (1) the Deputy Conservator of Bombay Port  Trust,  respondent No. 3 was not empowered in  law  to devise an order of the 826 imposition of a roster, and that this action was beyond  the

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powers  conferred by the Indian Ports Act 1908,  the  Bombay Port Rules and the Port of Bombay Passengers Rules 1962. (2) Respondent  No. 3 had purported to act under Rules 4 and  19 of  the  Bombay  Port Rules, Rule 4 of the  Port  of  Bombay Passenger Boat Rules, and section 7 of the Bombay Police Act in  having  the roster system enforced by the  Inspector  of Police.  (3) The roster has tendency to prohibit  trade  and the power to regulate Is being misused as a power to prohib- it. (4) The imposition of the roster is too severe a measure to  deal with the simple problem of overcrowding  and  chaos and touting for passengers, (5) The provocation for devising and  imposing a roster was the complaint made by the  appel- lant’s  trade rivals. and (6) The roster has  been  prepared and  is  being enforced without recourse  to  any  statutory provision enabling respondent No. 3 to devise it and  impose it. Dismissing the appeals, the Court,     HELD:  1. The roster system provides for the  regulation of  traffic, so that each launch obtains an  opportunity  of access  to the landing place. This is not a distribution  of business,  but  a  distribution of the time  for  which  the landing  place can be used, and therefore, a  regulation  of the use of the landing place. The roster is intended to give effect  to  Rule  4 of the Port of  Bombay  Passenger  Boats Rules,  1962.  There is no reason why recourse to  a  roster system should be considered as unreasonable. [830C.F]     2. The dominant purpose of the regulation of the use  of the  landing place by the launches is to prevent  congestion and  a possible breach of peace. The real purpose  that  the roster  is intended to serve, is to ensure the even flow  of traffic at landing places. [830H; 831A]     Smt. S.R. Venkataraman v. Union of India & Anr.,  [1979] 2  SCC  491;  Brownelis Limited v.  The  Ironmongers’  Wages Board--Brownells Limited v. The Drapers’ Wages Board, [1950] 81  C.L.R. 108 and Hanson v. Radcliffe Urban District  Coun- cil,  [1922] 2 Ch. 490 inapplicable.     3. All the launches owners have equitable access to  the landing  place  and if the other conditions for  plying  the launches,  such as holding of a proper licence,  are  satis- fied,  there  is no reason why the launches, turn  by  turn, cannot avail of the facility of an equitable opportunity  to use the landing place. [831C-D] 827     4(a)  There is no excessive invasion of  the  appellants Fundamental Right to carry on business. [831E]     4(b)  What should be the duration for which  the  appel- lants  may  be allowed to use the landing  place,  and  what should  be the turn in which such user may be  permitted  is essentially  a  matter for the judgment of  the  authorities concerned. It is not possible for the Court to adjudicate on this point. [831E-F]     5.  The disputes between the parties in relation to  the application  of  the roster is not a matter  on  which  this Court will readily enter. [831G]     6.  The  imposition of a roster is  reasonable  and  the power  to impose a roster can be spelt out from  the  powers conferred  on the authorities under the  relevant  statutory provisions.  The  roster is only one method  of  regulation. [831H; 832A]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeals Nos.  3008- 3009 of 1984.

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   From the Judgment and Order dated 28.11.83 of the Bombay High Court in Appeal No. 880 of 1983.     Kapil Sibal, Harish Gajtiani, Rajiv Datta and Nitin Rout for the appellants.     Shanti  Bhushan,  J. Makhija, Mrs. A.K. Verma  and  D.N. Misra for Respondent Nos. 3 and 4. G.B. Sathe and A.S. Bhasme for Respondent Nos. 1, 2 and 5.     K.K.  Sanghi,  Brij  Bhushan and Anil  Kumar  Gupta  for Respondent No. 7. The Judgment of the Court was delivered by     PATHAK, CJ. These appeals are directed against an  order of  the Bombay High Court dismissing in limine  the  appeals filed  by  the appellants herein against the judgment  of  a Single Judge dismissing their writ petitions challenging the right  of  the police authorities to prepare and  enforce  a roster system for operating launch services between  Gateway of India at Bombay and Elephanta Island. 828     The  appellants  are operating launch services  for  joy rides,  film shootings, etc. from Apollo Pier or Gateway  of India to Elephanta Island, and respondent No. 7 is a cooper- ative association of launch owners also engaged in the  same activity.  It  appears that originally the  appellants  were desirous  of  acquiring membership of this  association  but were  denied  entry, and thereafter it was  the  association which  wanted the appellants to join its membership but  the appellants declined the offer. The members belonging to  the association were operating launch services turn by turn on a voluntary  roster system to avoid unhealthy competition.  It appears  that  when the efforts made by the police  and  the Port  Trust  Authorities to resolve the differences  in  the operation of launch services between the association and the appellants  failed, a roster system was chalked out  on  the direction  of  the Deputy Conservator of Bombay  Port  Trust (Respondent  No. 3) which was sought to be enforced  by  the police.  When some employees working in their launches  were arrested for failure to act according to the roster  system, the appellants filed writ petitions claiming that the police and  the Port Trust authorities had no authority  to  compel them  to follow the roster system. The High Court  dismissed the  writ petitions holding that the Bombay Port Rules  con- ferred powers upon the Deputy Conservator to give directions for  berthing and for mooring and unmooring the  vessels  in the  Port  and, that apart, the police and  the  Port  Trust authorities  had  adequate powers under the Port  of  Bombay Passenger  Boat  Rules, 1962 and Section 67  of  the  Bombay Police  Act  to regulate the manner in  which  the  launches carried passengers.     The  only  point for consideration in these  appeals  is whether  the Deputy Conservator of Bombay Port Trust  and/or the  police had the power to prepare and enforce the  roster system.     The Port of Bombay Passenger Boat Rules, 1962 have  been framed  by  the  Central Government in  exercise  of  powers conferred by Section 6(1)(k) of the Indian Ports Act 1908:               6(1)  "The Government may, in addition to  any               rules which it may make under any other enact-               ment  for the time being in force,  make  such               rules, consistent with this Act, as it  thinks               necessary  for any of the following  purposes,               namely: 829 (k) for licensing and regulating catamarans plying for hire, and  flats  and  cargo, passenger and  other  boats  plying, whether  for  hire  or not, and whether  regularly  or  only

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occasionally,  in  or partly within and partly  without  any such port and for licensing and regulating the crews of  any such  vessels, and for determining the quantity of cargo  or number  of  passengers or of the crew to be carried  by  any such  vessels; and may by such rules provide for  the  feeds payable  in respect of any such license, and in the case  of vessels plying for hire, for the rates of hire to be charged and  the conditions under which such vessels shall  be  com- pelled to ply for hire, and further for the conditions under which any licence may be revoked;"     Rule 4 of the Port of Bombay Passenger Boat Rules,  1962 prescribes  that boats plying for hire shall not lay  beside the  landing  place  longer than necessary  and  shall  obey orders  of  the police for regulating the  traffic.  Rule  6 forbids  the tindals and the boatmen to tout for  hire  near the landing place.     Rule  4  of the Bombay Port Rules flamed by  the  Bombay Port Trust in exercise of powers conferred under the  Indian Ports Act, 1908 prescribes that all vessels within the  port shall  be bound to take up such berths as may  be  appointed for  them by the Deputy Conservator and shall  change  their berths  when  required by the authorities. Rule  19  thereof provides  that  all vessels within the port shall  moor  and unmoor or anchor in accordance with the orders of the Deputy Conservator.     Clauses  (b) and (c) of Section 67 of the Bombay  Police Act, 1951 provide: 67. "It shall be the duty of a Police Officer--        ..                 ..                   ..        ..                 ..                   .. (b)  to keep order in the streets and at and  within  public bathing, washing and landing places, fairs, temples and  all other  places of public resort and in the  neighbourhood  of places of public worship, during the time of public worship; (c) to regulate resort to public bathing, washing and  land- ing places, to prevent overcrowding thereat and in public 830 ferry-boats and, to the best of his ability, to prevent  the infraction of any rule or order lawfully made for observance by the public at any such place or on any such boat."     It  is contended by learned counsel for  the  appellants that the Deputy Conservator of Bombay Port Trust, respondent No.  3  is not empowered in law to devise on  order  of  the imposition  of  a roster. It is urged that  this  action  is beyond  the  powers conferred by the Indian Ports  Act,  the Bombay  Ports  Rules and the Port of Bombay  Passenger  Boat Rules. We see no force in this contention. The roster system provides for the regulation of traffic, so that each  launch obtains an opportunity of access to the landing place.  This is not a distribution of business but a distribution of  the time for which the landing place can be used, and therefore, a regulation of the use of the landing place. Rule 4 of  the Port  of  Bombay Passenger Boats Rules, 1962  provides  that boats  plying  for hire should not lay  along  side  landing places longer than necessary and must obey the orders of the police  for regulating traffic. The boat shall not  be  laid longer than actually necessary to embark or land  passengers and their luggage, but must be kept off at a distance of  at least 30 metres from the landing place or gangway ladders so as  not to obstruct the approach thereto. The  licencees  or other attendants of the boat are required to obey all orders given to them by the police for the regulation of the  traf- fic at the landing places or gangways of vessels. Consistent with  the provisions of Rule 4, which are  plainly  intended for  the  maintenance of order, is rule  6  which  prohibits

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tindais and boatmen tout for hire near the landing places to the  annoyance  of people passing by, and rule  7  prohibits them  from carrying on the business of a hawker. The  roster is  intended to give effect to Rule 4, and we see no  reason why  recourse  to a roster system should  be  considered  as unreasonable.     The second contention of learned counsel for the  appel- lants  is  that the respondent No. 3 has  purported  to  act under Rules 4 and 19 of the Bombay Port Rules, Rule 4 of the Passenger  Boat Rules and s. 67 of the Bombay Police Act  in having  the roster system enforced by the Inspector  of  Po- lice.  We have considered those provisions, but we  are  not convinced that the context in which those provisions operate is  in any manner inconsistent with the framing of a  roster and  its  imposition for regulating the use of  the  landing place  by the launches. On the contrary, they contemplate  a situation, and provide for just the exercise of power, which underlies  the  adoption of a roster  system.  The  dominant purpose of the regulation of the use of the landing place by the launches is to prevent congestion and a possible  breach of peace. 831 The  submission  that the roster has been  devised  for  the purpose  of  bringing  about a  distribution  of  passengers ignores  the  real purpose that the roster  is  intended  to serve, namely to ensure the even flow of traffic at  landing places. An attempt has been made to show that the roster was prompted by malice, and we are referred to Smt. S.R.  Venka- taraman  v. Union of India & Anr., [1979] 2 SCC 491, but  we see  nothing to support the plea. We cannot accept  that  an ulterior  motive--the regulation of business--is behind  the roster.  Brownells Limited v. The Ironmongers’ Wages  Board, Brownelis  Limited  v. The Drapers’ Wages Board,  [1950]  81 C.L.R. 108 and Hanson v. Radcliffe Urban District Council, [ 1922] 2 Ch. 490 do not help the appellants.     It  is  then urged that the roster has the  tendency  to prohibit trade and the power to regulate is being misused as a  power  to prohibit. There is a fallacy in  the  argument. There  is  no prohibition of the business at  all.  All  the launch owners have equitable access to the landing place and if  the  other conditions for plying the launches,  such  as holding  of  a proper; licence, are satisfied, there  is  no reason  why the launches, turn by turn, cannot avail of  the facility  of  an equitable opportunity to  use  the  landing place.     It is said then that the imposition of the roster is too severe  a measure to deal with the simple problem  of  over- crowding  and  chaos and touting for passengers. This  is  a matter  for the judgment of the authority concerned and  ex- facie  we do not see any ground for holding that the  roster system  is not reasonable in the circumstances. There is  no excessive  invasion of the appellants’ Fundamental Right  to carry  on  their business. What should be the  duration  for which  the  appellants  may be allowed to  use  the  landing place, and what should be the turn in which such user may be permitted  is essentially a matter for the judgment  of  the authorities  concerned. It is not possible for the Court  to adjudicate on this point.     Learned  counsel for the appellants complains  that  the provocation  for  devising  and imposing a  roster  was  the complaint made by the appellants’ trade rivals. The disputes between  the parties in relation to the application  of  the roster  is  not a matter on which this  Court  will  readily enter.     Finally,  it  is contended for the appellants  that  the

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roster  has been prepared and is being imposed  without  re- course  to  any statutory provision enabling the  third  re- spondent to devise it and impose it. It seems to us that the imposition of a roster is reasonable and the power to 832 impose  a roster can be spelt out from the powers  conferred on  the authorities under the statutory  provisions  already referred to. The roster is only one method of regulation. It may  be  feasible and fruitful in a certain set  of  circum- stances.  In  another set of circumstances it  may  be  more appropriate to adopt some other principle for resolving  the problem of a large number of launches using a limited  land- ing  place.  It is apparent that passengers can  be  invited into  the launches only when a boat is standing against  the jetty,  and  it would be a matter for the  launch  owner  to ensure that he has a sufficient number of passengers by  the time indicated in the roster for berthing his launch at  the landing  place. It must be remembered that Rule 4  envisages an  opportunity to the owner of the boat to  embark  passen- gers.  The  opportunity is not intended for the  purpose  of keeping  the boat at the landing place for so long a  period of time that it can fill up with passengers. The time period is to be determined by the need to keep the traffic  moving. The  circumstances  that the boat may come in  and  stay  no longer than is necessary to pick up the passengers indicates that  the emphasis is on the maintenance of orderly  traffic and the prevention of congestion at the landing place.     We  see  no  substance in these appeals and  we  are  of opinion that they must be dismissed.     A number of suggestion were made by learned counsel  for the  appellants by way of settling the  controversy  between the  parties in regard to the use of the landing  place  and devising  arrangements for securing optimum access for  each boat. These suggestions, it seems to us, can be made  before respondent  No.  3, and it is open to him to  consider  what would be the most equitable arrangement. In  the  result the appeals are dismissed but  there  is  no order as to costs. N.V.K.                              Appeals dismissed. 833