Ripley & Co. Stevedoring & Holding Pvt. Ltd. and Others vs The Board of Trustees for the Port of Kolkata and Others

Arijit Banerjee, J.—These four writ petitions have been taken up for hearing and disposal together as they involve common questions of fact and law.

The Kolkata Port Trust (in short ''KPT'') issued a Notice Inviting Tender (in short ''NIT'') dated 21st July, 2014 seeking to impose a condition for payment of royalty on the volume cargo handling of the Shore Handling Agents at the Haldia Dock Complex and also seeking to fix a ceiling limit on the charges which the operators can charge for their services rendered to private customers. These two clauses of the NIT are under challenge in the four writ petitions. Clauses 4.3, 7.12 and 14 of the NIT which are under challenge are set out hereunder:--

"Clause 4.3 - The bidder has to quote the Rate of Royalty payable by it to KoPT on per ton basis on dry bulk cargo which will be handed by it at HDC under the Handling Agency License to be granted in terms of the instant tender and the terms & conditions thereof as contained in the Bid Document. In addition the bidder has to pay the applicable Service Tax and other taxes and duties, if any.

Clause 7.12 - Only those bidders, who undertake to pay royalty to KoPT at the highest bid received, will be issued Handling Agency License and will be allowed to undertake shore handling of dry bulk cargo at HDC after obtaining Handling Agency License to be issued by KoPT. Bidders not submitting such undertaking will be debarred from undertaking shore handling of dry bulk cargo at HDC.

Clause 14 - Payment to be received by Handling Agent from its principals:

14.1 - For rendering services as per the Scope of Work contained in the Bid Document the Handling Agent will be entitled to receive payment from their Principals within the ceiling rates mentioned below:

Submission of the Petitioners (Re: WP 22511 (W) of 2014)

Imposition of the aforementioned terms is beyond the jurisdiction and authority of KPT, which is a statutory body whose power is circumscribed by the Major Port Trusts Act, 1963 (in short ''MPT Act''). KPT is not authorized by the MPT Act to prescribe the rights at which shore handling agents can charge exporters/importers who are serviced directly by the petitioners. Only the Tariff Authority for Major Ports (in short TAMP) can do so under Section 48 of the MPT Act as amended in 1997.

Levy of royalty is not authorized by the Scale of Rates published by the TAMP, which is binding on KPT.

Under Section 48 of the MPT Act, only the TAMP can fix the rates at which the ports or their authorized agents can charge for services rendered under Section 42 (1) . The services contemplated under Article 3 of the Tender fall within the scope of Section 42(1)(b) of the Act. TAMP has not framed scale of rates applicable for authorized agents of KPT. The scale of rates only authorize KPT to charge a fee for grant of any agency license under Article 17.11 thereof. The rates prescribed under Article 6 of the Scale of Rates relating to shore cargo handling services apply only if the Port renders the services directly with application of its equipment, labour and resources. Where the Port does not render such services it is entitled to charge any fee. The said Article 6 does not make any mention of ''authorized agents'' of the Port being bound by the rates.

KPT has no power to impose any financial condition or any levy or tax or recompense or royalty under Section 42(3) of the MPT Act. Such power is exclusively vested with TAMP under Section 48 of the Act. KPT is not empowered to prescribe rates at which Handling Agents can charge their respective principals in respect of services rendered exclusively by Handling Agents under private contracts to which KPT is not a party. In the case of State of Madhya Pradesh and Another Vs. Thakur Bharat Singh, , at paragraph 5 of the judgment, the Hon''ble Supreme Court observed that every Act done by the Government or its officers must, if it is to operate to the prejudice of any person, be supported by some legislative authority.

The Central Government has filed an affidavit in the Gujarat High Court in connection with Writ Petition (PIL) 276 of 2013 relying on its Stevedoring Policy in which the expert committee has opined that extracting a revenue share from the operators will result in a pass through increase in rates for the trade by imposing an additional burden on them. This would result in further eroding the major Ports'' competitiveness. The report ends with the following sentence: "Hence, the committee does not favour levy of revenue share or royalty from the stevedores/shore Handling Agents."

KPT does not lend any infrastructure support or render any service in connection with shore cargo handling activity. It does not pass on any privilege to the private shore handling operators. Even for entry into the Port premises separate entry fee as per TAMP rates are recovered. For storage and warehousing facility, if availed from the Port, separate ground rent has to be paid. The Handling Agency license is only a mechanism of registering the private operators who may carry out their respective independent businesses at the Port. It is akin to municipal trade license issued to private traders and business establishments. The KPT has never any involvement with the rendering of service by the Handling Agents. The Port has no contract or dealing with the importers or exporters who avail of such services. The tender itself recognizes that importers and exporters are to remain the direct principals of the Handling Agents without the Port being privy to contracts between them.

Section 42(4) of the MPT Act does not apply in the instant case since no scale of rates has been framed by TAMP which applies to authorized agents of the KPT. No other Port in India has extended the scale of rates framed by TAMP to private handling agents unless separate TAMP rates have been framed for such operators. In a previous instance, when Haldia Bulk Terminals Ltd. had been engaged by KPT for berth Nos. 2 and 8 at Haldia Dock, TAMP, on KPT''s requisition, had framed a separate scale of rates applicable to that operator. It is admitted by KPT that the scale of rates fixed by TAMP are statutory and mandatory (Para 8(b) of A/O). It is also admitted that no person has any authority to recover rates in excess of the amount prescribed by TAMP for rendering shore handling services (para 8(e) of A/O). Hence, the KPT cannot recover from the shore handling agents amounts in excess of what is permitted by the Scale of Rates prescribed by the TAMP. Section 42(3) of the MPT Act does not confer any right on KPT to levy any duty or royalty or charge or fee beyond the TAMP rates.

Clause 17.8 of the Scale of Rates prescribes the clearing forwarding license fees and Clause 17.11 prescribes the permit and licence charges which the KPT can levy on handling agents and the rates thereof. KPT cannot impose any levy or charges in addition to those by using the nomenclature ''royalty'' or otherwise.

The ceiling limits of rates as prescribed by Clause 14.1 of the NIT are even less than the rates prescribed by TAMP for services rendered by KPT directly to its customers. The said rates are unreasonable, discriminatory and arbitrary and in violation of Article 14 of the Constitution. Further, the petitioners'' freedom of contract with third parties is being illegally interfered with.

TAMP has increased the licence fee for issuing handling agency licence and also the rates at which KPT can charge for rendering shore handling services by 20 per cent at the request of KPT in February, 2014. However, the TAMP did not make any provision for ''royalty'' in favour of KPT or for extending its scale of rates to licensed shore handlers operating privately.

KPT has no authority/jurisdiction or power to fix or in any way interfere with the rates at which the petitioners and other shore handling agents have been charging their direct customers, namely importers and exporters at the Haldia Dock Complex. Clause 14.1 of the NIT should be declared to be without authority of law and/or jurisdiction and KPT should be directed to delete the said Clause from the NIT.

The royalty sought to be imposed by KPT is also without authority of law and without any power or jurisdiction. The MPT Act does not confer any power on the KPT to impose Royalty on Handling Agents. KPT is entitled to recover only such amount of fee or charges from the Handling Agents as have been fixed by Clause 17.11 of the Scale of Rates framed by TAMP. By imposition of royalty, KPT is purporting to recover from the Handling Agents amounts in excess of what KPT has been permitted to recover from the Handling Agents under the Scale of Rates.

There is no ''quid pro quo'' for the royalty sought to be imposed by KPT. The royalty will be in addition to licence fee. Royalty is really in the nature of a tax. It is an attempt of recovering tax without any authority of law by KPT and is thus violative of Article 265 of the Constitution.

The Board of Trustees of KPT rejected the scheme for imposition of royalty at their meeting dated 18th July, 2014. The decision to proceed with the scheme is violative of Section 16(3) of the MPT Act which provides that all questions at a meeting of the Board shall be decided by a majority of the votes of the Trustees present and voting and, in the case of an equality of votes the person presiding shall have a second or casting vote. Imposition of royalty is the unilateral decision of the chairman and is bad for being in violation of Section 16(3) of the MPT Act.

The Central Government by its letters dated 13th June, 2013 and 8th July, 2014 directed the chairman of KPT that the scheme for levy of royalty may be operationalized with the approval of the Board. The Chairman, was not authorized by the Central Government to introduce the provision of royalty in disregard of the majority views of the trustees.

At the next Board meeting, the minutes of the proceedings of the Board meeting dated 18th July, 2014 was confirmed without any change or modification of the dissenting views of the majority members. The subsequent meeting of the Board was held on 3rd November, 2014. The question of levy of royalty was not even proposed.

As regards what is meant by the phrase ''Without authority of law'' the petitioners relied on the following:--

(a) Wade & C.F. Forsyth on Administrative Law, 11th ed. Pages 15 to 18, pages 27 to 29 - Rules of law and doctrine of ultra vires in administrative law. Primary meaning of ''Rule of Law'' is that everything must be according to Law. Every Government Authority which does some act which would otherwise be a wrong or which infringes a man''s rights must be able to justify its action as authorized by law.

(b) City Industrial Development Vs. Platinum Entertainment, . In the said judgment the Hon''ble Supreme Court observed at paragraph 37 that it is well settled that whenever the Government dealt with the public establishment in entering into a contract or issuance of licence, the Government cannot act arbitrarily on its sweet whim but must act in accordance with law.

(c) Nikhil Chandra Das vs. State of West Bengal reported in (2007) 2 CHN 909. In that case, a Ld. Single Judge of this court held that the settled principle of law is that court can interfere where State acts in an arbitrary or in a mala fide manner or where mala fide motive is attributed. No strait jacket formula can be laid down and each case has to be decided on its own facts.

(d) KEC International Limited and Another Vs. Union of India and Others--> . In that case, a Ld. Judge of this court held that the test of equality as recognized by Article 14 of the Constitution has to be seen more from the recipient''s point of view than the State''s. An erroneous yardstick equally applied to all results in discrimination and smacks of arbitrariness. The flawed benchmark may not have been chosen out of malice or caprice and yet the high test under Article 14 would render the State action unreasonable. Equality is as much about the sanctity of the decision-making process as it is about the uniform application thereof. Public interest lies in ridding the decision-making process of any element that would lead to discrimination.

The petitioner is aggrieved with the unreasonable and unfair elimination from the business of shore handling which would be an obvious consequence for not responding to the NIT and not consenting to payment of royalty and fixation of ceiling rates to be charged from its customer. The petitioner has obtained clearing and forwarding agency licence which is valid till 14th January, 2024 and Handling Agency Licence which was valid till 14th May, 2014, both on payment of fees fixed by TAMP. The licence of the writ petitioner namely Ripley & Co. and A.M. Enterprises have not been extended after they expired in May, 2014. The KPT is preventing them from carrying out any function on the plea that only those agents who have participated in the impugned tender can operate as Shore Cargo Handling Agents.

KPT cannot enter into any contract or frame any policy containing terms contrary to law and particularly contrary to the provisions of the MPT Act. Section 42(3) or Section 42(3)(A) does not authorize KPT to exercise powers conferred upon TAMP under the Act. Secondly, the condition precedent under both the sections is - "Previous approval of the Central Government" - which is lacking in this case. By letters dated 13th June, 2013 and 8th July, 2014 the Central Government had only advised the Chairman of the Board of Trustees that the prospect of advising a scheme for royalty may be explored and be operationalized only upon the Board''s approval. The Trustees have rejected the levy of royalty. The Chairman of KPT has, while imposing royalty, acted in suppression of the views of majority of members of the Board of Trustees, which he cannot do under Section 16(3) of the MPT Act.

Ld. Counsel referred to the decision in the case of Bangalore Medical Trust Vs. B.S. Muddappa and others, . In that case, in the context of the Bangalore Development Act, 1976, the Supreme Court observed that Section 65 of the Act reserved the overall power in the Government to give such directions to the Development Authority as it considers expedient for carrying out any purpose of the Act. An exercise of power which is ultra vires the provisions in the statute cannot be attempted to be resuscitated on general powers reserved in a statute for its proper and effective implementation. The Section authorizes the Government to issue directions to ensure that the provisions of law are obeyed and not to empower itself to proceed contrary to law. What is not permitted by the Act to be done by the authority cannot be assumed to be done by State Government to render it legal. The illegality cannot be cured only because it was undertaken by the Government. An illegality or any action contrary to law does not become in accordance with law because it is done at the behest of the Chief Executive of the State. No one is above law. In a democracy what prevails, is law and rule and not the height of the person exercising the power.

Ld. Counsel then referred to a decision of the Hon''ble Supreme Court in the case of Reliance Energy Limited and Another Vs. Maharashtra State Road Development Corporation Ltd. and Others, . In that case, the Hon''ble Apex Court observed that the standard applied by the Courts in judicial review must be justified by constitutional principles which govern the proper exercise of public power in a democracy. Article 14 of the Constitution embodies the principle of ''non-discrimination''. However, it is not a free-standing provision. It has to be read in conjunction with rights conferred by other Articles like Article 21 of the Constitution. Decisions or acts which results in unequal and discriminatory treatment, would violate the doctrine of ''level playing field'', embodied in Article 19(1)(g) . It is trite law that Article 14 of the Constitution applies also to matters of governmental policy and if the policy or any action of the government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional. When tenders are invited, the terms and conditions must indicate with legal certainty, norms and benchmarks. The legal certainty is an important aspect of the rule of law. If there is vagueness or subjectivity in the said norms it may result in unequal and discriminatory treatment. It may violate the doctrine of ''level playing field''.

Re: WP 22512 (W) of 2014:--

Ld. Counsel for the petitioner adopted the submission of Ld. Counsel for the petitioner in WP No. 22511 (W) of 2014. He submitted that the KPT charges for every bit of work that the Handling Agents do in the port premises. All works are carried out by the petitioners with their own labour and equipment. KPT does not handle dry bulk cargo. The cargo handling agents pay the Port for utilizing its infrastructure at the rate fixed by TAMP. The charges paid by the principals to the agents are decided by marked force and the TAMP has no role to play regarding the same.

Only TAMP can determine the Scale of Rates. No one has else any power in that regard. KPT at the most can make a recommendation which is not binding on anybody concerned.

Referring to the extract from the proceedings of the Trustees'' meeting held on 13th December, 2012 (page 53 of A/O) Mr. Pradip Ghosh, Ld. Sr. Counsel, submitted that it was resolved by the Board that the proposal for levy of royalty on the revenue earned by various Handling Agents/cargo services providers would be sent to the Ministry of Shipping for approval and royalty would be levied accordingly from the date of such approval of the Ministry. Mr. Ghosh then referred to an extract from the meeting of Trustees'' held on 18th July, 2014 (page 96 of A/O) and submitted that the scheme for royalty and the ceiling rate that could be charged by the Handling Agents from their clients, were both beyond the power and jurisdiction of the Board of Trustees. It is the TAMP which is the authority empowered to decide such issues.

He submitted that the KPT''s scale of rates for shore handling charges cannot be made applicable without the approval of TAMP. The Trustees cannot usurp the power and authority of TAMP. KPT intentionally did not approach TAMP for fixation of the rates.

The Chairman of the Board had no authority to overrule the decision of the majority and introduce the scheme for levy of royalty on handling agents. The Board has no power to impose any levy even as an interim measure. Only the TAMP has the authority to do so.

Mr. Ghosh submitted that a public authority must act in the interest of the public at large. In this connection he relied on a decision of the Hon''ble Supreme Court in the case of LIC of India and Another Vs. Consumer Education and Research center and Others, . In the said judgment the Hon''ble Apex Court at paragraphs 23 and 26 observed that every action of the public authority or the person acting in public interest or any act that gives rise to a public element, should be guided by public interest. It is the exercise of the public power or action hedged with public element that becomes open to challenge. If it is shown that the exercise of the power is arbitrary, unjust and unfair, it should be no answer for the State to say that its actions are in the field of private law and it is free to prescribe any conditions or limitations in its actions as private citizens. Its actions must be based on rational and relevant principles. Every administrative decision must be hedged by reasons. The court has rejected the contention of an instrumentality of a State that its action is in the private law field and would be immune from satisfying the tests laid down under Article 14 . The dichotomy between public law and private law rights and remedies, thought may not be obliterated by any strait jacket formula, it would depend upon the factual matrix. The distinction between public law remedy and private law field cannot be demarcated with precision any more.

Mr. Ghosh referred to a decision of the Hon''ble Supreme Court in the case of Delhi Development Authority, N.D. and Another Vs. Joint Action Committee, Allottee of SFS Flats and Others, . At paragraphs 59 and 60 of the judgment, the Hon''ble Supreme Court observed that an executive order termed as a policy decision is not beyond the pale of judicial review. Whereas the superior courts may not interfere with the natty grittiest of the policy or substitute one for the other, it will not be correct to contend that the court has no jurisdiction to judicially review a policy decision. Broadly speaking, a policy decision is subject to judicial review if it is unconstitutional, or if it is dehors the provisions of the Act and the Regulations, or if the delegatee has acted beyond its power and delegation or if the executive policy is contrary to the statutory or a larger policy.

Mr. Ghosh then relied on a decision of the Hon''ble Supreme Court in the case of Meerut Development Authority Vs. Association of Management Studies and Another, in support of his contention that the underlying object of judicial review is to ensure that the authority does not abuse its power and the individual receives just and fair treatment. Judicial quest in administrative matters is to strike the just balance between the administrative discretion to decide maters as per Government policy and the need of fairness. An unfair action must be set right by judicial review.

Finally Mr. Ghosh relied on a decision of the Hon''ble Supreme Court in the case of Biman Krishna Bose Vs. United India Insurance Co. Ltd., wherein at page 481 of the judgment the Hon''ble Supreme Court observed that even in an area of contractual relations, the State and its instrumentalities are enjoined with the obligations to act with fairness and in doing so, can take into consideration only the relevant materials. They must not take any irrelevant and extraneous consideration while arriving at a decision. Arbitrariness should not appear in their actions or decisions.

Re: WP 22307 (W) of 2014:--

Appearing on behalf of the petitioner Mr. Tilok Bose, Ld. Senior Counsel submitted that the petitioner is an aggrieved party and its locus standi to maintain the writ petition cannot be doubted. He submitted that the petitioner has not participated in the tender because it is challenging certain terms of the tender which affect the rights of the petitioner. He submitted that the Clauses of the Tender which are under challenge are contrary to the rule of law. The rule of law has four facets namely, illegality; Government must act according to law; Government must not act arbitrarily; and the doctrine of fairness.

Mr. Bose submitted that Clause 14 of the Tender which proposes to impose a ceiling on what agents can charge from their principals is illegal as being violative of Article 14 and Article 19(1)(g) of the Constitution as also violative of Section 48(1) of the MPT Act. Further, KPT also cannot claim royalty as the same is not backed by authority of law. The proposal to impose royalty is violative of Section 48(1) of the MPT Act as also Articles 14 and 265 of the Constitution.

On the point of role of TAMP, Mr. Bose relied on the decision in the case of APL (India) Pvt. Ltd. Vs. Chairman, Cochin Port Trust and others, . In that case, a Division Bench of the Kerala High Court while discussing the structure of MPT Act, observed that by virtue of introduction of Chapter VA providing for constitution and incorporation of Tariff Authority for Major Ports under 47A of the MPT Act with incidental provisions, the power vested with the Board especially with regard to the right to prescribe the scales of rates for the services performed by the Board and also in respect of such other matters/conditions, came to be vested exclusively with the TAMP. This necessitated introduction of Section 29(3) whereby it is stipulated that notwithstanding anything contained in Section 29(1)(a) , the right to fix rates vested in the Board shall vest in the TAMP as from the date it is constituted under Section 47A(1) (i.e. 9th January, 1997). Prior to the Constitution of TAMP under Section 47A , the power to prescribe the scale of rates for the service performed by the Board or other persons and so also to stipulate the scales of rates and statement of conditions for use of the property belonging to the Port absolutely vested with the Board. After introduction of Chapter VA giving shape to TAMP, such power came to be transferred to TAMP and the power vested with the Board was taken away including the authority to prescribe fees for pilotage and certain other services like fixation of Port dues, consolidated rates for combination of services, Port dues on vessels in ballast, Port dues on vessels not discharging or taking in cargo, power to levy sensational rates in certain cases etc. as provided under various provisions in Chapter VI. The significant change made with regard to the power of the Board and the scope of power of the TAMP is the deletion of Section 52 from the statute which earlier stipulated the necessity for prior sanction of the Central Government to satisfy the rates and conditions.

On the point of locus standi of the writ petitioners to challenge terms of the tender, Mr. Bose relied on the following decisions:--

(a) Management of Karnataka State Road Transport Corporation Vs. KSRTC Staff and Workers'' Federation and Another, . At paragraph 9 of the said judgment the Hon''ble Supreme Court held that the point of locus standi not having been raised before the Ld. Single Judge or the Hon''ble Division Bench, the same cannot be allowed to be agitated before the Supreme Court. Relying on this decision, Mr. Bose submitted that at no stage of the proceeding the locus standi of the writ petitioners to maintain the writ petitions has been challenged by the Kolkata Port Trust and such a challenge should not be countenanced at the final stage.

(b) Bar Council of Maharashtra Vs. M.V. Dabholkar and Others, . In the said judgment at paragraphs 27, 28, 47, 48, 57 and 59 the Hon''ble Supreme Court observed as follows:--

"27. The words "person aggrieved" are found in several statutes. The meaning of the words "person aggrieved" will have to be ascertained with reference to the purpose and the provisions of the statute. Sometimes, it is said that the words "person aggrieved" correspond to the requirement of locus standi which arises in relation to judicial remedies.

Where a right of appeal to Courts against an administrative or judicial decision is created by statute, the right is invariably confined to a person aggrieved or a person who claims to be aggrieved. The meaning of the words "a person aggrieved" may vary according to the context of the statute. One of the meanings is that a person will be held to be aggrieved by a decision if that decision is materially adverse to him. Normally, one is required to establish that one has been ''denied or deprived of something to which one is legally entitled in order to make one "a person aggrieved". Again a person is aggrieved if a legal burden is imposed on him. The meaning of the words a "person aggrieved" is sometimes given a restricted meaning in certain statutes which provide remedies for the protection of private legal rights. The restricted meaning requires denial or deprivation of legal rights. A more liberal approach is required in the background of statutes which do not deal with property rights but deal with professional conduct and morality. The role of the Bar Council under the Advocates Act is comparable to the role of a guardian in professional ethics. The words "persons aggrieved" in Sections 37 and 38 of the Act are of wide import and should not be subjected to a restricted interpretation of possession or denial of legal rights or burdens or financial interests. The test is whether the words "person aggrieved" include "a person who has a genuine grievance because an order has been made which prejudicially affects his interests". It has therefore, to be found out whether the Bar Council has a grievance in respect of an order or decision affecting the professional conduct and etiquette.

The hackneyed phrase, ''person aggrieved is not merely of frequent occurrence in statutes and in the writ jurisdiction but has come up for judicial consideration in Anglo American and India courts in a variety of situations and legislative settings. Notwithstanding the slippery semantics of such legalese, the Indian legislative draftsmen have continued to use them, out of linguistic allegiance to the British art, and Indian Judges have frequently sought interpretative light from English authorities of ancient vintage. These ''borrowed'' drafting and interpretative exercises are sometimes inept when time and country change and the context and text of the statute vary. I stress this aspect since much of the time of the Courts in India is consumed by massive, and sometimes mechanical, reliance on exotic constructions and default in evolving legislative simplicity and avoiding interpretative complexity. At a time when our Courts are on trial for delayed disposals and mystifying processes, this desideratum becomes all the more urgent. Otherwise, why should decoding a single expression - ''person aggrieved'' - take two days of learned argument?

Even in England, so well-known a Parliamentary draftsman as Francis Bennion has recently pleaded in the Manchester Guardian against incomprehensible law forgetting ''that it is fundamentally important in a free society that the law should be readily ascertainable and reasonably clear, and that otherwise it is oppressive and deprives the citizen of one of his basic rights''. It is also needlessly expensive and wasteful. Reed Dickerson, the famous American Draftsman said: ''It cost the Government and the public many millions of dollars annually''. The Renton Committee, in England, has reported on drafting reform but it is unfortunate that India is unaware of this problem and in a post-Independence statute like the Advocates Act legislators should still get entangled in these drafting mystiques and judges forced to play a linguistic game when the country has an illiterate laity as consumers of law and the rule of law is basic to our constitutional order.

American jurisprudence has recognized, for instance, the expanding importance of consumer protection in the economic system and permitted consumer organizations to initiate or intervene in actions, although by the narrow rule of ''locus standi'', such a course could not have been justified (see p. 807-New York University Law Review, Vol. 46, 1971). In fact, citizen organizations have recently been Campaigning for using legal actions for protection of community interest, broadening the scope of ''standing'' in legal proceedings (see p. 403-Boston University Law Review, Vol. 51, 1971).

Although not strictly confined to ''standing'' with reference to suits jurists have thrown some light on this subject. Professor S.A. de Smith has observed:

"All developed legal systems have had to face the problem of adjusting conflicts between two aspects of the public interest-the desirability of encouraging individual citizens to participate actively in the enforcement of the law, and the undesirability of encouraging the professional litigant and the meddlesome interloper to invoke the jurisdiction of the courts in matters that do not concern him." (Quoted ill ''Standing Justifiability'' by V.S. Deshpande - Journal of the Indian Law Institute-April-June 1971 - Vol. 13, No. 2, p. 174)

Professor H.W.R. Wade has observed:

"In other words, certiorari is not confined by a narrow conception of locus standi. It contains an element of the actio popularis. This is because it looks beyond the personal rights of the applicant; it is designed to keep the machinery of justice in proper working order by presenting inferior tribunals and public authorities from abusing their powers." (Standing and Justiciability bid, p. 175).

The possible apprehension that widening legal standing with a public connotation may unloose a flood of litigation which may overwhelm the judges is misplaced because public resort to court to suppress public mischief is a tribute to the justice system. In this very case, to grant an exclusionary windfall on the respondents is to cripple the Bar Council in its search for justice and insistence on standards."

(c) Lakhi Ram Vs. State of Haryana and Others, . In the said case, the appellant before the Supreme Court had filed a writ petition challenging the action of the Government expunging the adverse remarks made in the Annual Confidential Report of the respondent No. 6. The High Court took the view that the appellant was not entitled to complain against the expungement of adverse remarks made in the confidential report of another officer. Accordingly, the High Court dismissed the writ petition holding that the appellant had no locus standi to maintain the same. The Hon''ble Supreme Court reversed the decision of the High Court holding that the effect of expungement of adverse remarks in the confidential report of the respondent No. 6 is to prejudice the chances of promotion of the appellant and if the appellant was able to show that the expungement of the remarks was illegal and invalid, the adverse remarks would continue to remain in the confidential report of the respondent No. 6 and that would improve the chances of promotion of the appellant viz-a-viz the respondent No. 6. The appellant was, therefore, entitled to show that the Government acted beyond the scope of its power in expunging the adverse remarks in the confidential report of the respondent No. 6 and that the expungement of the adverse remarks should be cancelled. The appellant had the locus standi to maintain the writ petition and the High Court was in error in rejecting it on the ground of lack of locus standi.

(d) Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, . At paragraph 9 of the judgment, the Hon''ble Supreme Court observed as follows:--

"9. That takes us to the next question whether the acceptance of the tender of the 4th respondent was invalid and liable to be set aside at the instance of the appellant. It was contended on behalf of respondents 1 and 4 that the appellant had no locus to maintain the writ petition since no tender was submitted by him and he was a mere stranger. The argument was that if the appellant did not enter the field of competition by submitting a tender, what did it matter to him whose tender was accepted; what grievance could he have if the tender of the 4th respondent was wrongly accepted. A person whose tender was rejected might very well complain that the tender of someone else was wrongly accepted, but it was submitted, how could a person who never tendered and who was at no time in the field, put forward such a complaint? This argument, in our opinion, is misconceived and cannot be sustained for a moment. The grievance of the appellant, it may be noted, was not that his tender was rejected as a result of improper acceptance of the tender of the 4th respondent, but that he was differentially treated and denied equality of opportunity with the 4th respondent in submitting a tender. His complaint was that if it were known that non-fulfillment of the condition of eligibility would be no bar to consideration of a tender, he also would have submitted a tender and competed for obtaining a contract. But he was precluded from submitting a tender and entering the field of consideration by reason of the condition of eligibility, while so far as the respondents 4 were concerned, their tender was entertained and accepted even though they did not satisfy the condition of eligibility and this resulted in inequality of treatment which was constitutionally impermissible. This was the grievance made by the appellant in the writ petition and there can be no doubt that if this grievance were well founded, the appellant would be entitled to maintain the writ petition. The question is whether this grievance was justified in law and the acceptance of the tender of the 4th respondent was vitiated by any legal infirmity."

(e) Mr. Bose then relied on the text book of Administrative Law authored by Wade & Forsyth, 11th ed. to substantiate the meaning of the phrase "the Rule of Law". According to the said learned authors, the rule of law has a number of meanings and corollaries. Its primary meaning is that everything must be done according to law applied to the powers of Government. This requires that every Government authority which does some act which would otherwise be a wrong or which infringes a man''s liberty must be able to justify its action as authorized by law. Every act of Governmental power, i.e. every act which affects the legal rights, duties or liberties of any person must be shown to have a strictly legal pedigree. The affected person may always resort to the courts of law and if the legal pedigree is not found to be perfectly in order the court will invalidate the Act, which he can then safely disregard.

This is the principle of legality. But the rule of law demands something more, since otherwise it would be satisfied by giving the government un-restricted discretionary powers so that everything that they did was within the law. The secondary meaning of the rule of law, therefore, is that Government should be conducted within a framework of recognized rules and principles which restrict discretionary power.

The third meaning of the rule of law, though it is a corollary of the first meaning is that the disputes as to the legality of acts of Government are to be decided by judges who are independent of the executives.

The fourth meaning is that the law should be even-handed between the government and citizen. Clearly the law cannot be the same for both, since every Government must necessarily have special powers. What the rule of law requires is that the Government should not enjoy unnecessary privileges or exemptions from the ordinary law. In principle, public authorities should be subject to normal legal duties and liabilities which are not inconsistent with other governmental functions.

Mr. Bose also relied on the same book on Administrative Law to elucidate the doctrine of ultra vires. The simple proposition that a public authority may not act outside its powers (ultra vires) might be called the central principle of administrative law. The juristic basis of judicial review is the doctrine of ultra vires. To a large extent the courts have developed the subject by extending and refining this principle which has many ramifications and which in some of its aspects attains a high degree of artificiality.

It is essential to invalidate any act of malpractice and, therefore, a court will hold an order/act to be ultra vires if a public authority has acted in bad faith or unreasonably or on no proper evidence. Results such as these are attained by the art of statutory construction. It is presumed that Parliament did not intend to authorize abuses and that certain safeguards against abuse must be implied in the Act.

Any administrative act or order which is ultra vires or outside jurisdiction is void in law, that is devoid of legal effect. If it is not within the powers given by the Act, it has no legal leg to stand on. The situation is then as if nothing had happened. And the unlawful act or decision may be replaced by a lawful one.

Mr. Bose then relied on a decision of the Hon''ble Supreme Court in the case of City Industrial Development vs. Platinum Entertainment (supra) in support of his submission that judicial review of government decisions is permissible even in the contractual field. A notice inviting tender is also in the realm of contract and, as such, the terms of such a tender are amenable to judicial review.

Mr. Bose then referred to a decision of this court in the case of KEC International Ltd. (supra) which has been discussed above.

Mr. Bose then referred to Section 21 of the MPT Act which provides, inter alia, that the Board may, with the approval of the Central Government, specify the powers and duties conferred or imposed upon the Board by or under the Act, which may also be exercised or performed by the chairman. He submitted that in the instant case, there was no approval of the Central Government that the Board may authorize the chairman to take a decision. In this connection, he relied on a decision of this court in the case of Calcutta Shipping Bureau and Others Vs. Calcutta Port Trust and Others, . In that case, it was observed that statutory requirements are to be observed strictly, more so, whenever exercise of power would involve financial implication or penal consequences. In the absence of a specific power under the statute there cannot be any sub-delegation of power.

Mr. Bose also relied on a decision of this court in the case of Nand Kishor Sonkar Vs. Howrah Municipal Corporation and Others, . In the said case, a Division Bench of this court observed that a statutory authority must act strictly in accordance with the powers conferred on it by the statute and it cannot travel beyond the four corners of the statute.

Mr. Bose then referred to Jowitt''s Dictionary in English Law, 2nd Ed. In the said dictionary the term ''Royalty'' is defined as a payment reserved by the grantor of a patent, lease of a mine or similar right and payable proportionately to the use made of the right by the grantee. It is usually a payment of money but may be a payment in kind i.e. of part of the produce of the exercise of the right. Mr. Bose submitted that in essence royalty is a fee charged. Such royalty cannot be charged by KPT in addition to the licence fee already charged. It would have been a different case if a tax had been imposed but for that authority of law is required which is not there.

Mr. Bose relied on a decision of the Supreme Court in the case of District Council of the Jowai Autonomous Distt., Jowai and Others Vs. Dwet Singh Rymbai etc., in support of his contention that the KPT is entitled to and has imposed fees in the amount fixed by TAMP. However, KPT has no authority to levy royalty which is in the nature of tax. In that case it was argued on behalf of the appellant District Council that since the private forests were also under the management and control of the District Council under the provisions of the law enforced in that area, it was open to it to levy a royalty on the timber originating from such forests although it may be in the nature of a tax. The High Court held that the District Council had no constitutional authority to impose either royalty or tax or fee on private forests and as such struck down the impugned notification issued under the concerned statute as ultra vires. The Hon''ble Supreme Court upheld the High Court''s order holding that what was sought to be recovered was not royalty but a compulsory exaction of money by a public authority for public purposes enforceable by law and was not a payment for services rendered. It was truly in the nature of a tax, on various produce grown on private lands. The District Council had no power to levy such a tax.

Mr. Bose then relied on a decision of the Hon''ble Supreme Court in the case of Ahmedabad Urban Development Authority Vs. Sharadkumar Jayantikumar Pasawalla and others, in support of his contention that a delegated authority cannot impose tax or fee. In that case, the Hon''ble Supreme Court held that in a fiscal matter it will not be proper to hold that in the absence of express provision, a delegated authority can impose tax or fee. Such power of imposition of tax and/or fee by delegated authority must be very specific and there is no scope of implied authority for imposition of such tax or fee. The delegated authority must act strictly within the parameters of the authority delegated to it under the Act and it will not be proper to bring the theory of implied intent or the concept of incidental and ancillary power in the matter of exercise of fiscal power.

Finally, Mr. Bose relied on two decisions in support of his submission that the Court can always mould the relief it grants as the facts and circumstances of a case may warrant. In the case of B.R. Ramabhadriah Vs. Secretary, Food and Agriculture Department, Andhra Pradesh and others, , the Hon''ble Apex Court observed that in an action where a party has prayed for a larger relief, it is always open to the court to grant him any smaller relief that he may be found to be entitled in law and, thereby rendering substantial justice. The court can undoubtedly take note of changed circumstances and suitably mould the reliefs to be granted to the party concerned in order to mete out justice in the case. As far as possible the anxiety and endeavour of the court should be to remedy an injustice when it is brought to its notice rather that denying relief to an aggrieved party on purely technical and narrow procedural grounds. In the case of M. Sudakar Vs. V. Manoharan and Others--> , the Hon''ble Supreme Court observed that power to mould relief is always available to the court possessed with the power to issue high prerogative writs. In order to do complete justice it can mould the relief upon the facts and circumstances of the case. In the facts of a given case, a writ petitioner may not be entitled to the specific relief claimed by him but this itself will not preclude the writ court to grant such other relief which he is otherwise entitled to.

Mr. Bose summed up his submission in the following manner. Firstly, he submitted that the entire NIT should be struck down. Secondly, and in the alternative, the Clauses imposing royalty and a ceiling on the amount that an agent can charge from his principal as also the clause debarring an agent from operating unless he participates in the tender process should be quashed.

Re: WP 22510 (W) of 2014:--

Ld. Counsel appearing for the petitioner adopted the submissions made by Mr. Aninda Mitra, Ld. Senior Counsel, Mr. Pradip Ghosh, Ld. Senior Counsel and Mr. Tilok Bose, Ld. Sr. Counsel in the other three writ petitions.

Contention of KPT:--

The Calcutta Port Trust is a reverie Port that has two areas under its control, the first of which is one of the oldest ports in the country, namely, the Kolkata Dock System, adjoining the city itself and the other developed much later called the Haldia Dock Complex. Each of these locations has vast lands and docks and a massive variety of works and things that appertain thereto including portions of seas, all of which together form the port premises.

The whole of the port premises is private property. Admission to port premises is always restricted. This is so, not only because of security reasons, but also since the port premises and all the connected waters, assets and landed properties belong to the Central Government and are vested in the Board of Trustees for the Port of Calcutta under the provisions of Major Port Trusts Act, 1963.

When goods are either imported to or exported from India, various types of service are required to be rendered at the Kolkata Port or the Haldia Dock Complex. Such services are compendiously called ''shore handling functions''. Section 42(1) of the MPT Act provides that the Board shall have the power to undertake the services enumerated in the sub-sections, including the works of ''landing, removing, shifting, transporting, storing or delivering and despatching goods''.

Ever since its establishment, the KPT has never directly provided shore handling services at Haldia. Private parties like the petitioners were permitted to do shore handling functions at the Haldia docks. There are more than hundred private parties who are permitted to perform shore handling services at Haldia.

In giving a license to such private parties to do such works at the HDC, the KPT so long, followed an ad hoc approach and no particular set of regulations were prescribed. KPT never levied or claimed any compensation nor recovered any royalty for granting the license. Thus, it allowed practically all and sundry to do the highly lucrative shore handling business at the HDC almost free of cost, its only recovery being a sum of Rs. 5400/- per annum as license fee.

The licenses are of two types. One is the ''clearing and forwarding license''. The other is bears a label ''handling agent license''.

In the case of the petitioner in WP 22511 (W) of 2014, namely Ripley & Co. Stevedoring Pvt. Ltd., two licenses have been relied upon both of which have been issued not in the name of the petitioner-company. There is nothing to explain this manifest anomaly. No petition has been filed against the NIT by Ripley & Co. Stevedoring & Handling Pvt. Ltd., in whose name the licenses were issued.

From the records available it appears at a meeting held on 12th October, 2012, the Board of Trustees of KPT decided to levy and recover royalty from the parties rendering shore handling services at the HDC and a committee of KPT officials was constituted in order to examine the matter and submit a report to the Board. After receiving report of the Committee, the trustees at a further meeting held on 13th December, 2012, resolved to forward a proposal to the Central Government to obtain its approval to recover royalty from the shore handling service providers in respect of handling of dry bulk cargo at the HDC.

In the foregoing background, a proposal was sent to the Ministry of Shipping on 24th December, 2012 seeking the Central Government''s permission to levy royalty/user fees on all cargo handling agents at the HDC. This proposal was approved by the Central Government which, by a letter dated 13th June, 2013 permitted the KPT to formulate a scheme for connection of royalty, user fee from cargo handlers at HDC. By the said letter, permission was expressly granted to the KPT to, inter alia, ''............... operationalize its scheme with the approval of the Board expeditiously.''

Following the permission received from the Central Government, the committee comprising the KPT officials submitted a draft bid document to the Board on 8th October, 2013. The committee also recommended implementation of royalty rates specifically in respect of the handling of dry bulk cargo to begin with, and suggested that the scheme may be extended to other kind of cargoes at HDC.

The Central Government by its letter dated 8th July, 2014, once again directed the Chairman, KPT to comply with the Ministry''s letter dated 13th June, 2013 within two weeks.

On 18th July, 2014, the Board of the KPT held a meeting. At the meeting, some of the attending trustees who are not officials of KPT, expressed apprehensions that the scheme for levy of royalty was likely to face legal challenge and they agreed that the Chairman should take an appropriate decision in the matter. The matter was thus left to the discretion of the Chairman to take the decision as to how the KPT would proceed. The record of this meeting would evidence that after some further deliberations, the Chairman, keeping in mind the directives of the Ministry of Shipping dated 8th July, 2014, give instructions for issuance of the tender containing the scheme before the Board with the further direction that any legal issues would be handled by designated officials of KPT.

At the following meeting of the Board of the KPT held on 5th September, 2014, the passing of the resolution dated 18th July, 2014 was ratified.

A lot of hue and cry has been raised on behalf of the petitioners that the decision taken by the Chairman at the meeting dated 18th July, 2014 was not a decision of the Board and the Chairman had no power to take a decision contrary to and overriding the majority decision. However, these arguments are redundant because the record manifests that the decision was that of the Board which resolved to empower the Chairman to guide them and the Chairman following the instructions of the Ministry advised that the scheme should be implemented. From a proper reading of the minutes of the meeting held on 18th July, 2014, it is evident that the resolution taken on that date was a collective resolution following an internally chosen mutually acceptable procedure resolved upon by all present. The petitioners referred to Section 16(3) of the MPT Act and argued that there was infraction of that Section because the decision was not by a majority. However, the records show that as early as on 12th October, 2012, the Board had resolved to levy royalty. That decision was never superseded or recalled in any manner. On the contrary, ever since then everything possible was done to implement that decision. Finally, the resolution was ratified on 5th September, 2014.

Locus standi:--The NIT was published by the KPT asking the concerned parties, i.e. the shore handling agents, the rate at which they would be prepared to pay royalty in consideration of the grant of license to them and, therefore, this was merely a mechanism adopted for ascertainment of a rate of royalty. In publishing the NIT the KPT followed the express directions of the Central Government. Under Section 111 of the MPT Act, the Central Government is empowered to issue directions to the Board. The Section provides that ''the Board shall in the exercise of its function under this Act be bound by such directions on questions of policies as the Central Government may give in writing from time to time.'' Section 111 confers a power of superintendence on the Central Government. Such power implies administrative control, enabling the Central Government to give instructions to the Board to decide its administrative duties and functions in the manner indicted in the order.

It is settled principle that where the subordinate (in this case the Board) is subject to power of superintendence of the superior (in this case the Central Government) in the matter of discharging its administrative and executive functions, the obligations and duties, the power of superintendence entitles the superior to give instructions, guidance and directions to perform the duty in a certain manner. These settled principles were followed by KPT by the publication of the NIT which called for bids from the service providers as to the rate of royalty they world be prepared to pay and no more than that. The NIT offered no particular piece of work. It did not call for the making of any contract. The NIT left it open to the bidders to later resale from their bids or quotations in the matter of rate of royalty and refrain from taking up any shore handling works, if so advised.

In such a fluid set of circumstances, no agreement, far less, a contract was to immediately emerge following the NIT; quite obviously further decisions would be required to be taken by KPT as well as by the service providers, if any binding and enforceable contract was to emerge in the future. By its terms, the NIT on its very face, was merely an inchoate, almost rudimentary mode of enquiry to find out a rate of royalty without having any element of conclusiveness or finality whatsoever and was not per se, by its provisions, affecting the legal right of anybody, far less, that of the petitioners.

Moreover, neither Ripley, nor Lee and Murihead nor JM Bakshi put in any bid at all. Hence, it is not even arguable on the part of these three petitioners that any right of theirs was or could be affected by the publication of the NIT.

As regards AM Enterprises, this petitioner chose to put in a bid in response to the NIT. The bid was unconditional and without any reservation. The firm subsequently agreed to follow the NIT process and, thereafter, applied for and obtained a shore handling license following the new policy. Hence, there is no question of this party of having any cause of action to pursue its writ petition and it should fail at the threshold.

As for the other three writ petitioners, for the reasons stated above, they never had nor have any cause of action to press against KPT and their purported claims should fail because they are not parties who are aggrieved or entitled to file a petition. They do not have any locus standi and their petitions should be rejected on the ground of maintainability.

On the point of locus standi the following decision are relied upon:--

(a) Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed and Others, . Reliance was placed on paragraphs 12, 13, 34 to 37 of the judgment which are set out hereunder:--

"12. According to most English decisions, in order to have the locus standi to invoke certiorari jurisdiction, the petitioner should be an "aggrieved person" and, in a case of defect of jurisdiction, such a petitioner will be entitled to a writ of certiorari as a matter of course, but if he does not fulfill that character, and is a "stranger", the Court will, in its discretion, deny him this extraordinary remedy, save in very special circumstances.

This takes us to the further question: Who is an "aggrieved person" and what are the qualifications requisite for such a status? The expression "aggrieved person" denotes an elastic, and, to an extent, an elusive concept. It cannot be confined within the bounds of rigid, exact and comprehensive definition. At best, its features can be described in a broad, tentative manner. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner''s interest, and the nature and extent of the prejudice or injury suffered by him. English Courts have sometimes put a restricted and sometimes a wide construction on the expression "aggrieved person". However, some general tests have been devised to ascertain whether an applicant is eligible for this category so as to have the necessary locus standi or ''standing'' to invoke certiorari jurisdiction.

This Court has laid down in a number of decisions that in order to have the locus standi to invoke the extraordinary jurisdiction under Article 226 , an applicant should ordinarily be one who has a personal or individual right in the subject matter of the application, though in the case of some of the writs like habeas corpus or quo warranto this rule is relaxed or modified. In other words, as a general rule, infringement of some legal right or prejudice to some legal interest in hearing the petitioner is necessary to give him a locus standi in the matter.

The expression "ordinarily" indicates that this is not a cast-iron rule. It is flexible enough to take in those cases where the applicant has been prejudicially affected by an act or omission of an authority, even though he has no proprietary or even a fiduciary interest in the subject-matter. That apart, in exceptional cases even a stranger or a person who was not a party to the proceedings before the authority, but has a substantial and genuine interest in the subject matter of the proceedings will be covered by this rule. The principles enunciated in the English cases noticed above, are not inconsistent with it.

In the United States of America, also, the law on the point is substantially the same.

No matter how seriously infringement of the Constitution may be called into question, said Justice Frankfurter in Coleman v. Miller, this is not the tribunal for its challenge except by those who have some specialized interest of their own to vindicate apart from a political concern which belongs to all". To have a "standing to sue", which means locus standi to ask for relief in a court independently of a statutory remedy, the plaintiff must show that he is injured, that is, subjected to or threatened with a legal wrong. Courts can intervene only where legal rights are invaded. "Legal wrong" requires a judicially enforceable right and the touch stone to justifiability is injury to a legally protected right. A nominal or a highly speculative adverse effect on the interest or right of a person has been held to be insufficient to give him the "standing to sue" for judicial review of administrative action. Again the "adverse effect" requisite for "standing to sue" must be an "illegal effect''''. Thus, in the under mentioned cases, it was held that injury resulting from lawful competition, not being a legal wrong, cannot furnish a "standing to sue" for judicial relief.

It will be seen that in the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories: (i) ''person aggrieved''; (ii) ''stranger''; (iii) busybody or meddlesome interloper. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect. They indulge in the pastime of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category, may be no more than spoking the wheels of administration. The High Court should do well to reject the applications of such busybodies at the threshold."

(b) Ravi Yashwant Bhoir Vs. District Collector, Raigad and Others, . In that case, the Hon''ble Supreme Court observed that a person who suffers from legal injury can only challenge the act or omission that causes such injury. The complainant has to establish that he has been deprived of or denied of a legal right and he has sustained injury to any legally protected interest. In case he has no legal peg for a justifiable claim to hang on, he cannot be heard as a party in a lis. There must be injuria or a legal grievance and not a stat pro ratione voluntas reasons i.e. a claim devoid of reasons. Under the garb of being a necessary party a person cannot be permitted to make a case as that of general public interest. A person having a remote interest cannot be permitted to become a party in the lis, as the person who wants to become a party in a case, has to establish that he has a proprietary right which has been or is threatened to be violated for the reasons that a legal injury creates a remedial right in the injured person. A person cannot be heard as a party unless he answers the description of aggrieved party.

Mr. Kapoor also relied on a decision of the Apex Court in the case of Union of India (UOI) and Another Vs. Association of Unified Telecom Service Providers of India and Others, . In that case, the Hon''ble Supreme Court observed that a bare perusal of the Telegraph Act shows that the Central Government has the exclusive privilege of establishing, maintaining and working telegraphs. This would mean that only the Central Government and no other person has the right to carry on the tele communication activities. The proviso to Section 4(1) of the Telegraph Act enables the Central Government to part with this exclusive privilege in favour of any other person by granting license in his favour on such conditions and in consideration of such payments as it thinks fit. As the Central Government owns the exclusive privilege of carrying out tele-communication activities and as the Central Government alone has the right to part with this privilege in favour of any person by granting a license in his favour on such conditions and in consideration of such terms as it thinks fit, a license granted under the Telegraph Act is in the nature of a contract between the Central Government and the licensee. Mr. Kapoor also relied on a decision of the Hon''ble Supreme Court in the case of Har Shankar and Others Vs. The Dy. Excise and Taxation Commr. and Others, wherein the Hon''ble Supreme Court observed that citizens cannot have any fundamental right to trade or carry on business in the properties or rights belonging to the Government nor there can be any infringement of Article 14 if the Government tries to get the best available price for its valuable rights. Relying on the aforesaid two decisions Mr. Kapoor submitted that the KPT has the exclusive rights to carry on activities inside the Port premises and the KPT alone can grant license to third parties to carry on such activities. For granting such license the KPT is entitled to try and obtain the best possible price.

Royalty:--Mr. Kapoor submitted that the Constitution does not say that the right to carry on shore handling business is a fundamental right. The Constitution also does not say that any trade, vocation or business can be unregulated. There is also no statute that vests the right to carry on shore handling business in the petitioners or any other juristic entity. On the contrary, Section 42(1) of the MPT Act makes it clear that the right or privilege to carry on shore handling services on any part of the port premises including the Haldia Docks is exclusively vested in the Board. It is the Board, which under the MPT Act, has the exclusive right to do the shore handling works at the Haldia Docks. Further, Section 42(3) of the Act exclusively enables the Board to part with the right of rendering shore handling works in favour of any other person by making an agreement on such terms and conditions as may be agreed upon. Such an agreement may be in the form of a license or any other consensual arrangement that the KPT may choose to settle upon. It must follow that incidental or ancillary to its power to make agreements as envisaged by Section 42(3) of the MPT Act, the Board can also charge for parting with the privilege in favour of anybody else.

Mr. Kapoor also submitted that it is settled law that where rights belong to the State as they do in this case, it is open to the authority dealing with such proprietary right to part with them for a consideration. There is nothing in the MPT Act and there is no principle of law that bars the Board from charging for granting shore handling license for a consideration and the fact that it had not previously done so is no argument to deny its rights at all. As a statutory authority KPT has not only the right but actually the duty to get the best available price for the valuable rights that it may license out to the service providers.

Mr. Kapoor submitted that in the instant case, the KPT has decided to charge a price for parting with its shore handling rights. In fixing the price it has followed a fare, open and transparent process. That price, which it has chosen to call royalty in this case, is of the essence in the matter. That price or consideration constitutes the remuneration which it is entitled in law to claim from service providers for licensing them to do the work. The right to levy such a charge in the form of royalty is like a normal incident of any business transaction and the arguments that have been advanced that the KPT has no right to charge royalty are specious and do not have any substance whatsoever.

Mr. Kapoor relied on the following dicta of Chandrachud, J. speaking for the Supreme Court in the case of Har Shankar (supra);

"the argument that the Government cannot by contract do what it cannot do under a Statute must fail. No Statute forbids the Government from trading in its own right or privilege and the Statute under consideration, far from doing so, expressly empowers it (by Sections 42(1) and 42(3) to grant leases of its right and to issue the requisite licenses, permits or passes on payment of such fees (as may be agreed upon)."

On a bare perusal of Sections 42(1) and 42(3) of the MPT Act, it is unquestionable that the Board is vested with the power to recover amounts for parting with the privilege of doing shore handling works and there can be no challenge if it has decided to do so on payment of royalty. Once it is appreciated that the NIT was only a mode or medium for ascertaining the best price obtainable for the grant of privilege of shore handling works, it would follow that the petitioners can have no just grievance with regard to the rate of royalty.

Mr. Kapoor then relied on the decision of the Hon''ble Supreme Court in the case of Government of Andhra Pradesh Vs. Anabeshahi Wine and Distilleries Pvt. Ltd., . In that case, the Hon''ble Supreme Court observed that from a perusal of the Andhra Pradesh Excise Act, 1968 and the Andhra Pradesh Distillery Rules, 1970 it was evident that it was open to the applicant to grant the exclusive privilege of manufacturing and selling wine etc. to the respondent provided it was, apart from making any other payment also willing to pay the salaries and allowances referred to in the aforesaid provisions and which for the sake of convenience have been described as establishment charges and which were sought to be recovered as such under the impugned notice of demand. The respondent company was not under any obligation to take the license. It was open to it to have refrained from taking any license under the Act and the Rules if it was not willing to pay the price as required to by the Government for the grant of privilege to manufacture and sell intoxicants. The nature of payment which a licensee such as the respondent is required to make to the State by reason of the State parting with the privilege in regard to manufacture, sale etc. of intoxicants are neither in the nature of tax nor excise duty, but constituted the price or consideration which the Government charges to the licensees for parting with its privileges and granting them to the licensees.

Referring to the decisions of the Hon''ble Supreme Court in the cases of Anabeshahi (supra) & Har Shankar (supra), Mr. Kapoor submitted that in both the two cases the questions related to wines and other allied products. The Supreme Court observed that the right to carry on business in manufacturing and selling of wine etc. was not vested in the members of the public but constitute the exclusive privilege of the State. The Supreme Court further held that it was open to the State to grant the exclusive privilege of manufacturing and selling wines by imposing appropriate terms and conditions and in particular terms governing the compensation or the price or the consideration to which the State would be entitled for parting with its privileges and granting them to the applicants. There is no fundamental right which can be claimed in such circumstances and it is for the State to license the exclusive privilege, in this case the privilege of shore handling, on such terms as it could settle upon.

Mr. Kapoor then referred to the argument made on behalf of the petitioners that the existing licenses of the petitioners are operative and they are entitled till the terms of such continuing licenses to continue with their respective business of shore handling at least until the period mentioned in such licenses have expired. He submitted that the licenses granted to the petitioners were practically in the nature of bare or gratuitous license. Such gratuitous licences are granted purely as a matter of personal privilege and are not coupled with any grant or interest and are revocable at the will and pleasure of the licensor. The licenses ex facie were permissive by nature and conferred no right or entitlement of any kind and are entirely dependent upon the sanction or permission of the KPT.

Mr. Kapoor submitted that in the instant case, full and fair notice was given by the Board that it proposed to discontinue the practice of permitting licensees to carry on shore handling business at the Haldia Docks unless the Board was specifically remunerated in the shape of royalty. This change in direction was by its very nature a change of policy and a course intended to be adopted in the public interest. In this connection Mr. Kapoor referred to the decision of the Hon''ble Supreme Court in the case of Shimnit Utsch India Pvt. Ltd. and Another Vs. West Bengal Transport Infrastructure Development Corporation Ltd. and Others, and also to the decision of the Hon''ble Supreme Court in the case of APM Terminals B.V. Vs. Union of India (UOI) and Another, in support of his contention that it is open to the State to decide upon a change in its policy especially when national priorities and national policies call for such change. While taking a policy decision to amend or alter a particular course of action, the Government is not required to hear the persons who have enjoyed benefits from it. Government policy can be changed with changing circumstances and only on the ground of changing such policy will not be vitiated. The Government has a discretion to adopt a different policy or alter or change its policy calculated to serve public interest and make it more effective.

Mr. Kapoor relied on the decision of the Hon''ble Supreme Court in the case of Tata Cellular Vs. Union of India, , wherein at para 94 of the judgment the Hon''ble Supreme Court observed that the terms of an invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. The Hon''ble Supreme Court also observed that the Government must have freedom of contract. In this connection Mr. Kapoor also relied on a decision of the Hon''ble Supreme Court in the case of Meerut Development Authority Vs. Association of Management Studies and Another, , wherein at paragraph 27 of the judgment the Hon''ble Supreme Court observed that the bidders participating in the tender process have no other right except the right to equality and fair treatment in the matter of evaluation of competitive bids offered by interested persons in response to notice inviting tender in a transparent manner and free from hidden agenda. One cannot challenge the terms and conditions of the tender except on the above stated ground. The reason being the terms of the invitation to the tender are in the realm of contract.

Reliance was then placed on the decision of the Hon''ble Supreme Court in the case of Puravankara Projects Ltd. Vs. Hotel Venus International and Others, wherein the Hon''ble Supreme Court observed that in essence tender terms are contractual and it is the privilege of the Government which invites tenders and courts do not have the jurisdiction to judge as to how the tender terms would have to be framed.

Mr. Kapoor then relied on a decision of the Hon''ble Supreme Court in the case of Siemens Aktiengeselischaft and S. Ltd. Vs. DMRC Ltd. and Others, , wherein at paragraphs 18 and 20 of the judgment the Hon''ble Supreme Court observed as follows:--

"18. Principles governing judicial review of administrative decisions are now fairly well-settled by a long line of decisions rendered by this Court, since the decision of this Court in Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, which is one of the earliest cases in which this Court judicially reviewed the process of allotment of contracts by an instrumentality of the State and declared that such process was amenable to judicial review. Several subsequent decisions followed and applied the law to varied situations but among the latter decisions one that reviewed the law on the subject comprehensively was delivered by this Court in Tata Cellular''s case (supra) where this Court once again reiterated that judicial review would apply even to exercise of contractual powers by the Government and Government instrumentalities in order to prevent arbitrariness or favoritism. Having said that this Court noted the inherent limitations in the exercise of that power and declared that the State was free to protect its interest as the guardian of its finances. This Court held that there could be no infringement of Article 14 if the Government tried to get the best person or the best quotation for the right to choose cannot be considered to be an arbitrary power unless the power is exercised for any collateral purpose. The scope of judicial review, observed this Court, was confined to the following three distinct aspects:

(i) Whether there was any illegality in the decision which would imply whether the decision making authority has understood correctly the law that regulates his decision making power and whether it has given effect to it;

(ii) Whether there was any irrationality in the decision taken by the authority implying thereby whether the decision is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at the same; and

(iii) Whether there was any procedural impropriety committed by the decision making authority while arriving at the decision.

In M.P. Oil Extraction and Another Vs. State of M.P. and Others, , this Court held that if an objective and rational foundation for the fixation of royalty is disclosed, the Court will not interfere with the exercise of governmental decision by undertaking an exercise to determine whether or not a better fixation was possible in the circumstances. This Court struck a note of caution that in economic and policy matters the scope of judicial review was limited."

Relying on the aforesaid decisions Mr. Kapoor submitted that the rational basis for imposing royalty has been disclosed. The rate has been sought to be fixed by open tender. Hence, the same does not warrant any interference.

He submitted that in this case the reasons impelling the State to change course are all on record. Firstly, there was a pressing need to generate revenue and such a need can motivate the State and obviously serves the public interest. Secondly, there was rampant abuse resulting from the existing tax system which practically permitted the group of service providers to levy extortionate rates. In this background, clearly the change of policy was permissible. Moreover, the change of policy was reasonable and free from arbitrariness, irrationality, bias and malice. There is no material to infer breach of any of such principles or to conclude that the actions of the Board were mala fide in any way.

Ceiling:--Mr. Kapoor then referred to the arguments of the petitioners that the Board had no right to prescribe a ceiling limit in the matter of charges that could be levied by the service providers on their principals. He submitted that this argument is completely fallacious.

He submitted that the Board has the jurisdiction to frame conditions for shore handling services. Section 42(4) of the MPT Act mandates that neither the Board nor any person authorized under Section 42(3) is entitled to charge beyond the notified limits. In the present case, by Clause 14.0 of the NIT it was laid down that for rendering shore handling services at the Haldia Docks, the service providers would be entitled to receive payment from their customers within the ceiling rates mentioned in the Clause 14.1. There is no dispute that the rates mentioned in the Clause 14.1 of the NIT were in consonance with the limits prescribed by scale of rates for the year 2011 as well as the year 2014. It is nobody''s case that these scales of rates are unsatisfactory or inadequate or arbitrary or capricious or could be said to be invalid for any other reason. The KPT by fixing the ceiling rate was prescribing a ceiling within permissible limits notified by the Tariff Authority. If the Board imposes a condition that the service providers must follow the law, that is hardly a ground for assailing the condition in the discretionary writ jurisdiction.

Finally, Mr. Kapoor reiterated that given the nature of the tender, it is not assailable in writ jurisdiction. Referring to the cases of Tata Cellular (supra), Puravankara (supra) & Meerut Development (Supra), he submitted that the terms of a tender are not open to judicial scrutiny because invitation to tender is in the realm of contract and all that the concerned parties can ask for his equal opportunity.

While winding up his submission Mr. Kapoor submitted that KPT is in the position of a sovereign. It is the owner of the entire port infrastructure. It can charge for use of its infrastructure by other parties. The royalty that is proposed to be imposed is merely a recompense for facility granted by KPT to the service providers for operating on KPT property. Any service provider desirous of acting as shore handling agent must abide by the terms and conditions imposed by KPT.

Reply of the Petitioners:--

In reply to KPT''s argument that levy of royalty and other charges are all matters of policy, the petitioners have submitted that the argument is fallacious. It is exercise of statutory powers under the MPT Act. KPT has not been empowered by the incorporating statute to levy royalty and other charges not covered by the Scale of Rates fixed by TAMP. Rather, this is a policy matter of TAMP. Levy of Scale of Rates and other charges is to be determined and prescribed by TAMP by exercise of statutory power to be notified in the Official Gazette. The 2014 Scale of Rates has been notified in the Official Gazette. Previously, the Board of Trustees, had the power to fix royalty and other charges with the approval of the Central Government. This power of KPT has been abrogated by incorporation of Section 47(A) and modification of Section 48 of the MPT Act by its amendment in January, 1997. In the previous Section 48 , the word ''Board'' has been deleted and replaced by the word ''Authority''.

The argument of KPT that levy of Scale of Rates is necessary to make up for their financial deficit after abandonment of two berths by Haldia Bulk Terminal Ltd. is not supported in the affidavit and is contrary to records. In any event, the licenses under the tender will not confer any exclusive use of berths at the Haldia Dock Complex, which privilege had been given to Haldia Bulk Tribunal. Further, the Scale of Rates for license fees for handling agents and also clearing and forwarding agent have been fixed by TAMP upon considering the deficit position depicted by costs estimate for a period of two years i.e. 2014-15 and 2015-16. TAMP has accorded approval for an across the board increase of 20 per cent in the cargo related charges.

In reply to the argument that KPT is the king, a sovereign and, therefore, empowered to lay down any rules within the port premises, the petitioners have submitted that the king is not a king by birth. KPT is a creature of statute and the so-called king will always be governed by the statute and all its powers will be circumscribed by the MPT Act.

Furthermore, under Section 42(1)(b) of the MPT Act, KPT has been empowered to undertake the services of receiving, removing, shifting and transporting goods brought within the port premises. KPT being unable to undertake such service on its own, has registered private operators to Act as Handling Agents since the inception of the Haldia Dock Complex. KPT has not made any investment at Haldia Dock Complex for rendering handing agency services. The MPT Act nowhere provides that the services mentioned in Section 42(1)(b) are to be undertaken by KPT alone and nobody else.

In the present case, KPT is not appointing an agent to act on its behalf. The licenses it grants is like a municipal trade license by which a trader is permitted to carry on business as a private enterprise on such terms as the trader fixes with its customers. KPT is not seeking to render service to the importer/exporter through the licensees. The licensees are entering into principal to principal contracts with the importer/exporter on their own and not as agents of KPT.

KPT argued that the NIT does not affect the right of the petitioners to carry on business and the NIT is merely a price discovery mechanism by which KPT seeks to ascertain the highest rate of royalty that can be charged from the shore handling agents rendering shore handling services and this does not affect any right of the shore handling agents in present. Hence, the writ petitions are pre-mature.

In reply, the petitioners submitted that this argument is misconceived. In terms of Clause 17.12 of the NIT even existing license holders who do not undertake to pay royalty to KPT can be debarred from carrying on business. This is an expropriatory clause and cannot be described as ''price discovery mechanism''. The net position is that bidders have to submit an undertaking to pay royalty to KPT as otherwise they would be debarred from undertaking shore handling of dry bulk cargo at the Haldia Dock Complex.

Court''s View:--

On a proper analysis of the arguments advanced on behalf of the respective parties, in my opinion, three issues arise for determination which are as follows:--(i) Whether the writ petitioners have locus standi to maintain the writ petitions? Whether the writ petitions are pre-mature? (ii) Whether the KPT can legitimately demand royalty from the shore handling agents and make payment of such royalty a pre-condition for a shore handling agent being permitted to carry on business of rendering shore handling services within the port premises? (iii) Whether the KPT has the power or competence to impose a ceiling on the rates that the shore handling agents can charge from their principals?

Issue No. (i) Whether the writ petitioners have locus standi to maintain the writ petitions? Whether the writ petitions are premature?:--

The term ''locus standi'' literally means ''standing to sue''. It denotes the existence of the right of an individual or group of individuals to approach a Court for adjudication of an issue. The courts have always required that a litigant should have standing to challenge the action sought to be adjudicated in the proceedings. The law governing locus standi has changed very rapidly over the last three/four decades. Standing barriers have been lowered in recent years. Restricted concept of standing that used to prevail has given way to an ever/broadening concept of locus standi.

All developed legal systems have had to face the problem of resolving the conflict between two aspects of the public interest - the desirability of encouraging individual citizens to participate actively in the enforcement of the law, and the undesirability of encouraging the professional litigant and the meddlesome interloper invoking the jurisdiction of the courts in matters in which he is not concerned. The conflict has been resolved by developing principles which determine who is entitled to bring proceedings, i.e., who has locus standi or standing to initiate proceedings.

A number of arguments are traditionally advanced for not allowing totally unrestricted access to the court to any member of the public for the purpose of challenging an administrative action of which he does not approve. In de Smith, Woolf & Jowell''s ''Principles of Judicial Review'' 99th Ed., six such arguments are noted:

(i) It would be unwise to assume that the effect of the doctrine of precedent and the power of the courts to award costs, even on a liberal basis will sufficiently deter unmeritorious challenges. (ii) The court''s resources should not be dissipated by the need to provide a forum for frivolous proceedings; (iii) The proper function of central and local government and other public bodies should not be disrupted unnecessarily to the disadvantage of other members of the public by having to contest proceedings; (iv) There is something to be said for the courts as a matter of prudence reserving their power to interfere with the workings of public bodies to those occasions when there is an application before them by someone who has been adversely affected by the unlawful conduct complained of; (v) Particularly in relation to administrative action which can affect sections of the public, it is important that the proceedings should be brought by a person who, because he is sufficiently interested in the outcome of the proceedings or otherwise, is in a position to ensure that full argument in favour of the remedy which is sought is deployed before the court; (vi) It is important that the courts confine themselves to their correct constitutional role, and do not become involved in determining issues which are not justiciable by giving unlimited access to the courts.

There are also substantial arguments in favour of adopting a generous approach to standing. This is particularly true in judicial review proceedings since here it is frequently important in the interests of the public generally, that the law should be enforced. The policy should, therefore, be to encourage and not to discourage public-spirited individuals and groups, even though they are not directly affected by the action which is being taken, to challenge unlawful administrative action. If very strict rules as to standing are laid down there is always the risk that no one will be in a position to bring proceedings to test the lawfulness of administrative actions of obvious illegality or questionable legality. It is hardly desirable that a situation should exist where because all the members of the public are equally affected, no one is in a position to bring proceedings.

In our country, it is now well-settled by several decisions of the Supreme Court that ''persons aggrieved'' can maintain a writ application. In other words, if a person is aggrieved by an action or order of the State or of any public authority, he will have locus standi to challenge such action or order by applying for judicial review. Under the English law only a person having ''sufficient interest'' in the subject matter and result of a lis is considered to be having locus standi to bring the action. To my mind, the tests of ''person aggrieved'' and ''sufficient interest'' are but two sides of the same coin.

As observed by the Supreme Court in the case of M.V. Dabholkar (supra) a person, to establish that he is a person aggrieved, must normally show that he has been denied or deprived of something to which he is legally entitled or that some burden has been imposed on him illegally.

Keeping the above legal principles in mind, let us see if the writ petitioners can be said to be persons aggrieved or persons having sufficient interest so as to have locus standi to maintain the writ petitions.

The three clauses of the NIT which the writ petitioners have challenged have been set out towards the beginning of this judgment. By the said clauses KPT seeks to impose a royalty to be paid by the handling agents to KPT on per tone basis on dry bulk cargo. Further, clause 7.12 makes it clear that only those bidders who undertake to pay royalty at the highest bid received will be issued handling agency license and will be allowed to undertake shore handling of dry bulk cargo at Haldia Dock Complex and bidders not submitting such undertaking will be debarred from undertaking shore handling of dry bulk cargo at Haldia Dock Complex. The writ petitioners contend that such proposed imposition of royalty is without authority of law and as such is illegal. However, if they do not submit the undertaking to pay royalty, they will be prevented from undertaking shore handling of dry bulk cargo at Haldia Dock Complex. In other words, if they do not accede to the demand of KPT which demand, according to them, is unlawful, they will lose the right to do business.

The further complaint of the writ petitioners is that KPT has no power or authority to stipulate a ceiling rate of what the shore handling agent can charge from their principals. According to them, such proposed act of KPT is illegal and without jurisdiction.

Thus, according to the writ petitioners, the proposed royalty will be an illegal imposition of financial burden on them and the proposed ceiling rate at which they can charge from their principles will be an illegal interference with their right to carry on business with their principals on such terms as they may agree. Whether the contention of the writ petitioners is legally acceptable or not will be decided upon consideration of the entire facts of the case and the applicable law. However, whether they have locus standi or not will have to be decided at the threshold. It cannot be said that if the contention of the writ petitioners are upheld, then they would be considered to be having locus standi. That would be begging the question. The question is whether the writ petitioners are likely to be adversely affected by the acts of KPT challenged in these writ petitions. Whether such acts of KPT are sustainable in law is a different question and that cannot have any bearing on the question as to whether or not the writ petitioners have locus standi to maintain these writ petitions.

There is no doubt that the test of locus standi has undergone considerable relaxation in the last few decades. In my opinion, even a possibility of adverse effect on a person would clothe him with locus standi to challenge the action or order complained of. However, such a possibility must be real and not fanciful or imaginary.

In the instant case, there is a real possibility of the writ petitioners being adversely affected if KPT is successful in implementing its policy of imposing royalty on the handling agents and enforcing a ceiling rate at which the handling agents can charge from their principals. The Supreme Court has laid down in the case of Ramana Dayaram Shetty (supra), that a party can challenge a tender process even without participating in the tender. In my view, the writ petitioners have sufficient interest in the subject matter of the writ petitions and are persons aggrieved and as such they have clear locus standi to maintain the writ petitions.

I also cannot accept KPT''s contention that the writ petitions are pre-mature. Clause 7.12 of the NIT clearly affects the rights of the petitioners by stipulating that bidders not submitting undertaking to pay royalty will be debarred from undertaking shore handling of dry bulk cargo at HDC. It is trite law that a person apprehending impending injury is not required to wait till he actually suffers such injury before he can approach a court of law for appropriate relief. He can take necessary legal action to prevent such legal injury by filing a quia timet action like the present one. Such an action cannot be said to be pre-mature.

The first issue is accordingly decided in favour of the writ petitioners.

Issue No. (ii) Whether the KPT can legitimately demand royalty from the shore handling agents in respect of dry bulk cargo and make payment of such royalty a pre-condition for allowing a shore handling agent to operate at the Haldia Dock Complex:--

It is settled law that the powers of a statutory body are circumscribed by the parent statute. Such a body has to act within the four corners of the statute. Any exercise of power transgressing the boundaries of the statute by such a body would be without jurisdiction and bad in the eye of law. Such a statutory body does not possess any kind of plenary or inherent power and is bound to act within the coordinates of the incorporating statute.

KPT is no exception to the above. It is a body constituted by and under the MPT Act, 1963. Its functions and powers are defined and stipulated by the Act. The services that the KPT is empowered to undertake are enumerated in Section 42 of the Act which is set out hereunder:

"S. 42. Performance of services by Board or other person.--(1) A Board shall have power to undertake the following services:--

(a) Landing, shipping or transshipping passengers and goods between vessels in the port and the wharves, piers, quays or docks belonging to or in the possession of the Board;

(b) Receiving, removing, shifting, transporting, sorting or delivering goods brought within the Board''s premises;

(c) Carrying passengers by rail or by other means within the limits of the port of port approaches, subject to such restrictions and conditions as the Central Government may think fit to impose;

(d) Receiving and delivering, transporting and booking and despatching goods originating in the vessels in the port and intended for carriage by the neighboring railways, or vice versa, as a railway administration under the Indian Railway Act, 1890 (9 of 1890);

(e) Piloting, hauling, mooring, re-mooring, hooking, or measuring of vessels or any other service in respect of vessels;

(f) Developing and providing, subject to the previous approval of the Central Government, infrastructure facilities for ports.

(2) A Board may, if so requested by the owner, take charge of the goods for the purpose of performing the service or services and shall give a receipt in such form as the Board may specify.

(3) Notwithstanding anything contained in this section, the Board may, with the previous sanction of the Central Government, authorize any person to perform any of the services mentioned in sub-section (1) on such terms and conditions as may be agreed upon.

[(3A) Without prejudice to the provisions of sub-section (3), a Board may, with the previous approval of the Central Government, enter into any agreement or other agreement, (whether by way of partnership, joint venture or in any other manner), any body corporate or any other person to perform any of the services and functions assigned to the Board under this Act on such terms and conditions as may be agreed upon.]

(4) No person authorized under sub-section (3) shall charge or recover for such service any sum in excess of the amount [specified by the Authority, by notification in the Official Gazette.]

(5) Any such person shall, if so required by the owner, perform in respect of goods any of the said services and for that purpose take charge of the goods and give a receipt in such form as the Board may specify.

(6) The responsibility of any such person for the loss, destruction or deterioration of goods of which he has taken charge shall, subject to the other provisions of this Act, be that of a bailee under sections 151 , 152 and 161 of the Indian Contract Act, 1872 (9 of 1872).

(7) After any goods have been taken charge of and a receipt given for them under this section, no liability for any loss or damage which may occur to them shall attach to any person to whom a receipt has been given or to the master or owner of the vessel from which the goods have been landed or transshipped."

Section 48 of the Act provides as follows:--

"S. 48. Scales of rates for services performed by Board or other person.--(1) [The Authority shall from time to time, by notification in the Official Gazette, frame a scale of rates at which, and a statement of conditions under which, any of the services specified hereunder shall be performed by a Board or any other person authorized under Section 42 at or in relation to the port or port approaches-]

(a) Transshipping of passengers or goods between vessels in the port or port approaches;

(b) Landing and shipping of passengers or goods from or to such vessels to or from any wharf, quay, jetty, pier, dock, berth, mooring, stage or erection, land or building in the possession or occupation of the board or at any place within the limits of the port or port approaches;

(c) Carnage or porterage of goods on any such place;

(d) Wharfage, storage or demurrage of goods on any such place;

(e) Any other service in respect of vessels, passengers or goods;

(2) Different scales and conditions may be framed for different classes of goods and vessels."

The word ''Authority'' referred to in Section 48 is the Tariff Authority for Major Ports (in short ''TAMP'') constituted by and under Section 47(A) of the Act which was incorporated in the statute by way of amendment and which came into force with effect from 9th January, 1997. Thus, prior to 9th January, 1997, although the Board of Trustees for KPT was empowered to frame the scale of rates for services performed by the Board or other persons, with effect from 9th January, 1997, the TAMP was vested with the exclusive power and authority to frame the scale of rates. The TAMP has accordingly framed the scale of rates which is binding on the Board of Trustees and on all persons operating within the premises of the Kolkata Port. Thus, with effect from 9th January, 1997 the Board of Trustees was denuded of the power to frame the scale of rates for services performed by the Board or other persons and an independent authority being the TAMP was given the exclusive power to do so.

On a careful reading of the MPT Act it would appear that the KPT has no power to impose any financial condition or any levy or tax or royalty either under Section 42 of the Act or under Section 48 of the Act or under any other provision of the Act. I am in agreement with the submission of the petitioners that the MPT Act does not confer any power on the KPT acting through the Board of Trustees to impose royalty on handling agents. KPT is entitled to recover only such amount of fee or charges from the handling agents as have been fixed by the scale of rates framed by TAMP. Imposition of royalty would be exercise of a power by KPT which it does not have under the parent statute.

Further, there does not appear to be any ''quid pro quo'' for the royalty sought to be imposed by KPT. The proposed royalty would be in addition to and not in substitution of license fee. It does not appear to be having any nexus to any service rendered by KPT to the handling agents. The handling agents are already paying fee for the license granted by KPT permitting the handling agents to operate within the port premises. The proposed royalty, in my opinion, would be more in the nature of a tax. However, KPT does not seem to be having any authority of law to levy or impose any tax. Thus, the proposed royalty would be in violation of Article 265 of the Constitution of India which stipulates that no tax shall be levied or collected except by authority of law.

In this connection reference should also be made to Section 29(3) of the MPT act which provides that the right to fix rates vested in the Board shall vest in the authority (i.e. TAMP) as from the date it is constituted under Section 47(A)(1) of the Act.

It is a cardinal principle of administrative law that a public authority may not act outside its powers i.e. ultra vires and if it does so the courts will quash such an act by way of judicial review. An act or order of a statutory authority which is ultra vires or without jurisdiction is null and void and devoid of legal effect. If the act is not within the powers given by the incorporating statute, it has no legs to stand on. The Rule of Law requires a statutory authority to operate strictly within the bounds of the statute.

The argument of KPT that it is in the position of a sovereign in so far the port premises are concerned including the Haldia Dock Complex and as such can impose any financial condition on the handling agents, who are desirous of operating within the port premises, is not acceptable. Long gone are the days of Royalty when ''a King could do no wrong''. In the present scenario, the king/queen in those countries where monarchy still survives and the Government in the other countries must act in accordance with law. Law is nothing but rationalization of socio-economic policy. It is a set of norms and rules formulated by the legislature which are binding on the citizens of a country and the Government alike. Nobody is above the law. The Rule of Law must be obeyed and followed as otherwise, anarchy will prevail.

KPT cannot act like an omnipotent monarch of all its surveys. It cannot exercise a power which it does not have under the parent statute. In fact, the power has been expressly taken away by amendment of the parent statute with effect from 9th January, 1997. The intention of the legislature appears to be clear. The scale of rates should be framed by an independent body. Hence, TAMP was constituted. KPT does not have the authority of law to fix the scale of rates or to impose any other financial burden on the shore handling agents. At page 90 of the affidavit-in-opposition, KPT has annexed copies of extracts from a meeting of the Trustees held on 18th July, 2014. It would appear from the same that six out of eight trustees had rejected the scheme for royalty. Various discrepancies, lacuna and legal defects in the scheme were pointed out and the Chairman was requested to take a decision on that. Without carrying necessary amendment or rectification, the Chairman proceeded to overrule the decision of the majority and directed the scheme to be proceeded with. This was in contravention of Section 16(3) of the MPT Act which provides that all questions at a meeting of the Board shall be decided by a majority of the votes of the Trustees present and voting and, in the case of an equity of votes, the person presiding shall have a second or casting vote. In my opinion, the resolution No. R/63/HDC/SH & CH/1/07/2014 to introduce the scheme for levy of royalty on handling agents is in breach of Section 16(3) of the MPT Act and is void ab initio. The Chairman had no power to overrule the majority view.

The argument of KPT that it is entitled to introduce the scheme of royalty to make up for the financial deficit is also not acceptable. The scale of rates for license fees for handling agents and clearing and forwarding agents have been fixed by TAMP presumably upon considering the deficit position. However, much KPT may be in need of funds but it cannot impose any financial burden on the handling agents which it has no authority to do.

The contention of KPT that judicial review of terms and conditions of a Notice Inviting Tender is not permissible, is not tenable. It is settled law that conditions of tender can be challenged when they are illegal or without the authority of law. In this connection one may refer to the decision of the Hon''ble Supreme Court in the case of Reliance Energy Limited and Another Vs. Maharashtra State Road Development Corporation Ltd. and Others, , paras 36 to 39 and also to the decision of this court in the case of AKA Logistic Pvt. Ltd. Vs. The Durgapur Projects Limited and Others, and to the decision of the Division Bench in the same case reported in 2013 (3) CHN (Cal) 545. In the case of Aka Logistic Pvt. Ltd. this court observed that the power of the High Courts to judicially review legislative actions and administrative and quasi-judicial decisions of bodies comprehended within the meaning of Article 12 of the Constitution is a basic feature of the Constitution. Ouster of power of judicial review is not readily inferred. Further ubi jus ibi remedium is the basic principle of jurisprudence. Ordinarily, courts of law are loath to entertain challenges to terms of an invitation to tender as they are in the realm of contract. However, in exceptional cases, if it appears to the court that the terms of an invitation to tender are tainted with malice to favour a particular bidder or is so grossly arbitrary that no person of ordinary prudence acting reasonably and in accordance with the relevant law would have reached it or it is against public interest, and the challenge has been thrown at an appropriate stage, it is the duty of the court to interfere.

It has also been argued on behalf of the KPT that ''royalty'' is a matter of ''policy'' and as such the same should not be interfered with by the court. This submission must also be rejected. Levy of royalty and other charges are not matters of policy. It is exercise of statutory power under the MPT Act. KPT does not have the power under the statute to levy royalty or other charges not covered by the scale of rates fixed by TAMP. In fact, it may be a policy matter for TAMP and not for KPT. Levy of scale of rates and other charges is to be determined and prescribed by TAMP by exercise of statutory power to be notified in the Official Gazette. It is significant that not only determination of scale of rates for services rendered under Section 48 of the Act but also determination of scale of rates for use of property belonging to the KPT, determination of fees for pilotage and certain other services like hauling mooring etc. under Section 49(A) , determination of port dues under Section 49(B) , framing of consolidated rates for combination of services under Section 50 , determination of port due of vessels in ballast under Section 50A , determination of port due on vessels not discharging or taking any cargo under Section 50B , power to levy confessional rates in certain cases under Section 51 of the MPT Act, all are within the exclusive domain and jurisdiction of the TAMP and the KPT has no power in that regard. It is the Central Government which has the power under Section 54 of the MPT Act to direct the TAMP to cancel or modify any of the scales of rate in force for such period as the Government may specify. Such a direction, however, must be accompanied by a statement of reasons. Thus, all the financial aspects under the MPT Act have been entrusted with the TAMP and the KPT has no power or jurisdiction in that regard.

In any event, a proposition that courts can never interfere with policy decision of the State or public authorities will be stretching the argument too far and not acceptable. If a policy decision of a State is palpably and manifestly illegal or contrary to the provisions of Constitution or a statute, the Court is not powerless to interfere. Similarly, if the policy decision of a statutory authority is contrary to the provisions of the incorporating statute or if such a decision is taken in exercise of a power which the parent statute does not give to the statutory body, the policy decision would be ultra vires and would be open to interference by way of judicial review.

For the reasons foretasted, the second issue is answered also in favour of the writ petitioners. It is my considered view that the KPT acting through its Board of Trustees does not have the power or jurisdiction to impose any royalty on the handling agents.

Issue No. 3: Whether the KPT has the power or competence to impose a ceiling on the rates that the shore handling agents can charge from their principals?

Under Section 48 of the MPT Act only TAMP is empowered to fix rates at which KPT or its authorized agents can charge for services rendered under Section 42(1) . The services contemplated under Article 3 of the NIT fall within the scope of Section 42(1)(b) of the Act. The TAMP, by its order dated 21st February, 2014 has framed the scale of rates applicable to the KPT. Section 1 of the Scale of Rates states that ''the scale of tolls, dues and rates constituted hereinunder shall be called Scale of Rates of the Calcutta Port Trust and charges shall be levied by Calcutta Port Trust in terms of provisions of Scale of Rates.'' Section 2 (xix) of the Scale of Rates defines shore handling charges to mean charges on cargo/commodity/article/package/container for rendering shore services by the Port in the form of supply of labour with/without equipment for transportation of cargo from hook point to stacking point (including the loading at hook point), unloading of the same at the stacking point and subsequent loading for delivery, or vice-versa and in case of mechanical receiving of cargo shall also include charges for tippling of wagon by wagon tippler. The aforesaid two provisions make it quite clear that the scale of rates framed by TAMP stipulates the rates at which KPT can charge for services rendered by it. The said Scale of Rates does not stipulate the rates which handling agents may charge for rendering services to their principals. The TAMP has not framed scale of rates applicable to authorized agents of KPT.

In my opinion, the power to prescribe the rates at which KPT or its authorized agents may charge for services rendered is exclusively that of the TAMP and KPT has no such power. By stipulating rates at which handling agents can charge their respective principals in respect of services rendered exclusively by handling agents under private contracts, KPT has transgressed its jurisdiction and has trespassed into the domain of the TAMP. Prescription of such rates is without jurisdiction and of no effect in the eye of law. KPT has no legislative authority to prescribe such rates.

Further, it appears that KPT does not lend any infrastructural support or render any service in connection with shore cargo handling activity. For entering into the port premises separate entrance fee as per TAMP rates are payable by the agents. For storage and warehousing facility, if availed from the port, separate ground rent is payable. The handling agency license is a mechanism of registering the private operators who may carry out their respective independent businesses at the port. It is akin to municipal trade license issued to private traders and business establishment. The KPT is never involved with the rendering of services by the handling agents. It has no contract of dealing with the importers/exporters who avail of such services. The tender itself recognizes that importers and exporters are to remain the direct principals of the handling agents without the KPT being privy to contracts between them. Clause 2 (xi) under Section - ii of the NIT (definitions), defines ''Principal'' as meaning the importer/exporter/agent, as the case may be, who engages the handling agents for services mentioned under the ''scope of work'' as contained in the Bid Document.

Section 42(4) of the MPT Act has no application in the present case since no Scale of Rates have been framed by TAMP which applies to authorized agents of the KPT. It was submitted on behalf of the petitioners that no other port in India has extended the scale of rates framed by TAMP for KPT to private handling agents. This submission was not disputed on behalf of KPT. It is also significant to note that when Haldia Dock Terminals Ltd. had been engaged by KPT for berth Nos. 2 and 8 at the Haldia Dock, on KPT''s request, TAMP had framed a separate scale of rates applicable to that operator. Thus, KPT appears to be quite conscious that it does not have the power to prescribe any rates at which the handling agents may charge for their services rendered to their principals.

It is pertinent to note that in paragraph 8(f) in its affidavit-in-opposition, the KPT has stated that the factum of engagement of the petitioner by importers/exporters is irrelevant in so far the matter of levy of charges is concerned for shore handling services. This would mean that the rates chargeable by the handling agents from their respective principals are not relevant for KPT. Therefore, it would be wholly unreasonable for KPT to interfere with the contracts between the handling agents and their principals when the rates charged by the handling agents are not relevant for KPT. I am in agreement with the submission made on behalf of the petitioners that KPT has no jurisdiction/authority in law to impose a ceiling on the rates at which handling agents can charge their respective principals who are directly serviced by the Handling Agents.

It was further submitted on behalf of the petitioners that the ceiling rates prescribed for the Handling Agents by KPT are even less than the rates prescribed by TAMP for services rendered by KPT directly to its customers. This submission appears to be factually correct. It would appear from the scale of rates framed by TAMP for KPT (page 88 of writ petition) that KPT is entitled to charge Rs. 12/- per metric tone in respect of heaping/high-heaping of dry bulk cargo at storage area/hook point at HDC. However, it would appear from the clause of the NIT under challenge (page 120 of writ petition) that for the same work, KPT has stipulated a rate of Rs. 10/- per metric tone which a handling agent can charge from its principal. Similarly, in respect of dispatch related services for rail borne cargo handled/to be handled through MHC berths of HDC including cleaning, trimming, labeling, lime spraying and wagons, KPT is entitled to charge Rs. 10.80 per metric tone whereas for handling agents KPT has sought to stipulate Rs. 9/- per metric tone. This, in my opinion, is unreasonable, arbitrary and discriminatory. I am clearly of the view that KPT has no power or jurisdiction to interfere with the petitioner''s freedom of contract with their principals. Having authorized the petitioners against payment of license fee to operate within the port premises by rendering shore handling services, the KPT cannot be concerned with what rates the handling agents charge from their principals. Such rates ideally should be fixed by the market forces of demand and supply. Any interference with such rates by the KPT would be without jurisdiction and null and void.

For the reasons foretasted I declare that Clause 14.1 of the NIT is without authority of law and or jurisdiction and the same should be deleted from the NIT.

Conclusion:--The writ petitions, therefore, succeed to the extent that the Clauses in the NIT seeking to levy of royalty on the shore handling agents and fixing a ceiling rate at which the handling agents may charge from their principals are struck down. The said Clauses ought to be deleted from the Notice Inviting Tender. This judgment will, however, in no manner affect the power and jurisdiction of TAMP to enhance the license fees or introduce any other scheme in accordance with law or frame a special scale of rates applicable to the handling agents which will be reasonable and nondiscriminatory viz-a-viz the scale of rates framed for KPT.

Accordingly, all the four writ petitions being Nos. WP 22511 (W) of 2014, WP 22307 (W) of 2014, WP 22510 (W) of 2014 and WP 22512 of 2014 are disposed of.

In view of this judgment, no further order is passed on CAN 10257 of 2015 and CAN No. 8016 of 2015 both of which are also disposed of.

Urgent certified photocopy of this judgment, if applied for, be given to the parties upon compliance of requisite formalities.