C.G. Praveen Vs. Mohd. TajuddIn and anr. - Court Judgment

Excerpt:
- goa, daman & diu ports rules, 1983 rules 54-a & 2(f) (as inserted by 1994 amendment): [r.v. raveendran & lokeshwar singh panta, jj] levy of fee for occupation of riverine land held, it is within the competence of state. the rules as amended in 1992 and 1994 providing for fees fo ruse of riverine land is not ultra vires provisions of ports act (15 of 1908). the fee can be charged only from 1994. before amendment to rules in 1992 and 1994 the government had no power to levy fee on riverine land. section 6: [r.v. raveendran & lokeshwar singh panta, jj] goa, daman and diu ports rules, 1983, rules 54-a & 2(f) (as inserted by 1994 amendment) fee for occupation of riverine land held, fee for occupation of riverine land can be charged only from date of 1994 amendment. in the 1984 rules there was no provision for levy of any fee or charge for use of riverine land. the rules only provided for a fee for the occupation of open plots. open plot refers to a plot of land which is open to sky. in the absence of a special or deeming definition, the term open plot cannot be read as referring to the river bed which is covered by water for part of the day and exposed for remaining part of the day. it was only by the 1992 amendment, to the rules the words open riverine land was added under entry 21(4) (a-iv) of the first schedule so as to subject the occupation of open riverine land to payment of fees. prior to the 1992 amendment, the first schedule to the rules did not provide for levy of any fees for occupation of riverine land. however, it was only by the 1994 amendment, with effect from 3.3.1994, the rules were amended by inserting clause (ff) in rule 2 containing the definition of government riverine land and by inserting rule 54a specifically providing that no government riverine land shall be used, without prior written permission of the captain of ports and without making advance payment of rental charges at the prescribed rate. therefore, prior to the said amendment to the rules in 1994, neither the act nor the rules authorized or enabled the government to levy any fee/charge for use of government riverine land. the amendment to 1984 rules in 1992 and 1994 are, therefore, not clarificatory, but are provisions investing the port authorities with the power to levy and collect charges for occupation of government riverine land. the amendment rules do not provide that they are retrospective in operation. nor do the circumstance warrant such an inference. therefore, the demand for charges for use of government riverine land is valid only from 3.3.1994. therefore, the port authorities could not demand or recover any amount for the period prior to 3.3.1994. section 6(jj): [r.v. raveendran & lokeshwar singh panta, jj] definition of landing place held, landing place refers to a place on a river or other navigable water for loading and unloading of goods, or for receiving and delivering of passengers. but the term landing place would refer not only to places earmarked or designated or specified as landing places, but to any and every place which is used as a landing place. berthing of barges and other vessels in the river, alongside the workshop, for repairs would mean that there will be regular movement of men and material from the berthed vessel to the workshop and vice versa. any area with a prepared berth in which craft can lie, can properly be described as a landing place. in effect, therefore, the river side of every warehouse or workshop on the banks of a river, which has a prepared berth in which vessels/craft can lie, with facilities for unloading or loading of men and material, will be a landing space, though not a designated landing place. the river surface and river bed along side the workshop, belonging to the government will also be a part of such landing place/workshop. a boat/barge repairing workshop situated on the river bank, can, therefore, be said to be using the government riverine land. section 6(jj): [r.v.raveendran & lokeshwar singh panta,jj] goa, daman and diu ports rules, 1983, rule 64, schedule 1, entry 21, item (4) (a-iv) (as amended in 1992) and rule 54a (inserted in 1994) levy of fee for use for riverine land held, the scope and ambit of supervision and control of the port authorities under the ports act in regard to areas declared as ports, is very wide. section 6 enables the government to make rules in respect of the several matters enumerated therein. section 6(jj) in particular, enables the state government to make rules for regulating the use of landing places, piers, jetties, wharves, quays, warehouses and sheds belonging to the government and fixing the rates to be paid for the use of the same. it is no doubt true that the landing place in the usual sense refers to the river bank alongside the river used for loading/unloading or embarking/disembarking and not any portion of the river itself. but where the bank of the river used for the workshop is a private land, the area of river adjoining such workshop (or riverine land alongside the workshop) where the vessel is moored and remains floating during high water period or settled on the riverbed during low water period, is also a part of the landing place. when the entire river and the riverbed belong to the government and is under control of port authorities, and when exclusive use of a part of such river area/riverine land adjoining the river bank is permitted by the port authorities, they can demand a fee for such regular or exclusive use, whether such use is continuous or intermittent. the right or authority to demand such charges can also be traced to the right to regulate the use of the port area. the port area includes the waters of the river and the riverine land. the state is, therefore, empowered to make rules regulating the use of the river surface/riverine land alongside the workshop and also prescribe a rental charge for such use. the 1992 amendment and the 1994 amendment to the goa, daman and diu ports rules, 1983 which enable the port authorities to levy, charge and recover a fee or charge for using open government riverine land from the person who is permitted to use such government riverine land is within the rule making power of the state, and cannot, therefore, be said to be ultra vires the rules making power under the act. in fact, even without specific rules, the port authorities in exercise of domain over riverine land and the river, could object to or prohibit the the exclusive mooring by vessels which call at the workshop. the port authorities can also enter into an arrangement of lease/licence with the users of such riverine land/demarcated river surface alongside the workshop or establishment.ordercriminal appeal no. 1338 of 20021. heard learned counsel for the parties.2. by the impugned order, the high court quashed the prosecution of respondent no. 1 mohd. tajuddin under section 138 of the negotiable instruments act, 1881 (for short, 'the act') only on the ground that the complaint was filed by the power of attorney holder of the payee and not the payee himself. the question whether the signing of complaint by the payee himself is sine qua non for taking cognizance of offence under section 138 of the act is no longer res integra. in shankar finance and investments v. state of andhra pradesh and ors. :(2008) 8 scc 536, this court interpreted section 142 of the act and held that a complaint under section 138 can be filed by the payee through his power of attorney holder. in this case, the complaint was filed by the payee through his power of attorney holder. this being the position, the high court was not justified in quashing the prosecution of respondent no. 1.3. accordingly, the appeal is allowed, impugned order is set aside and the petition filed by respondent no. 1 under section 482 of the code of criminal procedure is dismissed. now, the trial court shall proceed with the case in accordance with law.4. as the complaint was filed in 1996, we direct the concerned trial court to conclude the trial within six months from the date of receipt/production of the copy of this order. criminal appeal nos. 813 of 2003, 440 of 2005 and 443 of 2005.5. in view of the order passed in criminal appeal no. 1338 of 2002, these appeals are allowed in the similar terms.

Judgment:
ORDER

Criminal Appeal No. 1338 of 2002

1. Heard learned Counsel for the parties.

2. By the impugned order, the High Court quashed the prosecution of respondent No. 1 Mohd. Tajuddin under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the Act') only on the ground that the complaint was filed by the power of attorney holder of the payee and not the payee himself. The question whether the signing of complaint by the payee himself is sine qua non for taking cognizance of offence under Section 138 of the Act is no longer res integra. In Shankar Finance and Investments v. State of Andhra Pradesh and Ors. :(2008) 8 SCC 536, this Court interpreted Section 142 of the Act and held that a complaint under Section 138 can be filed by the payee through his power of attorney holder. In this case, the complaint was filed by the payee through his power of attorney holder. This being the position, the High Court was not justified in quashing the prosecution of respondent No. 1.

3. Accordingly, the appeal is allowed, impugned order is set aside and the petition filed by respondent No. 1 under Section 482 of the Code of Criminal Procedure is dismissed. Now, the trial court shall proceed with the case in accordance with law.

4. As the complaint was filed in 1996, we direct the concerned trial court to conclude the trial within six months from the date of receipt/production of the copy of this order. Criminal Appeal Nos. 813 of 2003, 440 of 2005 and 443 of 2005.

5. In view of the order passed in Criminal Appeal No. 1338 of 2002, these appeals are allowed in the similar terms.