Sesa Goa Limited Vs Mormugao Dock Labour Board

Bombay High Court 30 Mar 2012 Writ Petition No. 3 of 1997 (2012) 03 BOM CK 0081
Bench: Single Bench
Result Published
Acts Referenced

Judgement Snapshot

Case Number

Writ Petition No. 3 of 1997

Hon'ble Bench

S.C.Dharmadhikari, J

Advocates

R.G. Ramani, Mr. Sudin Usgaonkar with Ms. A. Shirodkar in First Appeal NO. 52 of 2003 Mr. R. Dada, with Mr. A.F. Diniz and Ms. M. D''souza in First Appeal NO. 152 of 2001 Mr. R. Dada and Mr. P. Sanchetti, s with Mr. A.F. Diniz and Ms. M. D''souza in First Appeal NO. 152 of 2001 Mr. M. S. Sonak with Mr. J. P. Supekar, in First Appeal NO.154/2001 Mr. M. S. Sonak with Mr. J. Supekar in First Appeal NO. 158 of 2002 Mr. V. B. Nadkarni, with Mr. Y. V. Nadkarni and Mr. Noronha, in First Appeal NO.183/2001 Mr. M. S. Sonak with Mr. J. Supekar, in Writ Petition NO. 33 of 2002 Mr. Rafiq Dada with Mr. A. F. Diniz and Ms. Melanie, for the Appellant; V. B. Nadkarni with Mr. Y.V. Nadkarni with Mr. Noronha, Advocates for respondent no.1. Mr. M. Amonkar, Central Government Standing Counsel for Respondent no.2. Mr. V. B. Nadkarni with Mr. Y.V. Nadkarni with Mr. Noronha, Advocates for respondent no.1.in First Appeal NO. 52 of 2003 Mr. M. Amonkar, Central Government Standing Counsel for Respondent No.2. Mr. V. B. Nadkarni with Mr. Y.V. Nadkarni with Mr. Noronha, Advocates for respondent no.1..in First Appeal NO. 152 of 2001 Mr. M. Amonkar, Central Government Standing Counsel for Respondent No.2 Mr. V. B. Nadkarni with Mr. Y.V. Nadkarni with Mr. Noronha, Advocates for the Respondent No.1 in First Appeal NO. 152 of 2001 Mr. M. Amonkar, Central Government Standing Counsel for Respondent No.2. Mr. V. B. Nadkarni with Mr. Y. V. Nadkarni and Mr. Noronha, Advocates for respondent no.1.First Appeal NO.154/2001 Mr. M. Amonkar, Central Government Standing Counsel for respondent no.2. Mr. V. B. Nadkarni with Mr. Y. V. Nadkarni and Mr. N. Noronha, Advocates for respondent no.1.First Appeal NO. 158 of 2002 Mr. M. Amonkar, Central Government Standing Counsel for respondent no.2. Mr. M. S. Sonak with Mr. J. P. Supekar, Advocates for respondent no.1.in First Appeal NO.183/2001 Mr. M. Amonkar, Central Government Standing Counsel for respondent no.2. Mr. V. B. Nadkarni with Mr. Y. V. Nadkarni and Mr. N. Noronha, Advocates for respondent no.1 to 3.in Writ Petition NO. 33 of 2002 Mr. M. Amonkar, Central Government Standing Counsel for respondent no.2. D''Souza, Advocates in Writ Petition NO. 409 of 2001Mr. V. B. Nadkarni with Mr. Y. V. Nadkarni and Mr. N. Noronha, Advocates for respondent no.1 and 2.Writ Petition NO. 409 of 2001 Mr. M. Amonkar, Central Government Standing Counsel for respondent no.3., for the Respondent

Final Decision

Dismissed

Acts Referred
  • Constitution of India, 1950 - Article 226
  • Industrial Disputes Act, 1947 - Section 2(P)

Judgement Text

Translate:

Dharmadhikari, J

1. These first appeals and the writ petitions were heard together as they involve common question of law and, therefore, they are being disposed of by this common judgement. To the extent there is a distinction or difference in factual aspects, those have been pointed out and highlighted by us. However, primarily, these two sets of matters involve the following questions which have been framed by us:

(a) Whether the appellants and the petitioners who are styled as the transhippers have to pay the levies at the dock on par with other users or whether there is any distinct arrangement as between them and the erstwhile Dock Welfare Board (for short "DW Board") so also the present Mormugao Port Trust (MPT for short)?

(b) Whether the distinct arrangement which we have referred above is restricted to certain levies which are charged and recovered by the DW Board or whether this arrangement is all pervasive and all inclusive as urged?

(c) Whether the MPT which is a Major Port Trust covered by the Major Port Trusts Act, 1963 (MPT Act for short), is entitled to recover the dues from the transhippers despite the distinct arrangement referred to above or it was the DW Board established u/s 5A of the Dock Workers (Regulation of Employment) Act, 1948 (DW Act for short) alone which is entitled to recover the same?

(d) Whether the Dock Workers (Regulation of Employment) (Inapplicability to Major Ports) Act, 1997 (for short DW Inapplicability Act) and the provisions thereof put an end to the distinct arrangement/ agreement or a scheme under the DW Act and therefore, the MPT is unable to recover any dues which are recoverable by the DW Board or not OR whether the notification u/s 3 of the DW Inapplicability Act being issued, does not mean that a Major Port Trust cannot recover any dues from the Trans-shippers from the date of issuance of notification within the meaning of this section of the DW Inapplicability Act?

For properly appreciating the factual background in which these questions arise for determination, firstly it would be necessary to note facts in First Appeal No.152 of 2001 and then in Writ Petition No.409 of 2001. These first appeals are filed by three companies i.e. V.M.Salgaonkar Brothers Pvt. Ltd. (for short "Salgaonkar Bros"), there is another company called as M/s.Salgaonkar Engineers Pvt. Ltd. (for short "Salgaonkar Engineers") and other two companies are M/s.Chowgule and Company (for short "Chowgule") and DEMPO.

2. First Appeal No.152 of 2001 is by the said Salgaonkar Bros who are original plaintiffs in Suit No.7 of 1985. They are aggrieved and dissatisfied by the judgement and decree of the learned Dist.Judge dated 7th July 2001 dismissing their suit. In this suit, the Board of Trustees of MPT is the original defendant No.1 whereas Union of India through Secretary, Ministry of Shipping and Surface Transport is the second defendant. The contesting defendant No.1 viz., the Board of Trustees of MPT presented a counter claim in Suit No.7 of 1985 which has been partly allowed and certain sums are permitted to be recovered in the light of the findings on the said counter claim. This judgement and decree dated 7th July 2001 in this suit and the counter claim is challenged in the First Appeal.

3. The Writ Petition under Article 226 of the Constitution of India

concerns the events post promulgation of the notification u/s 3 of the DW Inapplicability Act and we would advert to the same a little later.

4. The background in which the suit came to be instituted may now be stated:

The DW Regulation Act was enacted in the year 1948 and the relevant provisions of the same are as under:

Section 2 contains definitions of Board, Dock Workers, Employer and finally section 2(e) defines what the scheme is. Section 3 narrates formation of scheme and section 3(2) elaborates provisions of scheme. Section 3(2)(ff) provides for creation of fund/s for the scheme and administration of such fund/s. Section 4 provides for the power of the Government to make schemes. The general procedure for making of the scheme is that first the scheme has to be published for common knowledge and after the publication the scheme has to be finalised after consideration of the objections received and then final notification is made in official gazette.

Section 5(A) speaks of setting up of Dock Labour Boards. Section 5(B) gives functioning of the Board. Section 8 speaks of Rule making power of Government of India. Section 8(A) provides that every scheme and rule made under the Act shall be laid before each House of Parliament.

In the year 1962 the Dock Workers (Regulation of Employment) Rules, 1963 were framed by the Central Government u/s 8(1) and 8(2) of the Act. In the year 1965 the Mormugao Dock Workers (Regulation of Employment Scheme) 1965 was made by the Central Government u/s 4 of the Act. The relevant provisions of the scheme are as under:-

Clause 2(1) provides that the scheme shall relate to the port of set out in the schedule. Clause 3(o) defines Registered Employer. Clause 16 provides for maintaining of Registers. Clause 17 and Schedule I provides classes of dock work and dock workers such as stevedoring work and cargo handling form whart to transit sheds and vice versa. The stevedoring work has been categorised in two types (i) gangworkers and (ii) winchmen.

Clause 7 provides for functioning of the Board. Clause 39 prescribes the obligations of registered employer. Clause 40 puts restrictions on employment. It provides that no person other than "Registered Employer" shall engage workers nor a worker shall be engaged unless he is registered dock worker. Clause 54 provides for cost of operation of the scheme.

In the year 1969 or prior thereto export of iron ore was done by way of brining barges to the port and either unloading them at the harbour or on board ocean going carriers. Due to shallow raft at MormugaoPort it was not possible for big vessels to enter the Port or vessels which could enter the port to be loaded fully at port. The mine owners and exporters, therefore, decided to bring in sophisticated vessels called "Transhippers" which are equipped with cranes, grab buckets and harpers which can load iron ore into their own hold and from thereon to the vessels. M/s.Chowgule & Co. Pvt. Ltd. Brought in the first transhipper into Goa. The original plaintiffs brought their first transhipper Sanjeevani in the year 1970.

In Writ Petition No.60 of 1983 an affidavit is filed by one Mr.A.Omkarappa wherein he has asserted that the transhipper owners were required to provide their own set of employees with their specified service conditions for operating the cranes which was imposed as a condition for allowing them to operate transhippers. These assertions on behalf of MDLB have been noted in the judgement of this Court delivered on 12th October 1983 (page 280 of paperbook).

In the year 1970 the Mormugao Dock Labour Board (MDLB) the predecessor of the present defendants raised a contention that personnel employed on the transhippers were liable to be subject to the provisions of the 1965 scheme. In the year 1971 M/s.Chowgule & Co. Pvt.Ltd. Filed a petition in the Court of Judicial Commissioner for Goa, Daman and Diu being Special C.A.No.47 of 1971.

In the year 1974 the petition filed by M/s.Chowgule & Co. Pvt. Ltd., was partly allowed by the learned Judicial Commissioner holding that none of the workers employed on the transhippers fell within the category of gang workers; the demand for contribution in respect of the said workmen was therefore quashed and insofar as the personnel operating the cranes on transhippers was concerned, it was held that the demand was valid as such personnel fell within the category of winchmen. (pages 80-81 paperbook)

The learned Judicial Commissioner granted certificate of fitness to appeal against the said judgement to the Hon''ble Supreme Court under Article 133

of the Constitution of India. Similar Certificate was also obtained by MDLB (para 12 of plaint paperbook). M/s.Chowgule & Co., filed Civil Appeal No.1250 of 1975. MDLB raised demand for levies under the scheme in respect of the plaintiffs transhippers Sanjeevani and alleged that plaintiffs had violated clauses 39 and 40 of the scheme. (para 14 of plaint). The plaintiffs herein filed a petition being Writ Petition No.157 of 1975 challenging the order of MDLB. The said writ petition was admitted and interlocutory reliefs were granted. (para 15 of plaint). In the year 1976 the Hon''ble Supreme Court granted conditional stay on Civil Appeal No.1250 of 1975 filed by M/s.Chowgule & Company to the effect that the said M/s.Chowgule and Company should give an ad hoc bank guarantee of Rs.4 lakhs and the interim stay was continued. (page 668 vol III). A meeting was called between the Government officials, law officers and labour leaders to consider settlement of disputes as regards applicability of scheme to the transhippers. (page 672 Vol. III).

Agreements were entered into by MDLB in the year 1977 which were duly signed by Chairman with four iron ore exporters such as M/s.Chowgule & Company, M/s.V.M.Salgaonkar & Bros., M/s.Shantilal Khushaldas & Bros. Pvt. Ltd., and M/s.V.S.Dempo & Co.Pvt. Ltd. The said agreements inter alia provided thus:-

(i)The parties on legal advice had negotiated on various dates to arrive at a mutual settlement in the matter irrespective of their contentions;

(ii)The owners shall be at liberty to continue to employ their own workmen on the vessel;

(iii)The owners shall pay an ad hoc amount of 7 paise per ton with effect from January 1972;

(iv)The owners shall withdraw Writ Petition No.157 of 1975 pending in the Court of Judicial Commissioner at Goa;

(v)The owners shall continue to pay this levy in future till the same is changed with mutual consent of the parties;

(vi)The Board shall not enhance the rate until it is mutually agreed upon;

In the year 1977 the plaintiffs withdrew the Writ Petition No.157 of 1975 which was pending before the learned Judicial Commissioner. M/s.Chowgule & Company withdrew their Civil Appeal insofar as it related to the levy under the scheme in respect of transhippers. Further negotiations were held between transhippers owners and MDLB. With effect from 14th August, 1980 by modification of the said agreement dated 9th July 1977, the levy was increased from 7 paise per ton to 21 paise per ton. This modified agreement was recorded by plaintiffs vide their letter to MDLB dated 11th November 1980 (page 346 Vol. III). A resolution of MDLB No.790 recording enhancement of levy payable by transhippers under the Agreements from 7 paise to 21 paise per ton with effect from 14th August 1980 was passed. (page 678 Vol. III). Plaintiffs in or around July / August 1982 acquired another transhipper Navjivani which was renamed as Swatirani. In October 1982 MDLB constituted a committee to recommend rationalisation of levy structures for all modes of handling of ore at the port. On 29th January 1983 a meeting was held by MDLB. At this meeting Resolution No.923 of 1983 was passed under which "Mormugao Dock Labour Board (Winch Drivers) Voluntary Retirement Scheme, 1983 was considered and approved. Pursuant to this resolution it was resolved thus:- "Further resolved that a special levy at the rate of Re 1/- per ton with effect from 1st February 1983 be charged on all cargoes subject to approval of the Central Government and subject to review of the same in the budget estimates for 1983-84" (page 682).

It is further stated by the appellants that this resolution/ scheme was passed by MDLB only and it was not the scheme as contemplated under the Act and under the Rules. Further the scheme was not approved or made by the Central Government as required u/s 4 of the Act. This scheme was not made after following the procedure of prior publication. This scheme for cancellation of special levy was only in respect of manually handled cargo. This scheme was in the nature of fees for implementation of the Voluntary Retirement scheme and grant of benefits to the workmen covered under that scheme for being paid these benefits to them who opted for such voluntary retirement.

On 14th March 1983 a letter was issued by Central Government to MDLB informing MDLB that the Central Government had approved the special levy of Re 1/- per ton in respect of cargo manually handled. (Exh.D-21 pg.687 Vol.III). On 17th March 1983 the resolution was passed by MDLB authorising Chairman/ Deputy Chairman to take such steps as may be deemed fit to safeguard the interest of the Board in the matter of payment of proper levy charges, inter alia, by the owners of transhippers. (Exh.D-22 pg.689 Vol.III). On 19th March 1983 the Circular was issued by MDLB notifying that the Union Government had granted approval on 14th March 1983 to the collection of special levy of Re 1 per ton in respect of all cargoes manually handled. (Exh.P-4 pg.347 Vol.II). On 6th April 1983 a Circular was issued by MDLB to plaintiffs and other transhipper owners suggesting modification to the earlier agreement dated 9th July 1977 as modified with effect from 14th August 1980 (Exh.P-5 pg.348 Vol.II) and inviting them for discussion about revision of rates. (para 32 of plaint pg.89 Vol.I).

On 13th April 1983 a Writ Petition being Writ Petition No.60 of 1983 was filed by Sociedade de Fomento Industrial Private Limited against MDLB and Union of India inter alia seeking the reliefs that there was discrimination between transhipper owners and the other exporters and hence the levy of Re 1/- against them was liable to be declared illegal. Another writ petition being Writ Petition No.74 of 1983 was also filed by Pandurang Timblo Industries against MDLB and Union of India seeking similar reliefs as in Writ Petition No.60 of 1983.

On 14th July 1983 a resolution was passed by MDLB authorising Chairman to sign fresh agreement with Transhipper owners and modify previous agreements. (page 582). On 14th July 1983 at the said meeting following resolution was passed:-

Resolved by way of clarification that the special levy adopted by the Board vide Resolution No.923 dated 29th January 1983 duly approved by the government vide their letter No.LDG/19/83-2-II dated 14th March 1983 be and is hereby authorised to be collected in respect of all cargoes handled with the help of registered Dock Workers (whether gang workers or winch drivers).

It is further contended by the original plaintiffs that the circular apparently permitted MDLB to collect levy in respect of all cargo handled. The initial circular, which stated "manually handled cargo", was changed to "all cargoes". However, this circular was applicable only to the cargo handling done with the help of registered dock workers. Although the resolution purported to

amend the initial resolution dated 29th January 1983, this resolution has not been made or approved by the Central Government as required under the Act and the Rules. The Central Government approved the same on 22nd December 1983.

On 23rd September 1983, an agreement was signed between plaintiffs and MDLB in respect of collection of levy. This agreement was signed by Chairman on behalf of MDLB as contemplated under the Rules. The levy instead of being fixed amount of 21 paise per ton was then corelated to average of 1100 tons per crane per shift. This levy was applicable not only to the existing transhippers but subsequent transhippers, which may be acquired. No change in this scheme could be made without mutual consent.

On 12th November 1983 MDLB sent a letter to plaintiffs and other transhipper owners stating that the plaintiffs should furnish the details about workmen, their pay scales, welfare amenities etc. (Exh.D-7 pg.592). Another letter was also addressed by MDLB to plaintiffs seeking details of monthly workers engaged on transhippers (Exh.D-30 pg.703). Similarly a letter was addressed by Central Government dated 21st December 1983 to Chairman MDLB conveying approval of Central Government to MDLB''s resolution No.935 dated 14th July 1983 regarding collection of special levy in respect of "all cargoes handled" by use of registered workers. (D-24 Pg.691). On 28th April 1984 a letter was addressed by the plaintiffs to Accounts Officer MDLB pointing out that the debit notes issued to the plaintiffs were not in accordance with the ad hoc levy payable by the plaintiffs under the Agreement.

On 12th October 1984 this Court decided the Writ Petition No.60 of 1983 and Writ Petition No.74 of 1983 holding that there was no discrimination between transhipper owners and other operators insofar as the said levy was not demanded and collected from the transhipper operators. However, the demand, if any, could not be retrospective.

On 4th December 1984 the MDLB issued a demand letter to the plaintiffs annexing Resolution dated 19th March 1983 and 14th July 1983, citing observations of this Court in its judgement dated 12th October 1983 and claimed special levy with effect from 14th July 1983 from plaintiffs. (Exh.P-30 Pg.384). On 29th December 1984 the Circular was issued by MDLB prescribing rates of various levies with effect from 1st January 1985.

On 11th February 1985 the present suit was filed in the Distict Court seeking declaration that MDLB was not entitled to demand any levy from the plaintiffs in excess of one payable under the Agreement dated 9th August 1977 as modified by Agreement dated 23rd September 1983. On presentation of this suit a notice came to be issued by District Court to defendants and directing defendants, in the mean time, to maintain status quo till the decision on merits. The ad-interim order was continued on 20th September 1986 subject to plaintiffs furnishing Bank Guarantee.

On 5th November 1986 written statement and counter claim came to be filed by MDLB seeking declaration of clauses 6 and 7 of the 1977 agreement as void and for payment of Rs.26,24,543/- (page 129 to 198). On 18th January 1995 the appeals filed by Sociedade de Formento Industrial Pvt. Ltd., so also MDLB against the judgement and order of this Court dated 12th October 1984 were dismissed by the Supreme Court. Thereafter, on 1st April 1985 the special levy was discontinued. On 18th August 1997 the Parliament passed an Act known as Dock Workers (Regulation of Employment) (Inapplicability to Major Port) Act, 1997. This Act provided that after settlement with workmen is arrived at under the provisions of Industrial Disputes Act, 1947, the Central Government may by notification direct that provisions of 1948 Act shall cease to apply in relation to that Major Port.

On 18th December 1997 a resolution was passed by MDLB deciding to merge with MPT as its 10th Department. On 4th February 1998 a Memorandum of Settlement u/s 2(P) of the Industrial Disputes Act, 1947 between management of MDLB, its workmen and management of MPT resolved for merger of MDLB with MPT; service conditions of the workmen as prescribed in Annexure A thereto. Under the said scheme in clause (E) it has been provided as under:-

(E)(5) To ensure flexibility and financial adjustment in place of existing rates of levy, a new consolidated rate per ton for each commodity will be fixed and intimated to the trade eventually.

On 7th February 1998 a Resolution of the Board of Trustees of MPT came to be passed declaring MDLB as its 10th Department. A notification came to be issued by Ministry of Surface Transport on 17th March 1998 notifying that with effect from 31st March 1998 the 1948 Act shall cease to have effect on Port of Mormugao. (Pg.1070). Thus, 31st March 1998 was fixed as appointed date under the said notification for making the 1948 Act inapplicable to the Port of Mormugao. Consequently, the provisions of the Dock Welfare Regulation Act 1948 ceased to apply to Port of Mormugao and the provisions of this Act and Rules made thereunder and the scheme framed thereunder also ceased to apply to Port of Mormugao.

On 8th January 1999 the Amendment Application moved by on merit and on the scope of interpretation of Inapplicability Act were kept open. On 7th July 2001 the Suit No.7 of 1985 along with other two suits viz., Suit No.9 of 1985 (by Salgaocar Engineers Pvt.Ltd) and Suit No.10 of 1985 (by Chowgule & Co. Pvt. Ltd) were disposed of by a judgement by the District Court South Goa. By this judgement insofar as the appellants'' suit is concerned, the learned District Judge has dismissed the suit and the Counter claim filed by defendant No.1 in sofar as para 30(a), (b) and (c) are concerned. However, Counter Claim in terms of para 30(d) has been allowed under which special levy demanded by the defendants quantified from 4th November 1983 are permitted to be recovered from the plaintiffs/appellants with interest at the rate of 12% per annum.

5. The facts as far as the petition goes have also to be noted and that is restricted to the period post the issuance of notification u/s 3 of the DW Inapplicability Act. The argument there is that the decree passed by the learned District Judge may be dismissing the appellant/ plaintiffs'' suit but there is a clear finding therein that post notification u/s 3 of the DW Inapplicability Act, the dues of the DW Board cannot be recovered by the MPT. The cause of action in the petition is, therefore, the stand of MPT, which, according to the said Salgaonkar Bros was to contrary. The stand taken was that despite the notification u/s 3 and the scheme under the DW Act not surviving, yet, by virtue of the DW Inapplicability Act itself, the levy is due and recoverable. It is immaterial that the DW Act is inapplicable. It is this controversy which is essentially projected in the petition and, therefore, there is some reference to the correspondence between the parties and the rival stands and versions. In our view, reference to each and every letter and the reply thereto or counter thereto is, therefore, really unnecessary and if any occasion arises, part of the documents or letters in the compilation of petition would be referred by us.

6. Now the rival contentions:

7. Mr.R.A.Dada, learned Senior Counsel who led arguments on behalf of the appellants in the other appeals and the petitioners, essentially argues that the dismissal of the suit by the learned District Judge is erroneous and contrary to law. It is submitted that this is a First Appeal and, therefore, the decree is open to challenge on both facts as well as law. If the pleadings in the suit are taken into consideration so also the stand of the original defendant No.1 as also the MPT, it would be clear that the same essentially is that the agreements which have been entered into with the trans-shippers are not all inclusive but pertain to only the general levy and welfare levy. The special levy is not covered by that agreement and, therefore, none of the clauses of these agreements would bind them.

8. The submissions of the Counsel, therefore, focus around this basic stand.

9. Mr.Dada submits that the suit was filed for a declaration that Mormugao Dock Labour Board (MDLB) is not entitled to recover from the appellants any levy in excess of that payable under the agreement dated 9th August 1977 as modified by an Agreement dated 23rd September 1983. The other relief was for a permanent injunction restraining the MDLB from recovering any levy other than what is payable under the aforesaid two agreements and there are alternate reliefs as well because the appellants wanted a permanent injunction restraining the MDLB from recovering the amounts under Letter dated 4th December 1984 and Circulars dated 29th December 1984 and the debit notes. There is also a prayer for refund of the amounts already recovered.

10. Mr.Dada submits that the appellants are entitled to these reliefs because the demands made are contrary to the contracts between the appellants and the respondent No.1. The contracts between the parties are the agreements dated 9th August 1977 (pg.343 to 345) modified by the agreement dated 11th November 1980 (pg.346) and further modified by agreement dated 23rd September 1983 (pg.356- 359).

11. It is submitted that under clause 54(2) of the MDLB Scheme, 1965 it was open to the respondents to impose different levies for different employers. That in the light of the power under clause 54(2) and with a view to end the controversy between the plaintiffs and the defendants arising from the imposition of the original levy, the Agreement of 9th August 1977 was arrived at. The appellants were required to be registered as employers in accordance with their Agreement obviously to enable the respondents to justify the imposition of the levy under clause 54. However, this registration was only for the purpose of imposition and collection of "the levy" under the Agreement. The levy under the agreement was composite and all inclusive as held by this Court in Writ Petition No.60 of 1983 and 79 of 1983 decided on 12th October 1984.

12. It is also submitted that the Dock Labour Board, the predecessor of the present respondent, had itself asserted before this Court in Writ Petitions No. 60 of 1983 and 79 of 1983 that there was no discrimination in not charging the transhipper owners with the special levy. No special levy was charged to the transhipper owners and this was the subject matter of complaint by those exporters who used grab cranes and who were asked to pay special levy. In the affidavits filed in this Court in the proceedings of the above writ petitions, the classification between transhippers and the other exporters and the non-levy of special levy on transhippers was justified. The demands impugned are, therefore, clearly unjustified and unwarranted. The impugned order considers this aspect in para 67 itself. This issue has been considered and decided against the appellants in an erroneous manner, inasmuch as, the admitted position as to true and proper interpretation appearing from the affidavits filed by the defendant No.1 in the Writ Petitions has not been considered while deciding this issue. The impuged order is founded on the basis that the Board had not represented to the appellants at the time of entering into agreements that the levy agreed between the parties thereunder was a composite levy and there was no doubt about the same. However if there was any doubt the same can be best resolved by the contemporaneous conduct or understandings of the parties, which is evident from the fact that, admittedly the special levy of Re 1/- per ton was not demanded from and/or imposed upon the appellants either in March 1983 or in July, 1983 though it was imposed on others such as the petitioners in Writ Petition No.60 of 1983 and Writ Petition No.74 of 1983. Further, in the petitions filed by Timblo alleging discrimination i.e. Special levy being imposed on them but not on the appellants, the justification furnished by the defendant No.1 is that the subject agreement of 1977-83 viz., that by reason of that agreement the defendant No.1 is not entitled to charge special levy on the appellants.

13. The 1977 agreement deals with "the levy" and which does not differentiate between different categories of levies. The 1983 agreement is merely a modification of the 1977 agreement, in that it prescribes a new rate and/or new method for calculating the levy. The reference to general and welfare levy is only in the context of calculation or the method of calculation. This calculation is to determine the amount to be paid per ton. The express language of clauses 6 and 7 of the 1977 agreement in relation to the charge or payment of an amount under the scheme being composite and all inclusive, no fresh levy or increase in levy can be made except by agreement.

14. In the impugned judgement the observations have been made on the basis that there is absence of any clause in the 1983 agreement about the levy payable thereunder being a composite levy. Firstly, this observation is contrary to the bare reading of the relevant clause as also the contemporaneous conduct and understandings of the parties. Secondly, in any case, if a further levy was already imposed prior to the signing of the 1983 agreement and if such levy was to be collected, in addition to the levy agreed under the agreement, it was incumbent upon the board to have so clarified in the agreement and not vice versa. In addition, the findings in para 73.8 of the impugned order that the admissions made in the affidavits filed in the Writ Petitions have been explained away as erroneous for the following reasons (i) that the explanation recorded therein is in fact not the explanation given by the witness; (ii) the affidavits filed in the writ petition proceedings state the facts based on the agreements and not the interpretation of clause 54 of the scheme; (iii) the admission of fact is as to the real nature of agreement or real understanding between the parties and the same cannot be wisked away by reference to the interpretation of the clause 54 of the scheme.

15. It is further contended on behalf of plaintiffs/ appellants that if defendant No.1 seeks to justify the validity of voluntary retirement scheme by reference to its powers under clause 7.1(a), (b) and (c) of the scheme and, thereby, suggests that the scheme is not required to be framed by the Central Government, then, the entire gambit of Voluntary Retirment Scheme (V.R. Scheme), including its need, its funding and also other attended aspects are within the authority/ domain of the Board itself and thus the Board cannot seek to wriggle out of its agreement and commitment by contending that the said commitment is beyond the scope of its authority/ power or that the said agreement is in conflict with its powers, under clause 54 of the scheme.

16. Defendants'' contention that the agreements provide for only general and welfare levy is erroneous because the appellants are required to pay under the agreement only "the levy" and it was all inclusive and composite. It is submitted that the Learned Trial Judge has proceeded on the erroneous basis that the agreement of 23rd September 1983 was an agreement whereby the appellants were asked to pay general and welfare levy only. It is submitted that this is based on a total misconception of the scope of the agreement dated 9th August 1977. The agreement of 23rd September 1983 provided for the payment of the levy payable by transhippers to be calculated by applying the formula i.e. adding the general levy and the welfare levy and by dividing it by 1100. No part of the agreement of 23rd September 1983 can be interpreted to mean that the appellants were liable to pay the general and welfare levy. In fact, the levy under this agreement was a composite and all inclusive levy as asserted by the respondents themselves in the Writ Petition proceedings and as held by this Court and the Hon''ble Supreme Court.

17. It is submitted that the agreement of 23rd September 1983 provided an automatic mechanism whereby the levy payable by the appellants would be enhanced with reference to any increase, i.e. it would be computed by taking an enhanced general levy and welfare levy dividing it by 1100. This also had the effect of getting over requirement of mutual consent under the provisions of clauses 6 and 7 of the original agreement of 9th August 1977. The 1977 agreement deals with the levy and which does not differentiate between the different types of levies. The 1983 agreement is merely a modification of the 1977 agreement, in that, it prescribes a new rate and/or new method for calculating the levy. The reference to a general and welfare levy is only in the context of calculation or the method of calculation. The reference is not in the context that other levies are not covered within the ambit of the agreement. The express language of clauses 6 and 7 of the 1977 agreement in relation to the charge or payment of levy under the scheme which obviously covers all the levy or levies under the scheme is not modified or departed and, therefore, without the consent of the parties no fresh levy or increase in levy can be made. It is further submitted that the levy imposed on the appellants has always been characterised as transhipper accord levy. It is evident from the circular/s of the respondents and also from the treatment in the financial accounts.

18. It is further submitted by Mr.Dada that on true and correct interpretation of Resolution dated 29th January 1983 or 14th July 1983 special levy is not recoverable from the plaintiffs as the special levy is recoverable only from registered employers using registered employees from the reserve pool. The Resolutions dated 29th January 1983 and 14th July 1983 specifically apply only to cargo handling activities (leaving aside the controversy whether it applies to manually handled cargoes or all the cargoes) only where registered dock workers supplied by MDLB are employed. The aforesaid resolution of 29th January 1983 whereby special levy was imposed clearly indicate that it was being imposed to meet the expenses of the V.R.Scheme. It is submitted that under clause 54 of the Dock Labour Board Scheme, the special levy was sought to be justified as being required to meet the cost of the V.R.Scheme.

19. In the clarification resolution of 14th July 1983, it was clarified that it was a levy for all cargo handled. The resolution further clarified that it was to be imposed only at one point i.e. the stage of first handling of cargo. It is, therefore, obvious that this was a special levy to be imposed even on its own language and interpretation on registered employers who utilised the services of winch drivers and gang workers in respect of whom the V.R.Scheme was framed. Secondly, it was obvious that the resolution imposed a special levy on cargo which was physically handled by the gang workers or winch drivers who belonged to the reserve pool of the Dock Labour Board. Even on interpretation of V.R.Scheme and particularly clauses 1(b), 3 and 4 thereof, it is applicable only in respect of those dock workers who opt for voluntary retirement scheme from MDLB. Thus in any view of the matter, no special levy can be demanded or collected from transhipper, is the submission.

20. Further, it is contended that the special levy with clarifications was approved at the Board meeting on 14th July 1983. In the same meeting the resolution was passed authorising the Chairman to sign an agreement with the transhipper owners for recovery of the levy based on a formula which was also discussed with the transhippers, viz., dividing the figure of general plus welfare levy by 1100 and charging the same amount as the levy on transhippers.

21. According to Mr.Dada, learned Senior Counsel appearing for appellants factually the plaintiffs do not use the service of registered employees from MDLB and hence special levy is not recoverable from them. He submits that special levy authorised under Resolutions dated 29th January 1983 and 14th July 1983 is only in respect of cargo handled whether manually or by mechanised methods by use of registered dock workers. The plaintiffs do not use the registered employees from the Board or their reserve pool. The plaintiffs are permitted to operate transhippers by Government of India by imposing a special condition that the plaintiffs will have to employ their own set of workmen with their own service conditions. There is a specific distinction between the workmen employed by the plaintiffs who have their separate set of service rules as monthly workers as against the reserve pool workers who are in the pool of MDLB. The fact that special levy is to be charged only when services of registered dock workers are used is also evident from the fact that no such levy was charged by MDLB in respect of cargo handled at MOHP (Mechanical Ore Handling Plant) Berth No.9 which was run by MPT. There was no specific exemption to MPT but special levy was not charged, as there was no use of registered dock workers from the reserve pool. It is, therefore, submitted that the learned Trial Judge was, therefore, under a wrong impression that the plaintiffs/ transhipper owners employed workers from the reserve pool of the Dock Labour Board.

22. It is submitted that the learned Judge, however, while making observations in para 63 of the impugned judgement about the evidence of Gurudas Bene, has overlooked the fact that the evidence given was with reference to three vessels fitted with grab cranes, which were being utilised by the plaintiffs at some stage in the past for the purpose of loading of ore and in respect of this, an appropriate amount as required by the Board was paid. The witness concerned however, has categorically asserted that transhipper vessels Sanjeevani and Swatirani never used workers from MDLB. It is further submitted that the transhippers are registered under the Merchant Shipping Act and have their own complement of crew and workmen who are specially trained. There is no question of the appellants being able to avail of the services of any workers of the respondents. In any event, this issue is irrelevant since the special levy was in fact to meet the expenses of the workmen who were employed with the Board, who opted for V.R.scheme and it was in respect of cargo handled by such workmen. In view of the fact that the appellants do not use the services of registered employees from MDLB special levy cannot be demanded and collected from the appellants/ plaintiffs.

23. Further Mr.Dada submits that retrospective demands are not permissible inasmuch as from January 1983 to July 1983 and till 4th December 1984 no demand was made against the plaintiffs. In fact till November 1984 MDLB was urging that it was rightly not demanding special levy from the plaintiffs. Therefore on 4th December 1984 MDLB could not have made demand for special levy for any dates prior to the date of demand. This retrospectivity of the demand is clearly impermissible. In this view of the matter the demand for special levy retrospectively is clearly impermissible. According to appellants the demand for special levy qua transhippers was made for the first time by letter dated 4th December 1984. This contention has been noted but not dealt with. In the operative part of the order, the levy has been decreed with effect from 4th November 1983. Admittedly, the defendant No.1 had not made any demand for the speial levy from the appellants/ transhippers in 1983 and that is how the petition came to be filed alleging discrimination. In the petition proceedings it is not contended by the defendant No.1 that such a special levy was demanded by them from the appellants or was payable by the appellants. If that was so, the petitions would have come to an end. On the contrary, the defendant No.1 contested the writ petitions and expressly justified its stand by reference to the fact that the transhippers were a class by themselves and they did not utilise the labour/ winch operators registered with the Board. Instead, the transhippers employed the winch operators on a monthly basis who were their own employees. This Court has accepted this position.

24. The next submission canvassed by Mr.Dada is that the demand for special levy is contrary to doctrine of promissory estoppel. The issue of whether levy is payable by transhipper owners was pending in court. There was adjudication by Judicial Commissioner that "Gang Workers" were not covered by the scheme. The petitioners had also filed petition and the same was pending. MDLB and various transhipper owners arrived at a settlement which resulted in entering into 1977 agreements. The plaintiffs withdrew their petition relying upon the promises of MDLB and hence MDLB is estopped from going back upon the promise and demanding any other levy from the petitioners. The plea or the contention of the Board whereby it seeks to retain the benefit of the levies collected under the Agreement, while at the same time attempting it to wriggle out of its obligations i.e., not to impose or increase any levy without the consent of the counter party, in fact amounts to a fraud, inasmuch as based on this representation the appellants were persuaded to withdraw the writ petitions pending in this Court. The observations in the impugned order that the appellants entered into the agreement because they saw a writing on the wall are not at all justified and are in fact contrary to the terms expressly set out in the agreement between the parties. The agreements were thus entered into relying upon the promises. The plaintiffs altered their position to their prejudice, gave up certain accrued rights to withdraw the petition. The MDLB cannot now resile from the promises.

25. The next contention raised is that the demands for special levy are contrary to the doctrine of legitimate expectations. The justifications sought to be given are that it is Board''s statutory power and there cannot be any fetter on the statutory power of the Board to levy, demand and collect this special levy by way of agreements or otherwise. The agreement dated 23rd September 1983 was entered into by the Board signed by the Chairman as required under the Rules after the resolutions dated 29th January 1983 and 14th July 1983 were in place. In the light of the above the said agreement dated 23rd September 1983 came to be executed. It has been noted in the affidavits of MDLB as well as in this Court''s judgement so also in the agreement that the plaintiffs were liable to pay the levy only on account of general levy and welfare levy and the rates fixed under the agreement were final and the levy was all inclusive and comprehensive. The plaintiffs, therefore, cannot be made to pay any other levy except what is contemplated under the agreement. In respect of the previous V.R.Scheme, a special levy was collected. This levy was however not demanded or collected from Transhipper owners. Any demand, therefore, made against the plaintiffs contrary to the aforesaid agreement dated 9th August 1977 as modified by agreement dated 23rd September 1983 is, therefore, clearly unsustainable.

26. The next submission made is that the amounts collected under MDLB (Registered Employees) Voluntary Retirement Scheme 1983 were far in excess of actual costs incurred. It is contended that under the aforesaid V.R. Scheme approved by MDLB it was contemplated that a special levy of Re 1/- per ton be collected from all manually handled cargo, subsequently clarified as all cargoes. The basic thrust of the scheme was to create a fund so that monetary benefits could be granted to those registered employees / winch drivers who take benefit of the scheme. Under the said scheme the registered employees/ winch drivers who have completed 40 years of age were eligible to opt for the scheme. Under the scheme, the winch drivers/registered employees were eligible to get the benefit of voluntary retirement by way of payment of Rs.18,000/- lumpsum and encashment of earned leave. As a matter of fact, this scheme was initially for a period of one year and it is claimed that it has been continued subsequently. It was however discontinued with effect from 31st March 1985. It has also come on record that hardly any registered employees/ winch drivers opted for the scheme. Thus, the collection of funds for creating a fund for grant of benefits under the scheme was, therefore, factually not necessary and the collection of fee for such purpose was, therefore, wholly unwarranted and unjustified. From the annual reports of MDLB it has come on record that MDLB had sufficient funds from their General fund to defray the cost of the scheme, if any, and creation of a special levy was wholly unjustified and unwarranted. There was no deficit, no liability under the V.R. Scheme and there were sufficient funds available. The surplus was intended to be used for the workmen who would retire from 1990 onwards. Thus the V.R. Scheme was clearly not required. Under clause 54 of the scheme, the funds are to be collected only if necessary. In recovering "cost of the scheme" i.e. V.R. Scheme the monies cannot be collected for alleged deficits under various other heads, for which the Board may need funds. The purported imposition of levy and collection is also contrary to and in breach of clause 54(3) of the 1965 scheme, which puts an uper limit/ embargo for such collection.

27. Further, the demand for special levy being for the fee must satisfy requirements and conditions precedent for levy of fee. It is submitted that the special levy is in the nature of fees. The demand for special levy against the transhippers is also unjustified and unwarranted in view of the same being in the nature of fees having no reasonable or rational nexus to the so called services. The special levy was prescribed vide the Board resolutions dated 29th January 1983 under which V.R. Scheme was approved. The object of the scheme is basically to render the services and raise funds for the benefit of the registered employees who may opt for voluntary retirement. Thus, the object of the scheme of collection of such levy is specifically to provide a service by way of superannuation benefits to the registered dock workers. Insofar as the employees of the plaintiffs are concerned, they are regulated by their own set of service rules and conditions including superannuation benefits and the Board is not required to contribute anythig for the benefits of such employees. As a matter of fact there are no services rendered insofar as the employees of the plaintiffs are concerned and hence demand for special levy is unjustified.

28. The evidence led discloses that MDLB had sufficient funds to meet costs of V.R.Scheme without collecting special levy from transhippers. It is submitted that on this basis MDLB had decided not to impose special levy on transhippers. It is on this basis that MDLB made submissions before this Court in the petition proceedings. It is submitted that special levy cannot be justified on some general arguments of insufficiency of funds as it was a specific levy for the purpose of V.R.Scheme. Once the special levy is established to be a fee there must be a broad co-relation between the amount collected and services rendered although there may not be an exact and precise mathematical exactitude. Any broad co-relation also however in this instant case, is completely absent. The impugned special levy, therefore, is clearly ultra vires and unconstitutional and demands made on the plaintiffs are also liable to be set aside.

29. Insofar as the writ petition No.409 of 2001 is concerned, what has been urged in the same is that on 17th August 2001 the respondent MPT''s Advocate called upon the petitioners to pay an amount of Rs.57,81,036 from 6th November 1983 to 30th October 1984. On 16th October 2001 petitioners addressed a letter to respondent MPT asking for a refund of the amount of Rs.1,00,77,672/- erroneously recovered from the petitioners post 31st July 2001 till 1st October 2001 together with interest at 12% per annum in view of the fact that the Agreements have come to an end. On 18th October 2001 the petitioners herein filed First Appeal No.152 of 2001 against the judgement and decree dated 7th July 2001 passed by learned District Judge. On 30th October 2001 an order was passed by this Court recording statement of the Counsel for MPT that the decree will not be executed until the next date of hearing. Debit notes dated 13th, 14th and 15th November 2001 were issued by the respondents to the petitioners calling upon the petitioners to make payment for transhipper levy. On 4th December 2001 the petitioners addressed a letter to the respondents calling upon respondents to refund the amounts collected by them after 31st March 1998. Further on 18th December 2001 the petitioners addressed a letter to respondent MPT with a request to grant permissions for making docking arrangements for shipment on 20th December 2001. On 20th December 2001 a letter was addressed by the respondent MPT to petitioners calling upon the petitioners to make payment as demanded under the debit notes failing which threats were given that the petitioners'' vessel will not be provided port services and also for operation of transhipper. On the same day the respondent disputed the claim of petitioners. On 21st December 2001 the petitioers made payment of Rs.9,38,554/- under duress and under protest and without prejudice.

30. Thus what is urged essentially is that since the letter dated 20th December 2001 was addressed from MPT to the petitioner/ appellant calling upon them to make payments as demanded under the debit notes, failing which their vessels will not be provided port services so also for operation of transhipper, that this petition has been filed. It is alleged that on the date of its filing on 31st December 2001, there were vessels of the petitioners which were due to arrive and there was a threat of further debit notes and non provision of port services which led to the institution of this petition. This petition was admitted on 20th March 2002 and the petitioner was directed to pay disputed amount directly under debit notes as and when the same are raised in respect of tranship levy.

31. It is also stated that in the meanwhile a suit was filed being Suit No.2 of 2002 in the Court of Senior Division, Vasco seeking refund of the sum of Rs.1,19,16,138/- being the amount of levy paid for the period 1st April 1998 to 7th July 2001.

32. Mr.Dada submits that the Inapplicability Act must be seen as nothing but a repealing Act. It repeals the Dock Labour Act 1948 insofar as Major Port Trusts are concerned with effect from issuance of the notification u/s 3 of the said Act. Therefore, this is a complete repeal. If there is a complete repeal and even the scheme which is a delegated legislation would not survive after such repeal, then, all the more no demand could have been raised on the basis of the earlier arrangements and agreements so also the scheme. He has reiterated the grounds which are raised in this petition and urged that the petition be allowed.

33. In support of his contentions, Mr.Dada relies upon following decisions:-

(i)Writ Petition No.60 of 1983 a/w 74 of 1983 decided on 12th October 1984 (Gadgil and Couto, JJ) Goa Bench of this Court.

(ii)1995 Supp (1) SCC 534 (Sociedade De Fomento Industrial (P) Ltd. Vs. Mormugao Dock Labour Board). (iii) Air India Vs. Union of India and others, .

34. As far as the appeal and the petition preferred by M/s.Chowgule is concered, Mr.Sonak appearing on their behalf while adopting arguments of Mr.Dada submits that the Agreement of 1977, 1980 and 1983 have to be read together. They cannot be misread to mean that they cover only specific levies which were prevalent at that time and particularly General and Welfare Levy. There is no question of the position being changed after 1983 agreement as is suggested. He has invited our attention to para 67.2 of the judgement of the learned Distict Judge and submits that this is erroneous and contrary to the agreements and the evidence on record.

35. Mr.Sonak submits that clause 3 of the agreement wherein M/s.Chowgule and the MDLB agreed that revision to be made would be by mutual consent, must be given proper and correct meaning. This is something which was arrived at with the consent of parties. Thereafter, a formula was devised and arrived at in the subsequent agreements and that is for computation and calculation purposes. In these circumstances and when the learned District Judge has rejected counter claim of the Board/ added defendant viz., MPT, then, there cannot be any declaration with regard to clause 3 and particularly that it is void.

36. Mr.Sonak submits that the finding of learned District Judge on the issue of promissory estoppel is completely erroneous. There should be supervening public equity or interest which would enable original defendant No.1 / MDLB/ MPT to wriggle out of the agreements which are binding. The agreements contain a representation to the appellants that the levies insofar as the appellants/ plaintiffs are concerned, would be all inclusive. There is no question, therefore, of revising any of the stipulations between the parties merely because different charges and fees are levied by the MDLB. In any event, there is no plea in the written statement of the original defendant which would enable the Court to proceed on the lines indicated in the impugned judgement of the learned District Judge. The burden is, therefore, wrongly cast upon the appellants/ plaintiffs. Mr.Sonak submits that once the stand of the defendant in the petition filed in this Court being Writ Petition No.60 of 1983 is specific, that the transhippers constitute a different class and they cannot be equated for charge of levies and fees with the non�transhippers, then, relying upon the judgement in that petition and the stand taken on affidavit by the MDLB in those proceedings, the learned District Judge could not have rejected the submissions based on the issue of promissory estoppel. Mr.Sonak has invited our attention to para 27 page 20 of the Judgement in Writ Petition No.60 of 1983 delivered by this Court and page 461 of the paperbook of First Appeal of M/s.Chowgule, which extracts affidarvit of the MDLB and one Omkarappa, Deputy Chairman of MPT in the petition.

37. Mr.Sonak submits that once the counter claim of the original defendant has been rejected with regard to the declaratory reliefs claimed in its favour, then, no further prayers can be granted and the judgement of the learned District Judge, if so read, deserves to be set aside.

38. Mr.Sonak''s arguments are thus treated as common for both First Appeal of M/s.Chowgule and their petition.

39. As far as the First Appeal, which is filed by M/s.Dempo & Company Pvt.Ltd., we have the arguments and written submissions tendered by Mr.Sudin Usgaonkar. The learned Counsel adopts the arguments of Mr.Dada and after inviting our attention to the agreements which were executed with M/s.Dempo and the MDLB, he submits that there was no obligation on the part of Dempo to register themselves. Clauses 2 and 3 of the agreements must be read accordingly. He submits that the finding rendered by the learned District Judge with regard to Bank guarantee is clearly erroneous as no bank guarantee was furnished by the appellants M/s.Dempo. He submits that following questions would arise for consideration:-

(i)Whether the trial court failed to consider that the suit was hit by the doctrine of "Approbate and Reprobate"?

(ii)Whether the trial court failed to consider that the suit was hit by the principle of promissory estoppel?

(iii)Whether the alleged special levy gets support from clause 54 of the 1965 scheme and whether the clause 54 of 1965 scheme cannot be read in isolation but has to be read along with clauses 29 and 39? (iv)Whether the resolutions No.923 dated 29th January 1983 and 935 dated 14th July 1983 based on which "special levy" is demanded, fall de hors the scheme?

(v)Whether in view of 1997 Act known as "Dock workers (Regulation of Employment) (Inapplicability to Major Ports) Act, 1997 the relief prayed claiming the dues is not maintainable?

40. In support of his submissions he relies upon the following

(i)A.I.R. 1956 S.C. 593 (Nagubai Ammal and Ors. Vs. B.Shama Rao and Ors);

(ii) The Regional Manager and Another Vs. Pawan Kumar Dubey,

(iii)A.I.R. 1990 S.C. 1782 (Krishena Kumar Vs. Union of India and Ors.)

(iv) Bajranglal Shivchandrai Ruia Vs. Shashikant N. Ruia and Others,

41. Mr.R.G.Ramani, learned Counsel appearing on behalf of the petitioner in Writ Petition No.3 of 1997 filed by M/s.Sesa Goa, adopts the arguments of Mr.Dada, learned Senior Counsel and submits that the petition questions the collection of the amounts after 1st April 1998, which is the date on which the notification u/s 3 of the Inapplicability Act has been published. He submits that post repeal, the 1998 Act and the Scheme of 1965 thereunder will not survive. Mr.Ramani submits that, therefore, the petitioners have moved this Court without any delay or latches. They have amended the petition within reasonable time. The petition was already filed in 1997 but post publication and the notification u/s 3 of the Inapplicability Act, it came to be amended and now the relief is restricted to the period commencing from 1st April 1998. For this reason section 120 of the MPT Act, 1963 has no application and the relief cannot be denied on the basis of delay and latches or on the ground of limitation.

42. Mr.Nadkarni, learned Senior Counsel appearing for first respondent - original defendant No.1 countered the submission of all the learned Counsel by contending in first appeal and writ petition as under:-

43. Firstly he supports the judgement of the learned District Judge except to the extent of rejection of the counter claim in part. Inviting our attention to the Judgement of this Court in Writ Petition No.60 of 1983 and 79 of 1983 so also the judgement of Hon''ble Supreme Court reported in 1995 SUPP (1) S.C.C. 534, Mr.Nadkarni submits that at para 44 of the written statement the defendant has explained in detail the circumstances in which the submission was made before this Court in the aforesaid petitions that so far as transhippers, levy is composite and all inclusive. He further submits that the agreement dated 23rd September 1983 in clause 2 stipulates the levy rate payable by the owners to the Board in respect of tonnage of cargo handled by the transhippers with effect from January 1972. The said agreement does not preclude the Board from claiming the amount of "special levy" from all the registered employers including the plaintiff. The formula adopted for computation of the amount of levy under the said Agreement dated 23rd September 1983 is linked up only with the amount meant to be charged in lieu of general levy and welfare levy. The said agreement is silent in respect of special levy. As regards this submission, Mr.Nadkarni invites our attention to the judgement para 67-2 and according to Mr.Nadkarni the learned District Judge has dealt with this contention and has rejected the same with valid reasons in particular as follows:-

(a) that the first agreement of the year 1977 refers to only levy but the agreements modified in the year 1983 stipulated that the levy payable was by way of general and welfare levies;

(b) that clause 54 of the scheme stipulates imposition of levy in respect of reserve pool workers;

(c) that the Board could not have certainly foreseen at that time what other type of levies would be required to be imposed in future;

(d) that certainly it is not the case of the plaintiff that at the stage of entering into said agreement, the Board had represented to them that the said levies agreed to be paid by way of general and welfare levies were composite and all inclusive;

(e) that under the agreements entered into the year 1977, the plaintiffs agreed to pay only a levy, in simpliciter and which at the time of modification of agreements was termed as general and welfare levies.

44. Inviting our attention to paras 73-1 to 73-7 of the impugned judgement, Mr. Nadkari submits that the learned District Judge has considered and rejected the plea of the plaintiffs placing reliance on the so called admissions made by Mr.Omkarappa, Dy.Chairman of Board in his affidavit filed in Writ Petition No.79 of 1983 filed by Fomento and Writ Petition No.74 of 1983 filed by Panduronga Timblo Industries wherein it was stated that the transhippers are a class apart and treating the transhippers as a class did not amount to discrimination. The reasons for rejecting this plea are given at para 73-8 of the impugned judgement which are :-

(a) that it does appear that at the time of filing of the said affidavits, collection of special levy from transhipper operators was not in contemplation of the board, inspite of the fact that by resolution of the Board dated 14th July 1983, the same was recoverable from all methods of cargo handling;

(b) that the Board was certainly entitled to show that admissions in the said affidavits of Mr.Omkarappa were mistaken or contrary to clause 54 of the scheme and were on account of mis-interpretation of the powers and duties of the Board to impose levies to meet any cost of operating the scheme;

(c) that the Board cannot be precluded from exercising the powers, which it otherwise has, to impose any type of levy and in these cases special levy, to meet particular cost of the scheme;

(d) that the Board has sufficiently explained that the admissions in the affidavits of Mr.Omkarappa were contrary to the correct interpretation of clause 54 of the scheme;

Mr.Nadkarni seeks to rely upon the judgement reported in AIR 1933 PC 233 (head note (d)), (2009) 5 SCC 312 (paras 28 to 31) and 2010 (3) ALL MR 958 (para 6).

45. Mr.Nadkarni further contends that the contention of appellants that agreements provided only for general and welfare levy is erroneous as the agreement only provided for "levy". The trial Judge proceeded on an erroneous basis that agreement dated 23rd September 1983 provided for general and welfare levy. The levvy imposed on appellants has always been characterised as transhipper accord levy. He further submitted that whether the Trial Judge erred in considering it as general or welfare levy is irrelevant, as what has to be seen in the present matter is whether clause 2 read with clauses 6 and 7 of the Agreement postulates that no other levy chargeable in future shall be payable.

46. Mr.Nadkarni further deals with the submission of appellants that on a true and correct interpretation of resolution dated 29th January 1983 or 14th July 1983 special levy is not recoverable from appellants by submitting that no arguments were advanced and no findings were recorded in the impugned judgement. The judgement of this Court in Writ Petition No.60 of 1983 and the Hon''ble Supreme Court''s judgement later on expressly hold that the

Resolution dated 14th July 1983 is applicable to transhippers.

47. Further dealing with the submission of appellants that factually the appellants do not use services of registered employees from MDLB and hence special levy is not recoverable, Mr.Nadkarni submits that in this regard also no arguments were advanced by the appellants and as such there are no findings recorded in the impugned judgement. In addition judgement of this Court in Writ Petition No.60 of 1983 so also Hon''ble Supreme Court expressly hold that the Resolution dated 14th July 1983 is applicable to transhippers.

48. As regards the submissions of appellants that retrospective demands are imperssible, Mr.Nadkarni submits that in para 74 (page 1158) of the impugned judgement, the submission of the appellants is recorded that special levy would be recoverable only from 14th July 1983 and not from 14th March 1983 and this submission was accepted. In the impugned judgement, in any event, the Court has allowed the recovery in the Counter claim only from 4th November 1983. The appellants are now contending that no demand could be made prior to date of demand viz., 4th December 1984. The grounds in appeal taken that demand could be made only for the period from 4th December 1984 to 31st March 1995 (para 9 Page X Volume I). Para 19 (page 206 Vol.I) of plaintiffs reply to counter claim are than levy is retrospective in nature. The letter dated 4th December 1984 (page 384 Vol.II) states that special levy is payable to all registered employers with effect from 14th July 1983. No bills were submitted in view of the pendency of Writ Petition No.60 of 1983 and legal consideration being pendency. It is therefore decided to claim the amount with effect from 14th July 1983 in view of the Resolution dated 14th July 1983 and observations made in the Judgement of this Court on 12th October 1984. The special levy, therefore, cannot be said to be retrospective as it is the case of respondent that it was payable in view of the Resolution dated 14th July 1983. Only the due amount was claimed for the first time by letter dated 4th December 1984 and that would not make the levy retrospective.

49. In so far as submission of the appellants that the demand of special levy is contrary to the doctrine of promissory estoppel, Mr.Nadkarni submits that the learned District Judge has dealt withthe same in the impugned judgement at para 68-14 and has rejected the same by giving following reasons:-

(a) that the scheme came into force on or about 10th April 1965 and, subsequent thereto, the plaintiffs registered themselves under the scheme pursuant to the interim orders passed by the Hon''ble Supreme Court in the appeal filed by M/s.Chowgule & Co., as well as by the Board;

(b) that admittedly, the Board has been enjoined by clause 54 of the scheme to impose such amount by way of levy in respect of reserve pool workers to be paid by every registered employer;

(c) that after having registered themselves under the scheme by the first set of agreement, the plaintiffs agreed to pay the levy which was payable by them in terms of clause 54(i) of the Scheme read with clause 7(1) (h) and clause 8 (g) of the scheme and which levy was subsequently termed as General and Welfare levies;

(d) that it is not the case of the plaintiffs that at the stage of entering into the first set of agreements in the year 1977 and the third set of agreements in the year September 1983, the Board had represented to them that the said levy payable by them would be composite and all inclusive.

(e) That the Board had power which has been characterised as recreative power in terms of clause 54 of the scheme to impose the payment of an amount by way of levy which may be required to meet different costs of operating the scheme.

(f) that where the plaintiffs and the Board agreed that the plaintiffs would pay the said general and welfare levy, there was no representation from the Board that no other levy at any time would be imposed on them otherwise than stipulated in the said agreement;

(g) that the facts of the cases cited on behalf of the plaintiffs are quite distinguishable from the facts of the case at hand, including the facts of the case of Belapur & Co. (1971 BLR 856) on which much stress was laid by the learned Senior Counsel and wherein there was no express understanding that about 301 acres to be notified were to be exempted under the Maharashtra Agricultural Land (Ceiling) on Holdings Act, 1961.

(h) that there was no understanding so far as the facts of this case are concerned at the time of the execution of September 1983 agreement that General and Welfare levies would be the only levies to be imposed on the plaintiffs for all times to come;

(i) that on the contrary, the imposition of special levy was already under the contemplation of the Board;

(j) that, therefore, the underlying doctrine of promissory estoppel cannot be attracted to the agreements entered into between the plaintiffs and the board, from time to time, since the plaintiffs have failed to prove that the Board has represented to them that no other levy by any claim whatsoever would be recoverable from them.

(k) that, alternatively, the said agreements were entered into between the plaintiff on one hand and the board on the other hand only to settle the pending disputes and only to meet the then existing costs of operating the scheme and not the costs which may be required in future;

(l) that the agreements did not include all levies for all times to come which could not be announced without the consent of the plaintiffs;

(m) that the agreements are silent in respect of special levy could otherwise be imposed on the plaintiffs in exercise of the relevant statutory provisions of clause 54 of the scheme, and apart from the said agreements that the only representation made was that the general and welfare levies would not be increased that there was no representation that no other levy would be imposed by the Board.

(n) The agreements to pay the general and welfare levies did not pro tanto exclude the power to impose any other levy to meet any other cost of operating the scheme. That, alternatively, assuming there were any such representations made as contended by plaintiffs, the board was entitled to change its stand on account of necessity in public interest as superiod equity i.e. To make provisions of VRS 1983 Scheme in particular and finances of Board in general.

50. In so far as the submission of the appellants that the demand of special levy is contrary to doctrine of legitimate expectation is concerned, it is dealt with by learned Counsel appearing for respondents by inviting our attention to the impugned judgement and in particular para 70-1 to submit that the principle underlying the doctrine of legitimate expectation has no application to the facts of the case of the plaintiffs as all that the plaintiffs could legitimately expect was that they would pay the levies imposed and as agreed upon under the agreements. That the plaintiffs could not certainly and legitimately expect that no other levy for any other purpose would be levied by the Board for all times to come and that there was also a change in the fact situation of the finances of the Board at the time of the imposition of special levy.

51. As regards the submission of appellants that the amounts collected under MDLB (Registered Employees) Voluntary Retirement Scheme 1983 were far in excess of actual costs incurred, is concerned, the learned Counsel for respondents invited our attention to para 19 of the written statement and submitted that it is not correct that V.R. Scheme 1983 was discontinued on 31st March 1985. It is further stated that special levy of Re 1/- per ton was discontinued with effect from 1st April 1985 but the process of voluntary retirement continued (pg.156 of written statement). In cross examination of DW 3- Mr.G.L.Viegas (page 755) the witness has stated that "the total sum paid under voluntary retirement scheme where it was closed was Rs.1,58,73,848.55 paise". It is, therefore, not correct to contend that amount spent under 1983 V. R. Scheme was only Rs.9,81,000/-. In para 19 of the written statement, it is explained why the special levy was necessary to be collected.

52. As far as the submission of appellants that V.R.Scheme dated 29th January 1983 is ultra vires and unconstitutional the learned Counsel for respondents invited our attention to para 37 of the written statement (pg.164), Sections 2(2, 3, 4 and 8A of the Dock Workers (Regulation of Employment) Act and contended that in exercise of powers conferred by section 3 and section 4(1) of the 1948 Act, the Central Government made a scheme for the Port of Mormugao viz., Mormugao Dock Workers (Regulation of Employment) Scheme, 1965. The V.R. Scheme, whether called a scheme or not, is in nature of an administrative action taken by the Board in discharge of its functions under the said statutory scheme 1965 and such a V. R. Scheme can never be considered as a scheme required to be made by the Central Government under sections 3 and 4 of the 1948 Act. He further submitted that just because the said administrative action is named as a Scheme, it cannot be considered as a "scheme" envisaged u/s 2(e) of the 1948 Act. As regards this submission he invites our attention to impugned judgement para 72-3 and the reasons given by the learned District Judge as:-

(a) that the main question in the suits had to be whether the Board had at all the power to impose the special levy as contemplated by clause 54 of the Scheme and not whether the Board had any power to make the VRS 1983 scheme;

(b) that the VRS (1983 Scheme) is a measure designed by the Board to reduce the dock workers from the reserve pool which become surplus on account of mechanisation at the port, including mechanisation by the plaintiffs with their transhipper;

(c) that the VRS is not a scheme as contemplated by section 3 and 4 of the Act so as to be made by the Government which would require previous publication;

(d) That the Board''s own administrative measure to reduce its employees and which the Board was competent enough to adopt since the Board has the power to recruit and register the workers and employers or to remove either temporarily or permanently as contemplated by sub-clauses 1(a), (b) and (c) of Clause 7 of the Scheme read with sub-section (1) section of the Act;

(e) The Board was certainly competent to adopt the said 1983 Scheme with a view to bring about reduction of its work force;

53. As regards the submission of appellants regarding demand for special levy being a fee must satisfy requirements and conditions precedent for levy of fee, it is dealt with by respondent''s Counsel by inviting our attention to para 75-3 of the impugned judgement (page 1162) and contended that the board has proved both the necessity of imposing the levy and existence of quid pro quo to impose the same assuming that was necessary to prove. The learned Distrcit Judge has relied upon the statement of DW-1 Mr.Omkarappa, Deputy Chairman of the Board and discussed the same at length. A reference and reliance has also been placed on the statement of the Secretary of the Board, DW-3, Mr.Viegas as also the admission of PW-1 Mr.Kuwelkar, Manager of M/s.Chowgule & Co., that the finances of the Board were in deficit and he did not dispute the correctness of the audit certificate. He further contended that the learned District Judge concluded that the amount of levies collected by way of general and welfare levies was not sufficient to meet the cost of operating the scheme and the Board rightly thought to collect special levy for a limited period from all registered employers and that, as rightly pointed out on behalf of the Board, the special levy could be collected by the Board to meet the cost of operating the V.R.Scheme of 1983 or the scheme as a whole. He further sought to place reliance on the judgements reported in AIR 2006 S.C. 2897 (M/s.Vijayalaxmi Rice Mill & Ors. Vs. Commercial Tax Officers) and AIR 2001 S.C. 1010 (B.S.E.Brokers Forum Bombay and Ors. Vs. Securities and Exchange Board of India and Ors).

54. As regards the submission of appellants that the any demand after 31st March 1998 is unjustified, Mr.Nadkarni, learned Counsel for respondents invited our attention to the Civil Suit No.7 of 1985 and the prayers therein to state that the prayers (a) and (b) are for declaration and injunction to recover any levy in excess of amounts provided in agreement dated 23rd September 1983. Prayer clauses (c)(i) to (iii) are alternative to prayers (a) and (b). Prayer clause c(iii) for refund of entire amount of levy recovered, is consequential to grant of prayer c(i) which is for declaration that 1956 scheme does not apply to the plaintiffs. There is no prayer for refund of amounts paid as per the agreements dated 23rd September 1983 either prior to 1st April 1998 or thereafter. The plaintiffs amended the plaint as per order dated 8th January 1999 (pg.69 Vol.I). In paras 1 to 3 the only submission is that the claim if any or any alleged dues of the MDLB cannot be recovered by the Board of Trustees of the Port of Mormugao. It was neither pleaded nor was it the case of the plaintiff that in view of the 1997 Inapplicability Act, no amount of levy is payable by them under the Agreement dated 23rd September 1983 or that the said agreement had come to an end after the 1997 Inapplicability Act was given effect to from 1st April 1998. On the basis of the amended pleadings, an additional issue No.26 was framed on 12th February 1999 which reads as under:-

Issue No.26: Whether the defendant No.1proves that in view of the merger of original defendant No.1 with the present defendant No.1, the dues of original defendant No.1 can be recovered and continue to be recovered by the present defendant No.1.

However, at the time of oral arguments, it is argued that any demand after 31st March 1998 in view of the 1997 Inapplicability Act is unjustified and that no levy whatsoever is payable and amounts collected by the Board are liable to be refunded. The trial court at page 1177 Vol.V has rightly held that the Counsel for plaintiff has not pointed out any prayer in the plaint to this effect. The trial court has rightly rejected the contentions of the plaintiffs in view of section 4 of the 1997 Inapplicability Act. The contention of the appellants that "ad hoc" amounts are liable to be refunded, is fallacious inasmuch as explained hereinbefore, the amounts paid under the Agreement dated 23rd September 1983 were never a subject matter of Civil Suit No.7 of 1985. The further contention of the appellants that post 1st April 1998, the transhipper levy was continued to be paid because of ad-interim order dated 11th February 1985 and interim order dated 20th December 1986 and therefore plaintiff is entitled for restitution, is also fallacious and without any substance. The interim orders dated 11th February 1985 and 20th December 1986 are at pages 136 to 143 of the Writ Petition No.409 of 2001. The plaintiffs had filed civil Misc.Application No.37 of 1985 in Civil Suit No.7 of 1985 dated 11th February 1985 for interim reliefs a(i) to a(iii). All the said reliefs relate to the special levy of Re 1/-. The trial court was pleased to pass an ad-interim order dated 11th February 1985 which reads as under:-

There is no prayer against respondent No.1. Issue notice with a direction to respondent No.1 to maintain, in the meantime, the status quo till the decision of this application on merits.

Special levy amounts were not paid by the plaintiffs to the defendants. Subsequently, the consent terms dated 20th September 1986 (page 141 of Writ Petition No.409 of 2001) were filed whereby it was agreed that the ad-interim order to continue pending hearig and final disposal of the suit upon the plaintiffs furnishing a bank guarantee for Rs.5.45 lakhs and a bond for Rs.16.35 lakhs with interest at 12% per annum from 11th February 1985. The said guarantee and bond amounts related to the special levy payable by the plaintiffs at Re 1/- per ton. According to the learned Counsel for respondents the submission of the appellants that post 1st April 1998, the transhipper levy was continued to be paid because of the aforesaid interim orders dated 11th February 1985 and 20th December 1986 is quite strange and shocking. He further submits that at para 79 of the impugned judgement the learned District Judge has answered all the issues as framed in the respective suits followed by a brief summary of the conclusions arrived at in the said judgement. The trial judge has given findings on all the issues as framed in the respective suits after proper consideration of the legal submissions as made by Counsel for the respective parties and noting various judgements of the Hon''ble Supreme Court relied upon by them in support.

55. Learned Counsel for respondents further states that in the instant case as may be seen from the impugned judgement, the findings given are neither based on conjectures or surmises nor do they suffer from any material irregularity. On the contrary the inferences and conclusions drawn by the learned District Judge naturally or logically flow from the proved facts and correct application of the law as settled by the Supreme Court in various judgements referred in the impugned judgements. In the circumstances, Mr.Nadkarni further submits that this Court should not interfere with the findings of the trial court and the first appeal be dismissed.

56. As far as Writ Petition NO.409 of 2001 is concerned what Mr.Nadkarni submits is that the basis of the petition is that pursuant to the Inability Act, respondent No.1 cannot demand any payment after 31st March 1998 under the Agreements which the petitioners had executed with the erstwhile MDLB for payment of transhipper levy and, therefore, such demands are without any authority of law. However, the position is that even after the Inapplicability Act came into force with effect from 1st April 1998 and even thereafter, the petitioners continued to pay the transhipper levy under the said agreements. The petitions are filed only in December 2001 i.e. More than three and half years after the MDLB merged with the MPT and, therefore, the petition suffers from gross delay and latches.

57. Further, Section 4(1) of the 1997 Act, inter alia, in its clause (b) provides that "all contracts entered into and all matters and things engaged to be done by, with or for the Dock Labour Board, immediately before such day for or in connection with the purposes of Dock Labour Board, shall be deemed to have been incurred, entered into and engaged to be done by, with or for the Board." The expression Board as defined in section 2(b) of the said 1997 Act has the same meaning as in the Major Port Trust Act, 1963. There is no challenge either in the petition or otherwise to the above provision.

58. Section 3 of the 1997 Act contemplates that before notifying that the provisions of the Dock Workers (Regulation of Employment) Act, 1948 shall cease to have effect in relation to that Major Port, a settlement had to be arrived at. Such a noification was published in the Gazette of India dated 17th March 1998. Such a settlement as required was entered into on 4th February 1998 and the terms of settlement are as set out in the Memorandum of Settlement. As may be seen from the terms of settlement in the Memorandum of settlement, more particularly read with Annexure "A" thereto, viz., "the scheme for the merger of Mormugao Dock Labour Board with Mormugao Port Trust", Clause D(5) thereof stipulates that "All daily rated registered workers of Mormugao Dock Labour Board will be brought under the monthly wage system from the date of the merger of MDLB workers with Mormugao Port Trust and consequently the existing practice of working out the daily wage from monthly pay will be discontinued. However, the emoluments including the basic pay and D.A., in the pay scales on the day of merger of MDLB workers in MPT will be protected in absolute terms. The shortfall in the basic pay plus DA consequent on conversion from daily rate to monthly rate will be considered as personal pay for all purposes, including terminal benefits, retirement benefits including pensionary benefits, except for the purpose of allowances and refixation of pay."

59. Further Clause E(1) of the Scheme stipulates that "As far as possible, the cargo handling labour department will be required to be self sufficient one and its revenue will consist of bills raised on the Registered Stevedores." The petitioners are one of such Registered Stevedors/ Employers.

60. Clauses E(4), (5), (6) and (7) respectively, provide that "(4) The financial discipline of the Cargo Handling Labour Department will have to be continued to be maintained separately having the cost centre, income and expenditure and balance sheet of the department in respect of its functions"; "(5) To ensure flexibility and financial adjustment, in place of the existing rates of levy, a new consolidated rate per tonne for each commodity will be fixed and intimated to the trade eventually"; "(6) There will be separate Provident Fund, Pension Fund and Gratuity Fund to secure the social security payments after retirement. These funds will be maintained separately and appropriately reviewed from time to time upto the requirement" and "(7) The system of obtaining security deposit by way of Bank Guarantee from the registered Stevedors shall be continued under the Cargo Handling Labour Department".There is no challenge in the petition to the above settlement or the scheme or any clauses thereof.

61. It is further submitted that as may be seen from Clause (e) of sub-section (1) of section 4 of the Dock Workers (Regulation of Employment) (Inapplicability to Major Ports) Act, 1997 the protection envisaged to employees and workers of the Dock Labour Board is that they shall hold office or service under the Board (MPT) on the terms and conditions which are not in any way less favourable than those which would have been admissible to them if there had not been transfer of their services to the Board. However, under the scheme additional benefits have been provided in Clause D(5) and the daily rated registered workers have been brought under monthly wage system.

The Memorandum of settlement and the Scheme agreed to thereunder is u/s 2(p) and section 18 of the Industrial Disputes Act, 1947. Besides the three workers'' Unions referred to therein the Stevedores'' Association was also duly represented. The transhipper owners including the petitioners are members of the Stevedores Association.

62. Under the terms of this settlement a scheme for the merger of the MDLB with MPT was agreed upon. Under this scheme the Board of the MDLB is to be a new 10th Department designated as the Cargo Handling Labour Department under the Major Port Trust Act, 1963. The department has to supply labour to the registered stevedores as was being done by the MDLB formerly. It is also provided that the existing rules and regulations in this regard relating to booking, calculation of piece-rate, incentives with the datum, salary, processing, maintenance of service records will continue to be followed. It is also provided that all daily rated registered workers of the MDLB will be brought under the monthly wage system from the date of merger. These and other provisions of the Scheme show that the functions of the former MDLB will now be carried out by the new 10th Department of MPT. Only after the scheme was settled, the Central Government notified the inapplicability of the provisions of the Dock Workers (Regulation of Employment) Act, 1948 by the aforementioned notification dated 17th March 1998.

63. The provisions of section 4 of the Act indicate that the Board of the Major Ports now becomes for all practical purposes also the former Dock Labour Board and there is a statutory transfer of all property, liabilities, obligations, contracts, legal proceedings and services of employees from the Dock Labour Board to the Board of MPT. Clause 4(1)(b) specifically provides that on the appointed date, which in this case is 1st April 1998, all contracts entered into by the former Dock Labour Board immediately before that date for and in connection with the purposes of the Dock Labour Board shall be deemed to have been entered into by or with the Board of the MPT. It cannot be disputed that the agreements entered by the transhipper owners with the former MDLB were "for or in connection with the purposes of the Dock Labour Board.". Hence, these agreements continue to operate and bind the respective transhipper owners and are deemed to be now entered into by them with the Board of MPT.

64. The precise purpose of section 4(1)(b) is to save such contracts even though the former Dock Labour Scheme does not survive with effect from 1st April 1998 and the Dock Labour Board is now merged into the Board of MPT. A new Scheme embodied in the settlement is arrived at between the parties u/s 3 of the Act. Sections 3 and 4 have to be read together and the combined reading of the two sections result in a statutory substitution of the settlements embodying the new scheme for the old dock labour scheme and the saving of all existing obligations and liabilities and contracts of the former MDLB in favour of the Board of MPT. It can hardly be argued that the transhipper owners as employers or stevedores are unregulated in the employment of dock labourers. If they had not been governed by the agreements, they like other employers would have to be regulated by the new scheme operated by the Board of MPT. The agreements will continue to operate in the same way in which they operated prior to 1st April 1998 but with the contracting party being substituted as the Board of MPT instead of the MDLB. Consequently, the transhipper owners will have to continue to pay the agreed levy under these agreements.

65. As may be seen in clause 4 of the Introduction to the Scheme, the Scheme is drawn incorporating the salient features for the merger with a view to ensuring, inter alia, greater regularity in employment. The scheme in its clause (1) stipulates that the object of the scheme for the merger of the Mormugao Dock Labour Board with the MPT is to bring all cargo handling workers in the Port, including docks, under one organisation by creating a 10th Department of MPT. The functions and obligations as set out in the scheme in its clause (3) provides that the Department will supply labour to the registered stevedors as is being done by the Mormugao Dock Labour Board presently. So also clause (4) thereof provides that the existing Rules and Regulations in this regard, relating to booking, calculation of piece-rate incentives with the datum, salary processing, maintenance of service records will continue to be followed.

66. The Memorandum of Settlement including the Scheme annexed thereto has been arrived at in accordance and in compliance with the statutory provisions of section 3 of the 1997 Act which mandates that a notification contemplated thereunder can only be issued by the Central Government after settlement is arrived at between the Dock Labour Board of any major Port, its workmen and the management of the Major Port in accordance with the provisions of the Industrial Disputes Act.

67. The Scheme which is annexed to and is an integral part of the Memorandum of Settlement also provides that all contracts entered into and all matters and things engaged to be done by, with or for the Dock Labour Board immediately before such day, for on in connection with the purposes of the Dock Labour Board shall be deemed to have been incurred, entered into and engaged to be done by, with or for MPT.

68. The Agreements entered into between the petitioners and former MDLB are not unrelated to the Dock Labour Scheme. They were made for and in connection with the purpose of the former MDLB. The petitioners as also other transhipper owners were required to register themselves as registered employers within the meaning of 1965 sheme.

69. It appears from the averments in ground 3.4 of the petition that the petitioners are purporting to rely on an alleged finding by the District Court at Margao in the Civil Suit No.7 of 185 that the agreements have come to an end on 31st March 1998. As may be seen from the Memorandum of Cross Objections (pg.67) the respondent No.1 by abundant caution has prayed that "the finding of the learned Trial Judge at para 79 at page 116 of the judgement "that the suit agreements have also come to an end." be reversed".

70. It is most pertinent to note that the subject matter in Civil Suit No.7 of 1985 filed by the petitioners herein was their challenge to the special levy demanded of them by the then Mormugao Dock Labour Board at the rate of Re 1/- per ton for the period from 14th July 1983 to 31st March 1985 in exercise of powers under clause 54 of the Mormugao Dock Workers (Regulations of Employment Scheme), 1965 towards the expenses which the Board was required to incur against the V.R. Scheme which was resolved to be introduced in or about 1983 and applied to the registered dock workers under the said scheme who otherwise were in the reserve pool and as such were assured of daily wages for minimum period of 21 days in a month payable by the Dock Labour Board from the contribution made by the registered employers under the scheme by way of levy imposed on them. As against this, the controversy raised in this petition is in respect of transhipper levy payable under the Agreement after 1st April 1998.

71. It was the case of the petitioners as plaintiffs in the said suit that they were not liable to contribute by way of special levy towards the V.R. Scheme inasmuch as no additional levy could be collected from them outside the Agreement executed by them with the Dock Labour Board. The petitioners'' case in the suit was that their liability to pay to MDLB was only restricted to the Agreement executed by them with the MDLB.

72. Learned Counsel for respondent No.1 further submitted that the learned District Judge by his judgement and decree dated 7th July 2001 was pleased to reject the contention of the petitioners herein and uphold the case of respondent No.1 herein who as defendants had filed the counter claim in the said suit for a decree against the plaintffs to recover the special levy from them. It appears that in support of their case the petitioners are heavily relying on an alleged finding by the District Judge in his judgement dated 7th July 2001 in Civil Suit No.79 of 1985 (para 79-2). The aforereferred finding of the learned District Judge has been challenrged by respondent No.1by abundant caution in the cross objection.

73. It may be pertinent to note that in para 77 of the impugned judgement the learned Dist.Judge has recorded the submission of the Counsel for plaintiffs! petitioners that "In view of the provisions of Dock Workers (Regulation of Employment) (Inapplicability to Major Ports) Act, 1997, no levy whatsoever is payable and the amounts so collected by the Board are liable to be refunded." This submission has been rejected by the learned Distroct Judge at para 77-1 by expressly giving a clear finding that "the contention of learned Senior Counsel for the plaintiffs deserves to be rejected." The learned Counsel further submits that the subject matter of the suit was "special levy" and not "transhipper levy".

74. The petitioners in Writ Petition No.409 of 2001 have also filed a Special Civil Suit No.2!2002!A for a decree against the respondent No.1 herein to pay to the petitioners a sum of Rs.1,19,16,134!- with interest, which amount represents the payments made by the petitioners post 31st March 1998 till July, 2001 as against the transhipper levy under the Agreement executed by them with MDLB. Therefore, it is not legally open for petitioners to agitate the same controversy both in a civil suit as also in petition. Further the learned Counsel for respondent has sought to rely upon paras 3 and 4 of the affidavit dated 1st February 2002 (page 132) so also the interim orders passed in the Civil Suit No.7 of 1985.

75. In support of his submissions in the First Appeal No.152 of 2001 and Writ Petition No.409 of 2001, Mr.Nadkarni has relied upon the principle that finding of the learned District Judge cannot be a foundation of a claim in the subject petition. The petitioners will have to independently prove that by virtue of the Inapplicability Act, the amounts cannot be recovered by the MPT. That they have failed to establish and prove this allegation. Further this petition should not be entertained because there is suppression of vital documents by the petitioners. That document is an agreement of 1997. Mr.Nadkarni submits that the interim order in the Suit bearing No.7 of 1985 has been misused and mis-quoted by the petitioners. Mr.Nadkarni has taken us through the petition and the annexures thereto and the affidavit filed in reply by MPT. Mr.Nadkarni also submits that the petitioners have deliberately not produced a copy of the said Civil Appeal No.157 of 1975 and this suppression should be viewed seriously and no reliefs be granted to them.

76. In all fairness Mr.Nadkarni has stated that the cross objections and the cross appeals by the MPT are pressed only to the extent of the aforenoted finding of the learned District Judge in the Counter Claim. The MPT does not wish to press the cross objections and the cross appeals to the extent of the challenge to clauses 6 and 7 of the agreements of 1978 and 1983. The only surviving cross objection is in relation to the refusal of the learned District Judge to permit the MPT to recover the amounts. The counter claim should have been decreed accordingly.

77. Mr.Nadkarni has also taken us through the Supreme Court order in Civl Appeal No.1472 of 1986 and it is urged by him that section 46 of the MPT Act is sole repository of the power conferred on the Board. This Court''s judgement in earlier Writ Petition No.187 of 1982 has thus not been upheld by the Hon''ble Supreme Court.

78. Additionally, it is submitted that it was not necessary that the learned District Judge to travel beyond the pleadings. There was no pleading that the agreements do not survive post the Inapplicability Act. There is no issue framed and, therefore, the ultimate finding is contrary to the pleadings. The District Judge has erred in law and, therefore, this Court should allow the cross objection to this extent.

79. Mr.Nadkarni also submits that as far as the judgement of this Court in Writ Petition No.60 of 1983 is concerned, it would be apparent that there was an amendment carried out to the said petition on 5th July 1983. However, on 14th July 1983, a clarification was given by the Board that levy will apply to manually handled cargo. In this behalf, he invites our attention to paras 26 and 27 of this Court''s Judgement in the case of Fomento (supra). It is submitted by him that the question of promissory estoppel would not arise and the arguments of Mr. Dada on that point are untenable. There is no question of any ambiguity or vagueness in the agreements and, therefore, subsequent conduct is an irrelevant matter. As far as this aspect of promissory estoppel is concerned, the intention of parties at the time of execution and performance is relevant and not otherwise. Mr.Nadkarni has taken us through the agreements and has contended that there was nothing in them which would prescribe charging of special levy and in that behalf, he takes us through clauses 3 and 7 of the 1978 Agreement and 1983 Agreement as well and submits that the word "levy" and "this levy" appearing in these clauses are relatable to general and welfare levy. Thus, the intention of parties was to settle the disputes in the petition which was filed against MDLB. There was no special levy in 1977. He submits that the 1983 agreement refers to a formula which is substitute of clause 3 of the 1978 Agreement. There is no representation in the 1977 and 1983 Agreements that the levy is composite and all inclusive. There is absolutely no material other than the judgement in Fomento''s case. Even the reliance on the affidavit of Mr.Omkarappa in Writ Petition No.60 of 1983 is misplaced. The special levy was not an issue in Fomento''s case at all. There is absolutely no admission in the pleadings and in that behalf he has taken us extensively through the judgement in Fomento''s case and the affidavit filed in reply so also the explanations in the written statement.

81. For all these reasons Mr.Nadkarni submits that both the first appeal as well as the petition may be dismissed.

81. Mr.Nadkarni has also relied upon sections 46 and 120 of the MPT Act 1963 in support of his first submissions and also the following decisions in support of his other submissions in all matters:-

1. W.P.187 of 1982 a/w. W.P.209 of 1982 (decided on20th & 23rd December 1984 - Goa Bench.

2. Civil Appeal No.1472 of 1986 (11th September 1996 by Supreme Court - Coram :M.M.Punchhi & Mrs.Sujata Manohar, JJ);

3. V.M. Salgaocar and Bros. Vs. Board of Trustees of Port of Mormugao and Another,

4. Special Civil Application (Writ Petition No.47 of 1971 (Chowgule & Company Pvt. Ltd. Vs. The Mormugao Dock Labour Board and Anr.) decided on 19th August 1974 at Panaji by Judicial Commissioner.

5. AIR 1994 S.C. 853 (S.P.Chengalvaraya Naidu (dead) by Lrs. Vs. Jagannath (dead) by Lrs.)

6. (1995) 4 SCC 734 (Air India Vs. Union of India & Ors.)

7. AIR 1933 Privy Council 233 (Florrie Edridge and Ors. Vs. Rustomji Danjibhoy Sethna)

8. Vasantkumar Radhakisan Vora Vs. The Board of Trustees of the Port of Bombay,

9. Ester Industries Ltd. Vs. U.P. State Electricity Board and Others,

10. Delta International Limited Vs. Shyam Sundar Ganeriwalla and Another,

11.A.I.R. 2001 S.C.1010 (B.S.E.Brokers Forum Bombay Vs. Securities and Exchange Board of India & Ors.)

12.A.I.R. 2006 S.C. 2897 (M/s.Vijayalashmi Rice Mill & Ors. Vs. Commercial Tax Officers, Palakol)

13. Bank of India and Another Vs. K. Mohandas and Others, (along with other matters)

14. L.N. Aswathama and Another Vs. P. Prakash,

15.2010 (3) ALL M.R. 958 (Geo-Group Communications INC Vs. IOL Broadband Ltd.)

`

82. As far as the First Appeal No.183 of 2001 and Writ petition filed by M/s.Chowgule is concerned, Mr.Nadkarni submits that in the Civil Suit No.10 of 1985 the plaintiffs (Chowgule & Co. Pvt.Ltd.) prayed, inter alia, for a declaration that (i) the first defendant is not entitled to recover in respect of the Ore handled through MOHP any amount in excess of 7 paise per metric ton and (ii) in respect of Ore handled through Maratha Transhipper, the first defendant is not entitled to recover any amount in excess of the amount payable under the Agreement dated 23rd September 1983.

83. The appellant herein filed a counter claim praying, inter alia, in prayer clauses (f) and (g) as follows:-

(f) That this Court be pleased to order and decree the plaintiffs to pay to this defendant a further sum of Rs.7,05,893.98 along with further interest on principal sum of Rs.6,30,055.62 at the rate of 12% per annum from the date of filing of the counter claim till the payment"

"(g) That this Court be pleased to order and decree the plaintiffs to pay to this defendant, all future amount of levy on par with levy payable by the transhipper owners including the plaintiffs themselves under the Agreement dated 23rd September 1983 in respect of cargo handled at Mechanical Ore Handling Plant at Berth No.6 pursuant to the debit notes to be submitted by the operations from October 1986 till the disposal of the suit with interest at the same rate of 12% pa from the date the amount became due till date of payment".

84. As may be seen from the said pleadings, an agreement was executed between the plaintiffs and the defendant on 18th December 1980 in respect of levy pertaining to operations of Mechanical Ore Handling Plant (MOHP) at Berth No.6 whereunder the plaintiff had agreed to make payment of levy to the defendant at the rate of 7 paise per ton in respect of quantum of Ore handled through the said MOHP at Berth No.6 with effect from 1st January 1969. As the levy payable by the transhippers at the Port of Mormugao was increased by mutual consent to 21 paise per ton with effect from 14th August 1980, the defendant called upon the plaintiffs to increase the amount of levy payable in relation to MOHP at Berth No.6 at the same level as the transhipper owners were paying. As the plaintiffs (respondents herein) refused to cooperate, the defendant Board passed a resolution No.991 in its meeting held on 10th January 1985 to the following effect:-

Resolution No.991:- Resolved that the levy charges payable in respect of tonnage handled at the Mechanical ore handling plant at berth No.6 by M/s.Chowgule & Co. Pvt. Ltd be enhanced to the level of levy charges payable in respect of Transhipper owners with immediate effect. Further resolved that whenever there is a change in the rate of levy in respect of transhippers, the same shall mutatis mutandis be made appliable to the tonnage handled at Berth no.6 through the Mehanial Ore Handling plant of M/s.Chowgule & Co. Simultaneously."

85. With effect from 10th January 1985, the defendant had submitted the debit notes to the plaintiff by computing the amount of general levy and welfare levy increase with the formula set out in the Agreement dated 23rd September 1983 which works to somewhere between 47 paise to 52 paise per metric ton. The last debit note submitted to the plaintiff prior to the filing of the counter claim was on 15th October 1986 for a total amount of Rs.6,30,055.62 paise exclusive of interest.

86. The appellants, therefore, in prayer clause (f) of the said counter claim prayed for a decree of Rs.7,05,893.98 paise which included the principal amount of Rs.6,30,055.62 paise along with 12% interest till the date of filing of counter claim. Further interest of 12% was also prayed for in prayer clause (f) of the counter claim.

87. The learned Trial Judge by judgement and decree dated 7th July 2001 dismissed the Civil Suit No.10 of 1985 in terms of prayers at para 60(a), (i), (ii), (b) and (c) with costs. Further the counter claim is dismissed in terms of para 36 (a), (b), (c) and (d) but allowed in terms of prayers (e) and (f) to the extent as stated in the operative part of the said judgement. (pages 167-168 of F.A.183/2001).

88. The appellants further submitted that although the learned Trial Judge has allowed the counter claim in terms of prayer at 36(f) it has failed to allow the counter claim in terms of prayer at 36(g) thereof. In fact the learned Trial Judge has omitted to consider the prayer clause 36(g) of the Counter claim. In the oral evidence statements were produced in the evidence of Mr.Omkarappa on behalf of the defendants, giving particulars of the differential amounts payable by the plaintiffs in respect of MOHP at Berth No.6. The said statements have been taken on record and marked as Exh.D-35 and Exh.60. The said statements were never disputed by the plaintiffs and various debit notes in that behalf have been produced by the defendants.

89. The total amount payable under prayer clause 36(g) was quantified to a sum of Rs.11,22,725.46 p. As may be seen from the said statements. The Counsel for appellants further submits that the learned Trial Judge erred in now allowing the prayer clause at para 36(g) of the counter claim for an amount of Rs.11,22,725.46 paise along with 12% interest.

90. It is for all these reasons, Mr.Nadkarni submits that this Court should grant prayer clause 36(g) of the Counter claim filed by the appellants in Civil Suit No.10 of 1985 for the same reasons on the basis of which Counter claim in prayer clause (f) was allowed.

91. As far as the petition i.e. Writ Petition No.33 of 2002 all that is argued to demonstrate a distinct factual position is that the petition is filed only in January 2002 which is more than three and half years from 1st April 1998. Other arguments are common to the case in First Appeal No.152 of 2001 and Writ Petition No.409 of 2001.

92. As far as First Appeal No.52 of 2003 is concerned, viz., of M/s.Salgaonkar Bros and M/s.Chowgule, additionally submits that in this case there is an admission of Dempos in the oral evidence that it is registered with the Board. He invites our attention to pages 345 and 347 in Vol.II of the First Appeal No.52 of 2003 in this behalf.

93. Mr.Usgaonkar while countering these submissions, submits that it is improper to read the evidence in this fashion and particularly in an isolated manner. The oral evidence will have to be read in its entirety and as a whole. So read, no such admission can be culled out.

94. As far as Writ Petition No.3 of 1997 which is filed by M/s.Sesagoa is concerned Mr.Nadkarni would contend that M/s.Sesagoa is not the plaintiff in any suit and it had not filed any suit but it had filed a petition in this Court, which petition deserves to be dismissed because these relates to the transhipper m.v.ORISSA acquired by the petitioners to operate at the port of Marmugao. Mr.Nadkarni submits that it cannot be disputed that this transhipper "m.v.ORISSA" is a "pier" as defined in section 2(p) read with the explanation added thereto, in the MPT Act, 1963. As such the same could be allowed to be brought in the port area and put to use as a pier only on the previous permission in writing of the Board and subject to such conditions, if any, as the Board may specify. The power of the Board to cause removal thereof are self-cotained in section 46 of the MPT Act, 1963.

95. The Government of India granted approval for the acquisition of the transhipper vessel subject to certain terms and conditions as stipulated in its letter dated 16th September 1991 (Exh.R-1 page385). Condition (j) of the approval dated 16th September 1991 provided that before bringing the new transhipper into the port, the transhipper owner shall take permission of the board u/s 42(iii) and 46(i) of the MPT Act and enter into an agreement with the Board. Condition (p) specifically provided that the owners shall also undertake to make the payments to the Mormugao Dock Labour Board towards levy for iron ore handled through the said vessel at the rates prescribed by the MDLB from time to time. By letter dated 10th February 1995 the petitioners sought respondent''s advice on the formalities to be entered into with the respondent for the operation of the transhipper m.v.ORISSA. By letter dated 13th June 1995 (Exh.R-2 page 395) the respondents informed the petitioners that they would have to enter into an agreement with the respondent for a period of five years subject to the revision thereafter and pay the stipulated rates as envisaged in the Government of India''s letter dated 16th September 1991. Under letter dated 13th December 1995 (Exh.R-3 colly page 397) the respondents enclosed a draft agreement to be executed by the petitioners with the port for operating transhipper m.v.ORISSA.

96. Condition No.12 of the draft agreement in terms provided that "the owners shall also undertake to make the payments to the Mormugao Dock Labour Board towards levy for iron ore handled through the said transhipper at the rates prescribed by the MDLB from time to time". It is pertinent to note that Condition No.12 of the draft agreement is same as condition (p) of the Approval dated 16th September 1991 granted by the Government of India.

97. Petitioners herein filed a Writ Petition in this Court on 4th praying inter alia for a writ of mandamus commanding the respondent herein to withdraw inter alia Condition No.12 from the draft agreement. After the aforesaid Writ Petition No.85 of 1996 was admitted and Rule issued, petitioners herein entered into an agreement with the respondent in terms of the draft agreement at Exh.R-3 Colly without prejudice to their rights and contentions. The said agreement dated 6th March 1996 is at Exh.R-4 page 409. The aforesaid agreement dated 6th March 1996 as may be seen from clause 14 thereof, was for a period of five years and was to be renewed thereafter as per terms and conditions mutually agreed to. On expiry of aforesaid agreement, petitioners and respondents herein entered into a new agreement dated 8th February 2002 (Exh.R-5 page 429). Both the parties have agreed to renew the agreement dated 6th March 1996 effective from 7th March 2001. Clause 12 of the new agreement dated 8th February 2002, as mutually agreed between both parties, provides that "the owner shall undertake to make the payments to the Mormugao Dock Labour Board, which is presently known as Cargo Handling Labour Department (10th Department) of Mormugao Port Trust, towards levy for iron ore handled through the transhipper at the rates prescribed by the MDLB from time to time." This Court by its judgement dated 24th July 2002 (Exh.R-6 page 437) was pleased to dismiss the Writ Petition No.85 of 1996 filed by the petitioners herein.

98. The learned Counsel for respondents Mr.Nadkarni made submissions insofar as prayers (a) to (c) on the following lines:-

The Contention of the petitioners appears to be that the Mormugao Dock Workers (Regulation of Employment) Scheme, 1965 does not apply to the persons operating the cranes of transhipper m.v.ORISSA and therefore the respondents are not justified in demanding from the petitioners the levy of Rs.1.89 per ton in respect of the tonnage handled by transhipper m.v.ORISSA.

99. It was further submitted that a similar issue has been decided in Writ Petition No.47 of 1971 filed by M/s.Chowgule & Co., owners of transhipper vessel in the Court of Judicial Commissioner of Goa wherein it was contended that the owners of the transhipper were not doing dock work within the meaning of the scheme and they were entitled to employ their own labour and they were not required to pay any levies for the cost of administering the scheme. The said writ petition was disposed of by the Judicial Commissioner by his judgement dated 19th August 1974 (Exh.R-7 page 487) whereby the contention that the owners of the transhippers were outside the scheme and did not perform dock work was rejected and it was held that they were liable to pay levy. It was however, held that the owners of the transhipper were not liable to pay notional levy on the basis of gangmen who were not actually utilised by the said owners. The Board as well as the owners of the transhippers filed appeals against the said judgement in the Hon''ble Supreme Court and the said appeals were disposed of by the Hon''ble Supreme Court in terms of an agreement dated 8th July 1977 whereby it was agreed that the owners of the transhipper shall register themselves as employers within the meaning of the scheme with liberty to employ their own workmen on their transhipper who would be treated as monthly workers under the scheme and that the owners of the transhipper would pay a rate per tonne of cargo handled through the transhipper which rate of levy would be revised. Similar agreements were also entered into with other owners of transhipper vessells in 1977. In this behalf Mr.Nadkarni relies upon the judgement of the Hon''ble Supreme Court reported in 1995 Supp (1) 534 (supra).

100. It is further submitted that the transhipper m.v.ORISSA is similar to any other transhipper vessels presently operating at the port of Mormugao. All other transhipper vessels are carrying out loading operation on ocean going carriers/ vessels and m.v.ORISSA is similar to existing vessels in all respects. The operations carried out by the transhipper m.v.ORISSA with the machinery installed thereon, is similar to the machinery installed on any transhipper presently operating at the port of Mormugao. The safety care to be taken with the machinery also applies to other transhippers. There could be no distinction in the operation of the present transhipper. It is not a new phenomenon in the port operation at the port of Mormugao. The system of transhipment of cargo at Mormugao port by the transhipper was in operation over two decades. The operation cranes is a dock work under the provisions of the scheme, 1965 applicable to the port of Mormugao. The work done by operating the crane is a stevedoring work under the provisions of the scheme.

101. The Dock Workers (Regulation of Employment) Act, 1948 and Scheme, 1965 was applicable to the petitioners and the respondents are entitled to recover from the petitioners the contribution in the form of levy. The transhippers were in operation in the Port of Mormugao for over two decades and they were all registered with the Board under the Scheme, 1965. They are all paying the levy as per the formula executed with the Board. The petitioners were aware of the aforesaid levy as they were the registered employees under the scheme, 1965. M/s.Sesa Goa Ltd. (petitioners) being registered employers registered with the Board, were aware of the Circulars issued from time to time and agreement executed under the provisions of the scheme. It is submitted that furnishing of information as regards to the income and expenditure accounts of the respondent Board has no relevance, whatsoever. The payment of levy paid by all other transhipper owners is legitimately due under the provisions of the scheme. The view of the petitioners that the payment was without prejudice to their contentions is not maintainable when they are carrying out dock work under provisions of the scheme. The petitioners have executed the agreement with the Mormugao port Trust and they had agreed to effect the payment of levy whle obtaining the permission to operate the transhipper at the Port of Mormugao. There was no question of compelling the petitioners to enter into an agreement as stated by the respondent and to make payment thereon. For over two decades, the agreements were in operation with other transhipper owners in the Port of Mormugao. The petitioners want to claim undue benefits ignoring the application of the Dock Workers (Regulation of Employment) Act, 1948 and the scheme, 1965 thereby depriving the legitimate dues of the board to meet the objects of the scheme applicable at the port of Mormugao. There was no discrimination among the transhipper owners, when there is an Act/ Scheme framed by the Government. The petitioners were aware of the formula of transhipper levy in force and paid by the transhipper owners since they were registered with the Board. The petitioners were required to execute the agreement similar to the agreement entered into by other transhipper owners.

102. A number of vessels fitted with cranes have been calling at the Mormugao Port and the winch drivers of Mormugao Dock Labour Board have worked on the said vessels and driven the cranes without any difficulty or accident. As a matter of fact, the frequency of such vessels calling at this Port is on the increase and are being handled by the winch drivers. Winch Drivers have been in fact working on such vessels fitted with cranes/ grab cranes by rotation and have been earning substantial remunerations by way of incentives. m.v.Pacific Jasmin had been regularly calling at this Port since 1982 and the winch drivers are being employed to operate the grab cranes for the purpose of loading ore from the barges in the midstream for the purpose of uptopping after the said vessel loaded at berth No.9 upto a permissible raft. The winch drivers are being paid crane allowance in addition to their normal wages and incentives as and when they are called upon to operate the cranes/ grab cranes fitted to the vessels.

103. The petitioners are required to execute an agreement similar to transhipper agreement entered into by other transhipper owners for operating the transhipper in the Port of Mormugao. The Mormugao Dock Workers (Regulation of Employment) Scheme, 1965 framed under Dock Workers (Regulation of Employment) Act, 1948 is applicable to transhipper owners. The loading and unloading operations by cranes of transhipper is a dock work within the meaning of the scheme. The Board has a category of winch drivers and not winch men and they operate the cranes. They are entitled for payment of separate Crane Allowance for operating the cranes of Ocean Going Vessels.

104. The scheme applies to all the operations at places or premises which the scheme relates ordinarily performed by Dock Workers. Dock Worker means a person employed or to be employed in, or in the vicinity of, any port on work in connection with the loading, unloading movement or storage of categories, or work in connection with the preparation of ships or other vessels for the receipt or discharge of cargoes or leaving port. The winch Drivers of the Board are operating the cranes of Ocean Going Vessels and with the advancement of the technology, there are absolutely no vessels with winches. All the ocean going vessels are equipped with highly sophisticated cranes for operation by grabs, spreaders etc. The petitioners are the employer in relation to Dock Worker and means the persons by whom the Dock Worker is employed.

105. The petitioners are registered employers under the scheme. Clause 54 of the scheme states that the cost of operating the scheme shall be defrayed by the payments made by the registered employers. Every registered employer shall pay to the respondent (Board) such amount by way of levy in respect of reserve pool workers/ monthly workers at such rate as it may determine. Clause 54(2) of the Scheme provides that in determining the payments to be made by registered employer, the levy shall be so fixed that the same rate of levy will apply to all Dock employers who are in like circumstances. It is further submitted that all the other transhipper owners who are Dock employers are in like circumstances with the petitioners. Any deviation of already established system within the provisions of Dock Workers (Regulation of Employment) Act, 1948 and Scheme 1965 would be disastrous for the operation of the scheme 1965 at the Port of Mormugao.

106. It is further submitted that in any event, whether the cranes with winch transhipper m.v.ORISSA is equipped are different from and cannot be compared to ordinary winches with winch ships are concerned, or whether the operation of the cranes require specialised training or whether if the cranes are entrusted to the winchmen of the respondents there is every likelihood of mishandling and accidents are all questions of facts. It is, therefore, submitted that this Court in its extra ordinary writ jurisdiction under Article 226 of the Constitution of India should now dwell into all these question of facts and reject the prayer clauses (a) to (c).

107. In relation to prayer clauses (c-1), (c-2) and (c-3) Mr.Nadkarni submits that the challenge in the petition is that after 31st March 1998, the respondent cannot demand any payments under the agreements which the petitioners had executed with erstwhile Mormugao Dock Labour Board for payment of transhipper levy and that therefore demands made by the respondent would be without authority of law. In his submission it is very pertinent to note that in the present case, the petitioners have executed an agreement dated 8th February 2002 (Exh.R-5 page 429) with the Board of Trustees of Port of Mormugao after the merger of the Mormugao Dock Labour Board with the Mormugao Port Trust pursuant to the Dock Workers (Regulation of Employment) (Inapplicability to Major Ports) Act, 1997 and clause 12 of the said Agreement dated 8th February 2002, as mutually agreed between both the parties provide that "The owner shall undertake to make the payments to the MDLB which is presently known as Cargo Handling Labour Department (10th Department) of MPT, towards levy for iron ore handled through the transhipper at the rates prescribed by the MDLB from time to time. It is further submitted that in view of Clause 12 of the said Agreement dated 8th February 2002 executed with MPT after 31st March 1998, it is not open to the petitioners to contend that MPT cannot demand any payments after 31st March 1998. Respondent''s Counsel, therefore, submitted that in the circumstances as stated the case of petitioner herein is not similar to the cases of the petitioners in Writ Petition Nos. 409 of 2001 and 33 of 2002 which are being heard together.

108. It is, therefore, submitted that in the circumstances the present petition is liable to be dismissed in limine.

109. With the assistance of the learned Senior Counsel and all other Counsel appearing for respective parties, we have perused the records in the First Appeal and the Writ Petitions. We have perused with their assistance the plaint in the civil suits, written statement, counter claim, issues therein, oral and documentary evidence to the extent relevant and necessary, so also, the impugned judgement of the learned District Judge. Wherever our attention was invited to, we have perused the other annexures to the memos of first appeals and petitions. We have also perused carefully the statutory provisions brought to our notice so also the decisions of this Court and the Hon''ble Supreme Court.

110. As crystalised above, even if the sweep of the pleadings, the evidence and the arguments is very wide, the points for determination are restricted. The controversy is not too broad as covered by the oral arguments and written submissions.

111. What essentially is the case of the parties has been noted by us. Before we proceed to analyse the rival contentions, it would be advantageous to refer to a brief history of the proceedings. As noted in the common judgement delivered by this Court in Writ Petition No.60 of 1983 and Writ Petition No.74 of 983 on 12th October 1984, the parties are engaged in the business of exporting ore particularly iron ore through Mormugao harbour. Mormugao Dock Labour Board (MDLB) is a statutory authority created under the 1948 Act and it is also the authority referred to in the rules viz., Dock Workers (Regulation of Employment) Rules, 1962. The duty of administering the scheme in order to ensure the greater regularity of employment for the Dock Workers as well as to secure availability of adequate number of such workers for the operation and performance of dock work that the Board is empowered to impose levies so as to meet the cost of operating the scheme framed under the 1948 Act.

112. Consequent upon the provisions of the Act and the Rules and the Sheme, the loading of the exported ore on ocean going vessels in the Mormugao Harbour, except for the ore landed at Berth No.9 is handled by Registered employers with the dock workers (winch Drivers and Gang Workers) supplied by the first respondents from the reserve pool on payment of prescribed wages. This loading is ordinarily done, at the present, by using any of the three methods available, viz., by the conventional or manual method, or by transhippers or by grab cranes directly fitted to the ocean going vessels. Under the conventional or manual method, the ore carrying barges come alongside the ocean going vessel which is anchored mid-stream and the ore is then loaded on the latter ship, normally by two units of Winch Drivers and Gang Workers, each unit being constituted by four winch drivers and ten gang workers per each crane and operating by shifts of 8 hours each. The gang workers manually lead the ore from the barges on net slings which are lifted by the ocean going vessel''s cranes operated by the unit''s Winch Drivers to its holds. Under the transhipper method, the barges come alongside the transhipper and the ore is removed from the barges by use of grab cranes fitted to the transhipper and placed on a conveyer belt. Then, the ore is directly taken to the holds of the ocean going vessel by the conveyor belt. Finally, under the grab cranes method, the ore is picked up from the barges by the grab cranes fitted to the ocean going vessel and then directly taken to the latter''s holds. Unlike in the conventional method where Winch Drivers and Gang Workers requisitioned from the Reserve Pool are employed, no gang workers are used in the other two methods and in the grab crane method, Winch Drivers from the reserve pool are used on payment of the wages prescribed by the first respondents, while the transhippers also employ only winch drivers but on monthly basis and, only exceptionally, requisitioned from the reserve pool.

113. Originally, the loading of the exported ore on the ocean going vessels was exclusively done by the conventional or manual method and the levy was prescribed according to the percentage of the time rate wages. It appears that somewhere in the year 1969, a transhipper began operating in the Mormugao Harbour without employing dock workers and without paying any levy on the assumption that the cargo handled by the transhipper was outside the scheme. This led to litigation, which ultimately ended in a settlement on 8th July 1977. Under the terms of the said settlement, the transhipper owners registered themselves as employers under the scheme and the workmen employed by them were treated as monthly workers. They further agreed to pay a lump sum amount as and by way of levy on the basis of the tonnage of the cargo handled at the agreed rate per tonne. The original agreed rate was Rs.0.7 paise per ton but was twice revised and at the present, fluctuates according to a formula mutually agreed upon in April 1983. This levy is composite and all inclusive. More transhippers begun later to operate in the Mormugao Harbour under similar terms. Thus, all the transhippers employ dock workers on monthly basis and pay the agreed composite levy to the first respondents. Somewhere in the year 1970, when the situation was thus standing, ships fitted with grab cranes were introduced for the loading of the exported ore. It seems that this led to labour unrest, which ended by a settlement arrived at on 17th October 1970 between the employers and the employees, which settlement was ratified by the first respondents. Under the terms of this settlement, whenever gangs are not picked for work, the employer would pay double the levy chargeable to one gang for each working grab crane and therefore, the general levy in respect of handling cargo by grab cranes was fixed at 200% on actual employment of one set of Winch Drivers and on notional employment of two Gangs per hook and the welfare levy at 30% of time rate wages in respect of Winch Drivers and notional employment of two gangs per hook.

114. By a circular dated 19th March 1983, the first respondents informed the registered employers of the Mormugao harbour that, by letter dated 11th March 1983 the Ministry of Shipping and Transport had conveyed the approval of the Government of India to the fixation of the general levy at 400% on actual employment of one set of Winch Drivers and on the notional employment of two gangs per hook (400% per each gang) in respect of handling of grab cranes fitted to ships and further, that the welfare levy relating to the same operations had been fixed at 60% at the time rate wages, both as regards Winch Drivers and notional employment of two gangs per hook, with effect from 30th October 1982 in both cases. And by another circular, also dated 19th March 1983, it was further conveyed to the Registered employers that the approval of the Government of India to the collection of a special levy at the rate of Re 1/- per tonne in respect of all cargoes manually handled by the registered dock workers with effect from 14th March 1983. Accordingly, thereafter, the parties were issued debit notes connected with the said levies.

115. The petitioners assailed, in the Writ Petition No.60 of 1983 and Shipping dated 11th March 1983 and the two Circulars dated 19th March 1983 and the debit notes as well as the levies at the rate of 200% and 30% which were prevailing prior to those communicated by the impugned circulars.

116. Thus the petitioners in these petitions challenged the fixation of general levy at 400% on actual employment of one set of winch drivers and on notional employment of two gangs per hook (400% each gang) in respect of handling of grab cranes fitted to ships.

117. It is this challenge which was being considered by the Division Bench and the argument that the levies are discriminatory, arbitrary, unfair and unreasonable and, therefore, violative of Article 14 of the Constitution of India and that in any event, the increase of levies communicated by the impugned circulars is bad inasmuch as it is made applicable with retrospective effect. Even the approval of the Central Government was obtained post facto.

118. It is while meeting such challenge that the Board argued that vessels and transhippers, since they are not equals and hence they are not similarly situated. Though in both a mechanised system of loading ore on the ocean going vessel is used, in a transhipper, more operations are involved and the cost of handling cargoes is much higher than in the case of grab crane fitted vessels. While pointing out the distinguishing features and arguing that the transhippers are made to operate on special conditions imposed on them by Government and are required to have their own set of workers for operating their cranes and other equipment with the result that they have to maintain two sets of crew. The Government has permitted them to acquire them on certain terms and conditions imposed by MPT under the MPT Act. The transhippers are also permitted, under the terms of the agreement entered into by them with the MDLB to carry on dock work with the help of their own workers but registered as employers under the scheme and the workers utilised by them were treated as monthly dock workers. It is while arguing thus that the Board submitted that under the said agreement, they are liable to pay certain rates of levy which is composite in nature and all inclusive. This levy was initially revisable only by mutual consent but when the matters were argued before the Division Bench it was pointed out that there is automatic revision of the rate of levy in accordance with the mutually evolved and agreed formula. Thus relying on these distinguising features with regard to transhipper owners and the grab crane fitted vessels that the arguments canvassed by the petitioners in that petitions were resisted and that with the aid of the statements made in the affidavit in reply.

119. The argument in the matters before us is based upon the stand taken by the Board in answer to the challenge in these petitions. Therefore, that requires us to construe the agreement between the transhipper owners like the appellants/petitioners before us and the Board and whether indeed the levies are composite or all inclusive as urged before us.

120-A]

The Agreements of 1977 reads thus:-

1. The owners shall be at liberty to continue to employ their own workmen on the said vessel to be treated as monthly workers under the Scheme.

2. The owners shall submit detailed statistics by way of tally sheets, tonnage handled hookwise, shipwise and shiftwise and such other statistics as may be demanded by the Board from time to time.

3. The owners shall pay 7 paise per ton of Cargo handled through the said vessel with effect from January 1982 as levy.

4. 25% of such levy payable in respect of cargo handled through the said vessel from the date of commencement of operations by the said vessel till the date of execution of this agreement shall be paid within 14 days thereof and the balance 75% of the amount of arrears shall be paid within the period of 8 (eight) months from the date hereof.

5. The owners shall withdraw their writ petition No.157 of 1975 pending before this Court of the Judicial Commissioner for Goa, Daman and Diu at Panaji.

6. The owners shall continue to pay this levy in future till the same is changed with the mutual consent of the parties.

7. The Board shall not enhance the rate until it is mutually agreed upon."

The Agreement entered between same parties on 23rd September 1983 has the following relevant recitals and clauses. The same read thus:-

AND WHEREAS the levy rate stipulated in the aforesaid agreement dated 9th August 1977 was enhanced from 7 paise per tonne to 21 paise per tonne w.e.f. 14th August 1980 by mutual consent;

AND WHEREAS the owners have been paying the said levy at the enhanced rate of 21 paise per tonne w.e.f. 14th August 1980 in terms of Board''s resolution No.790 dated 20th November 1980;

AND WHEREAS the owners have acquired another transhipper by name m.v.SANJEEVANI for the purpose of transhipping, uptopping and primary loading of ocean going vessels carrying mineral ore, and the same started operating in the Port of Mormugao w.e.f. 30th September 1982;

AND WHEREAS for quite some time, the Board and owners had been holding negotiations about the need for a further enhancement of the said rate of levy in terms of Board''s decision vide resolution No.857 dated 17th March 1982;

AND WHEREAS further negotiations were held on 24th March 1983 and on 30th March 1983;

AND WHEREAS the Board and the owners have agreed to revise the rate of levy from time to time in respect of tonnage handled by or through the aforesaid transhippers;

AND WHEREAS the owners agree that the levy rate payable for the tonnage handled by or through the aforesaid transhippers shall be revised from time to time whenever there is a revision in the wages of stevedoring levy rates, by dividing the total amount of general levy and welfare levy payable in respect of one set of winchdrivers for vessels loading mineral ores in midstream by vessels winches/ cranes (not grab-cranes), by an average through put of 1100 tonnes per crane per shift and have further agreed to pay the said revised rates based on the aforesaid principle as from 1st April 1982;

NOW THIS AGREEMENT WITNESSETH as under:-

1.The parties agree that in view of these presents, the

previous agreement dated 9th August 1977 between the Board and the owners shall stand modified to the extent indicated herein.

2.The parties agree that the levy rate payable by the owners to the Board in respect of the tonnage handled by or through the aforesaid transhippers whether the existing transhipper or any other transhipper that may be permitted to be acquired in future to be operated in the Port of Mormugao, shall be revised from time to time whenever there is a revision in the wages and/or stevedoring levy rates by dividing the total amount of general levy and welfare levy payable in respect of employment of one set of winchdrivers for vessels loading mineral ores in midstream by vessels winches/ cranes (not grab cranes) by an average throughput of 1100 tonnes per crane per shift;

3.The owners agree to pay the aforesaid levy rate on the basis of what is provided in clause 2 hereinabove w.e.f. 1st April 1982 and the said revised levy rates shall therefore be deemed to have come into force as from the aforesaid date viz., 1st April 1982;

4.The arrears payable by the owners as from 1st April 1982 to 31st March 1983 shall be worked out and the debit notes preferred thereon by the Board and the owners agree to pay the same to the Board in four monthly installments commencing in December 1983 and ending in March 1984 along with the interest at the current lending rate plus 1% by way of administrative charges on the aforesaid arrears. The interest on the arrears from 1.4.1982 to 31.3.1983 shall be charged with effect from 1.4.1983.

5.The owners agree that the Board shall be entitled to charge interest at the current lending rate of the State Bank of India plus 1% by way of administrative charges on the delayed payments due by virtue of these presents as are being recovered by the Board from the other registered employers.

120. In this behalf, a perusal of the agreements which are more orless common between the parties reveals that the V.M.Salgaonkar & Brothers Pvt. Ltd., referred to as the owners and MDLB referred to as Board have agreed that the ocean going vessel Sanjeevani started operating at the Mormugoa port from 1972. However, it is agreed that M/s.Salgaonkar were called upon by the Board to comply with the 1965 scheme by employing registered dock wokers for carrying on dock work on the said vessel and to pay levy thereon. That action was challenged and, thereafter, the agreement recites that M/s.Salgaonkar/ owners will be at liberty to continue to employ their own workmen on the said vessel to be treated as monthly paid workers under the scheme. The various statistics would be maintained and produced before the Board. They would pay levy at the rates specified in clause 3 of the 1977 agreement. How, the same shall be paid is, then, agreed and the petition was withdrawn. Clauses 6 and 7 records the agreement with regard to mutual consent for change of levy and enhancement of the rate.

121. Thereafter, there was a letter addressed on 11th November 1980 referring to clause 3 of this 1977 agreement and the Salgaonkars conveyed their concurrence to the Board''s proposal to revise the levy from 7 paise to 21 paise per ton with effect from 14th August 1980, subject to the other conditions of 1977 agreement.

122. Then, there is a circular of the Board on 19th March 1983 whereunder the registered employers were conveyed the Central Government''s approval under clause 54 of the scheme for the collection of special levy at the rate of Re 1/- per tonne for all the cargoes manually handled by the registered dock workers with effect from 14th March 1983. Thereafter, there is a letter dated 6th April 1983 addressed to all viz., M/s.Salgaonkar Brothers, M/s.Salgaonkar Engineers, M/s.Chowgule and M/s.Dempo referring to a discussion of 30th March 1983 on the modification of the earlier agreements and the draft of modification was forwarded on 6th April 1983. Thereafter, the agreement of 23rd September 1983 came to be executed between M/s.Salgaonkar and MDLB in which as well there is a reference to the levy in force untill that date and a formula to compute the revised levy and recovery based thereon, has been agreed. It is very pertinent to note that internal page 3 of the said agreement of 1983 in the recital No.4 commencing "AND WHEREAS", there is a reference to the amount of general levy and welfare levy. Thus, this agreement refers to the levy which is the general and welfare levy and that was leviable on the relevant date. Thereafter, there are circulars and what has come on record is a letter dated 5th March 1984 from the Salgaonkars to the Dy.Chairman of MDLB in which what has been stated with reference to the circular of 28th February 1984 is that the ex gratia and additional levy has been included which is not in keeping with the agreement. Pertinently, it is stated that the agreement of September 1983 and prior agreement refer to general levy and welfare levy. Therefore, the ex gratia and additional levy was requested to be deleted from the work sheet! calculation sheet. This issue was continued and, thereafter, even in the letter of 12th May 1984 addressed to the Accounts Officer of MDLB there is a reference to general and welfare levy. Then, there is a discussion held with the representative of the transhipper owners and the Board regarding additional levy and ex gratia on 16th May 1984. However, the Board intimated on 24th July 1984 vide circular of that date about discontinuance of additional levy of 20%. Reference is made to 1984 Resolution of the Board in that behalf. It appears, therefore, that the subject ended and all that remained was the ex gratia levy of 8-1!3%.

123. Even with regard to the same, there was some issue raised in the month of August 1984 and the request made by M/s.Salgaonkar was to exclude from consideration the ex gratia and additional levy. The matter was pursued and on 30th November 1984, the additional levy and ex gratia appears to have been omitted from calculations. However, on 4th December 1984, the MDLB informed the appellants M/s.Salgaonkar Bros., that the clarificatory resolution of 14th July 1983 speaks of a special levy of Re 1/- per ton payable by all registered employers with effect from 14th July 1983 and, therefore, the Board stated that it is obliged to collect the same from registered employers who are transhipper owners and who employ monthly paid workers who are covered under the scheme.

124. Once again it is pertinent to note that the case of Board is not that the workers of the Board were engaged but the case is that workers covered by the scheme have been engaged by transhipper owners. The circulars are at page 385 Vol.II of First Appeal No.152 of 2001 and the substance thereof has been referred by us hereinabove.

125. It is, therefore, clear that the understanding of the parties was that the levies under the Agreements are general and welfare levy. The agreements do not speak of or cover special levy because that was not in contemplation in 1977, 1980 and early 1983. This aspect also becomes at once clear, if one peruses the judgement in the case of Fomento (supra), wherein it has been clarified in para 26 onwards and particularly in para 28 that the levy is in respect of cargoes handled with the help of registered dock workers (whether gang workers or winch drivers). The Division Bench, therefore, recorded a finding of fact that it is undisputable that the said special levy applies to all the methods of cargo handling where dock workers are employed, including grab crane method. Obviously, however, this special levy can be collected from those employers who use mechanised method of cargo handling only from the date of the Resolution i.e. 14th July 1983 and not earlier. Thus, the issue was when the cargo was handled at the Port by three basic methods viz., conventional i.e. manual method, transhipper method and grab crane method, the last two are mechanised methods of handling the cargo whereas the first one requires manual labour; though in all the three methods winch drivers are used, manual handling of ore is only in conventional method. However, the clarificatory resolution of 14th July 1983 has been referred to and the above factual finding has been recorded.

126. In these circumstances, there being no dispute and the contents of the documents being admitted, any reference to the oral evidence is unnecessary. That will only lengthen this judgement. The learned District Judge has referred to this very aspect and has held that the Board could not have forseen at that time what other types of levies would be required to be imposed in future and it is certainly not the case of the plaintiffs that at the stage of entering into the said agreements, the Board represented to them that the said levies agreed to be paid by way of general and welfare levy, were to be composite and all inclusive. Now much has been made by the learned Senior Counsel appearing before us on this aspect and particularly levy being all inclusive and composite. However, at the same time, the learned Senior Counsel emphasised on the words "the levy" and "levy" appearing in the agreements. It was suggested that this means that even future levies were covered and, therefore, the special levy could not have been imposed and recovered from the parties like Salgaonkars, Chowgules and Dempos.

127. It is not possible to accept this contention because we have carefully perused these agreements and the clauses therein. The agreements themselves were entered into because of the dispute with regard to the general levy and welfare levy. They were in the context of challenge in the petition filed before the Judicial Commissioner in 1975. Thereafter, that levy was revised from Rs.7 per ton to further figure or rate as noted in the agreements. That revision was brought to the notice of the appellants as also the other transhipper owners. The agreements stood modified so as to cover the computation at that rate and, therefore, a formula was arrived at in which as well, there is a reference to general and welfare levy. In such circumstances, we are of the view that the learned District Judge committed no error in holding that when the appellants were aware of the imposition of special levy vide circulars of March and July 1983 as their argument is that in September 1983, there was another agreement and, therefore, the special levy cannot be imposed and recovered as that would have found place in the 1983 agreement. In other words, if the Board was desirous of recovering it that would have been recovered by it from the transhipper owners but the Board was aware that from the transhipper owners only single and composite levy could have been recovered and, therefore, it did not call upon the transhipper owners to pay the special levy at all. However, if the circular was of July 1983 and there was an agreement as stated in the month of September 1983, then, nothing prevented the plaintiffs/ appellants from bringing to the notice of the Board in their correspondence that a clarification be issued that special levy will not be recovered by the Board from the transhipper owners. They did not obtain any clarification but went on addressing letters with regard to additional levy and ex gratia, both of which were omitted from the calculations and computations by the Board. The appellants did not raise the issue of special levy and kept silent. Therefore, there was no occasion for the Board to clarify anything, save and except, bringing the circulars to the notice of the transhippers owners. In such circumstances, the interpretation by District Judge on the agreement cannot be said to be so erroneous or palpably wrong so as to take a different view or to interfere with the finding of fact. This finding cannot be said to be perverse but based on the interpretation and reading of agreements.

128. If such an interpretation is placed upon the agreement by the learned District Judge and we are in agreement with the same, then, other aspects of the controversy and the arguments based thereon, need not be gone into. Mr.Dada has pressed into service the Doctrine of Promissory Estoppel and Legitimate Expectation. However, these doctrines would not be of any assistance to the appellants, once the interpretation of the clauses of the agreements is as above. The agreements themselves do not cover special levy and that conclusion does not seem to be erroneous, justifying our interference in appellate jurisdiction. Once the agreement is understood in this manner, then, the argument of promissory estoppel and legitimate expectation which is based on the levy being all inclusive and composite (including special levy) need not detain us. In our opinion, the same cannot be advanced and no assistance can be derived from the same by the appellants. The scheme was in force, the appellants were registered thereunder and the persons employed were treated as Dock Workers. Mr.Nadkarni is right in urging that the agreements were executed to put an end to long

standing dispute and we agree with him that the parties were aware of the DW Act, the Rules thereunder and the 1965 Scheme so also the legal implications thereof.

129. Equally untenable is the argument based on the affidavit of Mr.Omkarappa, Dy.Chairman filed in the Writ Petition No.60 of 1983. Therein, what Mr.Omkarappa has clarified is that the case of Fomento and Timblo (supra) are comparable with that of the transhipper owners. What has been pointed out by him is that in case of loading by transhippers, the situation is entirely different and the case of these entities is not comparable with the case of loading by Transhippers. The reasons for the same are set out in para 6 of the affidavit, a copy of which is at page 430-31 in Vol.II of F.A. No.152 of 2001).

130. Therein, all his statements are based on the controversy in the petitions which refer to the so called special treatment to transhipper owners and as to why they have been excluded from the purview of the levies in case of others. In that context, explaining the agreements that Mr.Omkarappa has made the statements relied upon. However, even there, the statements must be read as a whole so also affidavit in its entirety. So read, it is clear that there are no admissions either in this affidavit or that the statements made therein would not make the case of the appellants any stronger. The statements that levy is composite and all inclusive are being read in isolation, Mr.Omkarappa has explained that two types of loading are being treated differently for the purposes of levy. The chartered vessels cannot be equated with the transhipper vessels for the purposes of levy or otherwise. It may be that there is a reference to V.R. Scheme. However, we do not read this affidavit as in any way holding that the special levy is covered by the agreements of 1977, 1980 and 1983.

131. Firstly, all these agreements must be read together as urged by Mr.Nadkarni. We read them accordingly and what we additionally find is that Mr.Omkarappa''s affidavits are filed on 23rd June 1983 and 2nd September 1983. As far as the affidavit filed on 2nd September 1983 is concerned, what he has said is extremely relevant. He has stated that the formula for revision of levy rates with the transhipper owners has been approved by the Board by its resolution No.937 of 14th July 1983. Beyond that, in this affidavit, he does not make any reference to the special levy but on the other hand justifies the issuance of letter dated 11th March 1983 and 14th March 1983 and the circular of 19th March 1983. In these circumstances, we do not see how the statements in these affidavits would be of any assistance to the appellants original petitioners. It is absolutely clear to us that in the context of meeting the challenge in the petitions and particularly, the argument of discrimination and arbitrariness that the difference between the transhipper owners and others was pointed out. There was no admission nor any specific stand that special levy will not be recovered from the transhipper owners. Therefore, the argument of promissory estoppel and legitimate expectation and the levy being composite and all inclusive cannot be based on the statements in these affidavits or deposition of Mr.Omkarappa.

132. That apart, what we find is that the learned District Judge was taken through the principle of promissory estoppel and the case law quite unnecessarily. Once such was the conclusion reached, it was strictly not necessary for the learned District Judge to enter into the other aspects but finding that he was dealing with an original action in which comprehensive issues were framed, that he felt obliged to record findings thereon. Even with regard to these aspects, the learned District Judge''s view cannot be said to be illegal or wholly erroneous because what he has done is to refer to the scheme and the aspect of, which of the levies which were in contemplation of parties, based on which the agreements were entered into.

133. In our view, the definitions in the DW Act which have been relied upon by Mr.Dada would not be of any assistance. Therein, he refers to the definition of the term "Dock Work" but which definition also appears to us to cover all types of activities in the Port. Further, the scheme for ensuring regular employment of workers with what it should provide has been referred to by Mr.Dada to contend as if it is only in relation to the aspects covered by the scheme that the obligation to pay levies would arise and not otherwise. Meaning thereby, that if no dock workers are engaged, the transhipper owners need not make any contribution in respect of the levies covered by the scheme. That is not a proper reading of the scheme beause neither the scheme nor the power to make it has been challenged. The object of the scheme is to ensure greater regularity of employment to dock workers and to ensure that adequate number of dock workers are available for operation, performance of dock work. The scheme relates to Mormugao Port and applies to classes or description of dock work and workers set out in schedule I. Proviso to clause 2(2) of the scheme clarifies that the scheme would not apply to any dock worker unless he is employed or registered for employment as dock worker. The scheme shall apply to registered dock workers and registered employers. The appellants do not dispute the fact that when they executed the agreements with the Board in 1977, they were called upon to comply with the provisions of the scheme by employing registered dock workers for carrying out dock work on their vessel m.v.SANJEEVANI in the case of Salgaonkar and to pay levy thereon. The recital in the agreement shows that the Salgaonkar''s challenged the move of the Board in calling upon them to register themselves as employers and to carry on dock work on the said vessel only with the help of registered dock workers and to pay levy as required under the sheme. Whilst agreeing to pay the amounts in terms of this agreement, at the rate specified therein and withdrawing the petition itself, it is apparent that it would not be open for them now to urge any longer that the scheme itself or the clauses therein cannot be applied to them. This aspect becomes further clear, if one peruses the recitals in the September 1983 agreement and they agreed to pay the levy leviable under the very scheme. That is clear, if one peruses the definitions in the scheme and the functions of the Board in terms of the scheme (clause/ para 7 of the scheme). The scheme sets out as one of the functions of the Board, being to levy and recover from registered employers contributions in respect of expenses of the scheme. That is how clause 8 and other clauses, particularly clause 16 and 17 would read. Even the employment of workers is dealt with by clause 29 and obligations of registered employers under clause 39 together with clause 40, would go to show that the scheme was applicable and the understanding between the parties was on that basis itself. Clause 54 of the scheme, therefore, must be read and considered accordingly.

134. We are in agreement with Mr.Nadkarni that all registered employers were liable to pay special levy with effect from 14th July 1983. Further, the appellants do not dispute that they have registered themselves under the scheme by first set of agreement. However, the appellants agreed to pay the levy which was payable by them in terms of clause 54 of the scheme read with clause 71(h) and 8(g) thereof and which was subsequently termed as "General and Welfare levy". In such circumstances and when the argument is that the scheme itself no longer remains in operation or that V. R. Scheme amounts collected under the 1983 V.R. Scheme was far in excess of actual costs incurred would only go against the stand of the appellant through out that they were not liable to pay anything other than what is covered by the agreements. In such circumstances, we also find that the stand with regard to the V.R. Scheme is incorrect. It has been explained that V.R. Scheme was not discontinued on 31st March 1985. The special levy of Re 1/- per ton was discontinued with effect from 1st April 1985 but the V.R. Scheme continued. This has been explained by the witness Mr.G.L.Vegies (DW-3) that the total sum paid under the V.R. Scheme when it was closed was Rs.1,58,73,848.55. It is, therefore, incorrect to urge that the expenses or amounts paid under the V.R. Scheme was only Rs.9,81,000/-.

135. In the same breath Mr.Dada would argue that the V.R. Scheme of 29th January 1983 is ultra vires and unconstitutional. What we find is that this scheme is in nature of an administrative action taken by the Board in discharge of its functions and there is substance in their contentions that the same cannot be equated with the scheme of 1965. That is required to be made under sections 3 and 4 of the DW Act. The V.R. Scheme as found by the learned District Judge as a measure designed by the Port to reduce dock workers from the reserve pool when they become surplus on account of mechanisation of port, including the activities carried on with the aid of transhippers.

136. If the argument is that special levy was not at all recoverable and the 1977, 1980 and 1983 agreements cover all types of levies and they were all inclusive, then, we do not see how it becomes necessary for the appellants to raise all these contentions. They may be stated to be in the alternative but what we find ` that they have been raised with some specific purpose. If the arguments in relation to the special levy being covered by the agreements were not to be accepted and that there being a serious doubt in that behalf that the appellants chose to raise all these pleas.

137. In such circumstances, upon a careful scrutiny of the entire records including the judgement we are of the opinion that the learned District Judge was in no error in rejecting the aforenoted submissions of the appellants.

We are in agreement with Mr.Nadkarni that the reasons assigned for rejecting the arguments of the appellants on the ambit and scope of the agreements are sound and no different conclusion can be reached by us on that score. Equally, we are of the view that Mr.Nadkarni''s submissions on the interpretation of the 1965 scheme deserve acceptance. We have noted them hereinabove. We need not refer to each one of them all over again. Suffice it to state that the scheme casts a duty on the MDLB to further its objects. The functions of the Board are set out in clause 7 of the scheme. The Income and property of the Board from whatever source derived shall be applied solely towards the objects of the scheme including health, safety, training and welfare measures for dock workers. Thus, a scheme framed under a welfare and social legislation fulfils an avowed object. That object of providing security and safety to Dock Workers should not be lost sight of while construing all such arrangements and particularly the subject matter of these proceedings.

138. Now what remains for consideration is the argument based on the Inapplicability Act. That is an argument principally raised in petition and also before the District Judge. It is very stranuously urged by Mr.Dada that the learned District Judge has upheld the arguments that this is a repealing Act. Our attention has been invited to para 77 of the judgement of the learned District Judge and it is urged that by virtue of the notification u/s 3 of the same, the scheme of 1965 is completely obliterated. This argument is accepted, according to Mr.Dada. However, a careful perusal of para 77 -1 of the judgement would show that the learned Judge has referred to section 4 Inapplicability Act and rejected the submissions of Mr.Dada as canvassed before us

139. However, we find much substance in the contentions of Mr.Nadkarni that the learned District Judge has not adverted to the entire Inapplicability Act but rested his conclusions on some part of section 4 thereof. The Inapplicability Act in terms state that it makes the DW Act inapplicable to dock workers of major port trusts. It states that the term "Board" has the same meaning as the Board under the Major Port Trust Act, 1963. It refers to the definition of the term "Dock Labour Board" to mean a Dock Labour Board established u/s 59 of the DW Act and then states that the Central Government may after settlement is arrived at between the Dock Labour Board of any Major Port, its workmen and management of that Major Port in accordance with the provisions of Industrial Disputes Act, 1947 direct by a notification in the Official Gazette that the provisions of the DW Act shall cease to have effect in relation to that Major Port with effect from the date specified in the notification.

140. What is argued before us by Mr.Dada is that this constitutes repeal of the DW Act. This is really a Repealing Act. Much emphasis has been laid before us on "the principle of Repeal" whether "express or implied". Thus, the argument projects the concept of repeal. It is urged that the Act may be styled as Inapplicability Act but in essence it is a repealing Statute. Once it is a repealing statute, section 6 of the General Clause Act will have no application because, section 4 of the Inapplicability Act evinces different intention.

141. What we find from a reading of section 3 is that there is a discretion given to the Central Government to issue the notification after settlement is arrived at in terms of this secion 3 and such notification should direct that DW Act shall cease to have effect in relation to that Major Port with effect from the date specified in that notification. Mr.Dada''s arguments are based only on a reading of section 3 of the Inapplicability Act and that too in isolation. That Act must be read as a whole and section 2 and 4 need to be construed on a combined reading of the same.

142. In "principles of Statutory Interpretation" by Justice G.P.Singh, 13th Edn. 2012, the learned Author has opined after referring to several decisions in the field that if acquired rights are stated to be saved and that is the intent of section 6 of the General Clauses Act, 1897, then, what is not "a right" and what is the right preserved by provisions of section 6 of the General Clauses Act is a distinction of great finesse. The saving is of rights and liabilities which are acquired or incurred under the repealed statute and not under the general law which is modified by a new Statute. The learned Author refers to several decisions and principles even from the English judgements and then concludes that the line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests a intention to destroy them. Unless such intention is manifested by the new Act, the old rights and liabilities under the Repealed Act would continue to have force u/s 6 of the General clauses Act 1897. It is the repealing Act and not the Act repealed which is to manifest contrary intention so as to exclude operation of section 6 of the General Clauses Act. The silence of the repealing act is consistent and not inconsistent with section 6. (page 720 of the Book in the cases noted by the learned Author below footnote 69, 70 and 71).

143. It is Mr.Dada''s contention that the saving clause enacted by section 4 of the Inapplicability Act alone should be looked at and if one looks at the same, then, it is not possible to hold that the 1965 scheme which is under the DW Act would survive upon notification u/s 3 being issued. However, this argument is based on the fact that 1965 scheme is legislative in character and a subordinate legislation. The principal Act being repealed, the scheme would not survive such repeal unless provisions like section 4 (savings clause) specifically save the same by referring it by its name.

144. Mr.Dada places strong reliance on the decisions of the Supreme Court in the case of Union of India (UOI) and Another Vs. A. Sanyasi Rao and Others, and Kolhapur Canesugar Works Ltd. and Another Vs. Union of India and Others, .

145. On the other hand Mr.Nadkarni places strong reliance on para 37 of the Judgement of Kolhapur Canesugar (supra) and the wording of section 4 of the Inapplicability Act. He submits that the learned District Judge has omitted vital part of the section and has referred to and reproduced in the impugned judgement only section 4(a) and (b). He submits that clauses (a) to (e) of section 4 will have to be noticed and in any event the Inapplicability Act must be read as a whole. Sections 3 and 4 should also be read together with the definition of the term "Board". He submits that MDLB has been now merged with MPT as its 10th Department and, thereafter, there is a settlement, a copy of which is at Exh.R-4 to the affidavit in reply filed on behalf of respondent No.1 in Wit Petition No.409 of 2001. Exh.R-4 contains a term that on the appointed date viz., the date of issuance of the notification u/s 3 of the Inapplicability Act/ 1st April 1998, all properties, assets and funds vested in the Dock Labour Board immediately before such shall vest in the MPT. All debts, obligations and liabilities incurred, all contracts entered into and all matters and things engaged to be done, by, with or for the Dock Labour Board immediately before such day, for on in connection with the purposes of the Dock Labour Board shall be deemed to have been incurred, entered into and engaged to be done by, with or for the MPT. Thereafter our attention is invited to clauses 2(a) to (e) of this settlement so also clauses 3 and 4 thereof culminating in clause 5 and it is urged by Mr.Nadkarni that there are in terms referrable to section 4 of the Inapplicability Act. Section 4 of the Inapplicability Act reads as under:-

"Section 4: Transfer of assets and liabilities of the Dock Labour Board, etc., to the Board - (1) On the appointed day in relation to a major port

(a) all property, assets and funds vested in the Dock Labour Board immediately before such day, shall vest in the Board;

(b) all debts, obligations and liabilities incurred, all contracts entered into and all matters and things engaged to be done by, with or for the Dock Labour Board immediately before such day, for or in connection with the purposes of the Dock Labour Board, shall be deemed to have been incurred, entered into and engaged to be done by, with or for the Board;

(c) all sums of money due to the Dock Labour Board immediately before such day shall be deemed to be due to the Board;

(d) all suits and other legal procceedings instituted by or against the Dock Labour Board immediately before such day for any matter in relation to the Dock Labour Board may be continued by or against the Board.

(e) every employee and worker serving under the Dock Labour Board shall hold office or service under the Board on the terms and conditions which are not in any way less favourable than those which would have been admissible to him if there had not been transfer of his services to the Board and shall continue to do so unless and until his employment in the Board is duly terminated or until his tenure, remuneration or terms and conditions of service are duly altered by the Board.

(2) Notwithstanding anything contained in the Industrial Disputes Act, 1947 or in any other law for the time being in force, the transfer of the services of any employee under this section to the Board shall not entitle such employee to any compensation under that Act or any other law, and no such claim shall be entertained by any court, tribunal or other authority.

146. To our mind, assuming that this indicates an intent not to apply section 6 of the General Clauses Act 1897 but nonetheless by such broad sweep of the words and the deeming fiction, the Parliament intended that the Inapplicability Act keeps alive the old rights and liabilities. It does not manifest an intention to destroy them. What is thus apparent is that the DW Act would cease to have effect in relation to that major port with effect from the date specified in the notification issued u/s 3 thereof but this does not obliterate or destroy completely the DW Act or a Scheme thereunder. All that it means is that the words "inapplicable" and "shall cease to have effect" are interchangeably used to convey the same meaning. Even if they are conveying the same meaning what appears to be clear further is that there is a transfer of assets and liabilities of the erstwhile Mormugoa Dock Labour Board to the Board of Mormugoa Port Trust within the meaning of MPT Act, 1963. The property, assets and all funds vested in the Dock Labour Board immediately before the date of the notification now vest in the Board of the Port Trust in relation to which the notification has been issued. Further all debts, obligations and liabilities incurred, all contracts entered into and all matters and things engaged to be done by, with or for the Dock Labour Board immediately before the date of issuance of notification for or in connection with the purpose of Dock Labour Board shall be deemed to have been incurred, entered into and engaged to be done by, with or for the Board under the MPT Act, 1963. All sums of monies due to the Dock Labour Board immediately before such date will be deemed to be due to the Board under the MPT Act, 1963 and even the legal actions and suits can be continued by or against the Board of a Port Trust. That is how even the status of the employees is referred to by clause (e) of section 4.

147. When such is the wording of the savings clause, then, we do not see how the arguments of Mr.Dada can be accepted. Firstly, there is a presumption against a repeal by implication and the reason for this is based on a theory that the competent Legislature while enacting a new law has complete knowledge of the existing laws on the same subject matter and, therefore, when it does not provide a repealing provision, it gives out an intention not to repeal the existing legislation. The burden to show that there has been repeal by implication lies on the party ascertaining the same. Assuming that in this case there is a implied repeal even then, there are further principles and if the prior statute is a general law and latter statute is particular or special law, then, the principle of statutory interpretations are those which are culled out once again by Mr.Justice G.P.Singh in his aforesaid work at pages 693 to 702.

148. The consequences of a repeal, which may be either, express or implied, may be the same but if there is a saving, then, such saving provision must be read in its entirety and not by picking or chosing words or clauses therefrom in isolation. It is then a question of construction or interpretation of the savings clause and then the line of enquiry would be not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intent to destroy them.

149. Far from evincing a manifest intention to destroy the existing rights and liabilities, in this case, what we find is that there is a clear intent to the contrary. Everything that is done for the purpose of or in connection with the affairs of the Dock Labour Board is expressly protected and saved. Thus, the question is of construction of the savings clause or provision. We are in agreement with Mr.Nadkarni that the undisputed position is that the 1965 scheme covers matters and things engaged to be done by, with or for the Dock Labour Board. The agreements with the Salgaoncars, Chowgule and Dempo refer to the very same matters and thus can be said to be done by or with or for the MDLB. The clear intent is to protect and save all debts, obligations and liabilities incurred so also contracts which fall within and answer the requirement in section 4(1)(b) of the Inapplicability Act. If the savings provisions in terms save the scheme and the agreements referrable thereto, then, to hold that the scheme and the agreements do not survive after the Inapplicability of DW Act to a Major Port, would amount to frustrating and defeating the Legislative intent of keeping alive and saving them. In several decisions of the Hon''ble Supreme Court, the enquiry as undertaken by us is undertaken and reference can usefully be made to them. In the decision reported in AIR 1985 S.C. 1729 (Dharangadhra Chemicals Works Vs. Dharangadhra Municipality) at pg.1736 in para 16 this what is observed by the Supreme Court:-

16. Secondly, the question could be considered u/s 7(b) of the Bombay General Clauses Act,

1904. Section 7 deals with the effect of repeal and reads thus:-

"7.1Where this Act, or any Bombay Act or Gujarat Act made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then unless a different intention appears, the repeal shall not -

(a) xx xxx

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder.

The Divisional Commissioner''s order according sanction is obviously saved thereunder but even Rules and Bye-laws could be covered by the expression "anything duly done" occurring in clause (b) above inasmuch as the expression "anything duly done" would be comprehensive enough to take in not only the things done but also the effects or legal consequences flowing therefrom. In Universal Imports Agency and Another Vs. The Chief Controller of Imports and Exports and Others, while interpreting the expression "things done" occurring in para 6 of the French Establishments'' (Application of Laws) Order, 1954, this Court has taken the view that such expression is comprehensive enough to take in not only things done but also the effects or the legal consequences flowing therefrom. In so interpreting the said expression the Court followed the English decision in The Queen Vs. Justices of the West Riding of Yorkshire (1876) 1 QBD 220, where the notice was given by a Local Board of Health of intention to make a rate under the Acts but before the notice had expired these Acts were repealed by the Public Health Act, 1875 which contained a saving of "anything duly done" under the repealed enactments, but the Local Board, in ignorance of the repeal, made a rate purporting to be under the repealed Act, and it was held that as the notice was given before the repealing Act the making of the rate was also saved by the words "anything duly done" under the repealed enactments. This Court pointed out that the English decision was illustrative of the point that it is not necessary that an impugned thing in itself should have been done before the Act was repealed but it would be enough if it was integrally connected with and was a legal consequence of a thing done before the said repeal. Therefore, it is not possible to accept the contention that merely the order of sanction was saved and not the Municipal Octroi Rules and Bye-Laws, 1965.

In another decision reported in AIR 2007 S.C. 232 (Mohan Raj Vs. Dimbeswari Saikia & Anr.), the Supreme Court in paragraphs 24, 25 and 26 has held thus:-

24. In State of Punjab Vs. Mohar Singh, , this Court held:-

Whenever there is a repeal of an enactment, the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them".

25. In Pannalal Bansilal Patil and others etc. Vs. State of Andhra Pradesh and another, , this Court held:-

It is settled legislative device toemploy non obstante clause to suitably alter the pre-existing law consistent with the legislative policy under the new Act to provide the remedy for the mischief the legislature felt most acute."

...Words are the skin of the language. The language opens up the bay of the maker''s mind. The legislature gives its own meaning and interpretation of law. It does so employing appropriate phraseology to attain the object of legislative policy which it seeks to achieve."

26. In Milkfood Ltd. Vs. GMC Ice Cream (P) Ltd., , it was held :

The Court is to interpret the repeal and savings clauses in such a manner so as to give a pragmatic and purposive meaning thereto."

In another decision reported in AIR 2007 S.C. 1984 (Southern Petrochemical Industries Co. Ltd. Vs. Electricity Inspector and E.T.I.O. & Ors.) the Hon''ble Supreme Court in paras 112 to 119 has observed thus:-

112. Mr.Andhyarujina also relied upon Maxwell on the Interpretation of Statutes, 12th Edn, page 18, wherein it was stated:-

When an Act is repealed, any delegated legislation made under the Act falls to the ground with the statute unless it is expressly preserved. Where the subordinate legislation is continued in force, however, the general rule is that its scope and construction are determined according to the repealed Act under which it was made."

113. The statement of law therein does not militate against our findings aforementioned construction would vary from statute to statute.

114. It is profitable to notice at this stage a decision of this Court in M/s.Universal Imports Agency (supra). In that case under the Indo French Agreement entered into by and between the two nations on 1st November, 1954, the entire administration of French settlement vested in the Government of India. The territory of Pondicherry, thus, became a free port without any restriction in case of most imports. However, by reason of a notification dated 30th October, 1954, the importers in Pondicherry were required to obtain validation of licences held by them to import goods as petitioners thereof did not have any merchandise imported by them stood confiscated."

115. Clause 6 of the Agreement reads thus:-

Unless otherwise specifically provided in the Schedule, all laws in force in the French Establishments immediately before the commencement of the order, which correspond to enactments specified in the schedule, shall cease to have effect, save as respect things done or omitted to be done before such commencement."

116. Analysing the said provision, this Court held:

.... The words thngs done in para 6 must be reasonably interpreted and, if so interpreted, they can mean not only things done but also the legal consequences flowing therefrom. If the interpretation suggested by the learned Counsel for the respondents be acepted, the saving clause would become unncessary. If what it saves is only the executed contracts i.e., the contracts whereunder the goods have been imported or received by the buyer before the merger, no further protection is necessary as ordinarily no question of enforcement of the contracts under the pre-existing law would arise. The phraseology used is not an innovation but is copied from other statutory clauses. Section 6 of the General Clauses Act (10 of 1897) says that unless a different intention appears, the repeal of an Act shall not affect anything duly done or suffered thereunder....

117. Thus, a liberal and extensive construction was given by this Court."

118. To the same effect is also a decision of this Court in Shri Ram Prasad (supra) wherein power to make rule was held to be a thing done within the meaning of Article 357(2) of the Constitution of India."

119. In Harnek Singh (supra) this Court held:-

16. The words anything duly done or suffered thereunder used in clause (b) of section 6 are often used by the legislature in saving clause which is intended to provide that unless a different intention appears, the repeal of an Act would not affect anything duly done or suffered thereunder. This Court in Hasan Nurani Malak Vs. S.M.Ismail, Asstt.Charity Commissioner, Nagpur, has held that the object of such a saving clause is to save what has been previously done under the statute repealed. The result of such a saving clause is that the pre-existing law continues to govern the things done before a particular date from which the repeal of such a pre-existing law takes effect. In Universal Imports Agency Vs. Chief Controller of Imports and Exports this Court while construing the words things done held that a proper interpretation of the expression things done was comprehensive enough to take in not only the things done but also the effect of the legal consequence flowing therefrom."

In the decision reported in AIR 2008 S.C. 739 (Sangam Spinners Vs. Regional Provident Fund Commissioner -I), the Supreme Court in paras 12, 15 and 16 has observed thus:-

12. In Jayantilal Amratlal Vs. Union of India and

Ors. (AIR 1971 SC 1193), it has been laid down as under:-

In order to see whether the rights and liabilities under the repealed law have been put to an end by the new enactment, the proper approach is not to enquire if the new enactment has by its new provisions kept alive the rights and liabilities under the repealed law but whether it has taken away those rights and liabilities. The absence of a saving clause in a new enactment preserving the rights and liabilities under the repealed law is neither material nor decisive of the question."

15. The matter can be looked at from another angle. Section 6 of the General Clauses Act, 1897 (in short "General Clauses At") deals with effect of repeal. The said provision so far relevant reads as follows:

6. Effect of repeal - Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not ---

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.

16. In terms of clause (c) of Section 6 as quoted above, unless a different intention appears the repeal shall not affect any right, privilege or liability acquired, accrued or incurred under the enactment repealed. The effect of the amendment in the instant case is the same.

150. In such circumstances, we do not see how any reliance can be placed by Mr.Dada on the judgement of the Supreme Court in the case of Air India (supra). With regard to this judgement, what the learned Author (Justice G.P.Singh) says at page 730 of his work is eloquent enough:-

A saving clause which continues "any notification" under a repealed Act has been construed to continue rules made under a notification; State of Nagaland Vs. Ratan Singh, etc., , saving of "anything duly done" under the repealed Act will also preserve the continuance of rules and bye-laws; Dharangadhra Chemical Works Vs. Dharangadhra Municipality and Another, . But in Air India Vs. Union of India and others, , it has been observed by a two judge bench; "If subordinate legislation is to survive the repeal of its parent statute the repealing statute must say so in so many words and by mentioning the title of the subordinate legislation. We do not think that there is room for implying anything in this behalf." It is submitted that these observations are too widely stated as the earlier authorities of the Supreme Court (State of Nagaland case is a Constitution Bench Decision) were not referred Saving of "anything duly done" and "any right or privilege acquired" may continue a notification granting exemption of tax permanently under the repealed Act even if there be no corresponding provision in the repealing Act for grant of such an exemption: see text and notes 77 to 81, pp.722-723."

151. In Air India''s case (supra) which is heavily relied upon by Mr.Dada, there were words to the contrary in section 8 which have been reproduced in para 5 and, therefore, the argument that the Air India employees (Service) Regulations, 1963 would not survive the repeal of the Air Corporation Act, 1953 was accepted. That Act was repealed by the Air Corporation (Transfer of Undertaking and Repeal) Act, 1994. Firstly, this was a case of express appeal.

Secondly, the argument was that section 8 of the 1994 Act saves the Regulations. Finding that section 8 does not in terms enact a saving clause, which would save these regulations but evincing an intent by which this regulation may not be applicable, unless the option by the employee in terms of section 8(1) of the 1994 Act, that it was held that such a regulation which is a piece of subordinate legislation will not survive repeal of parent statute. Para 8 of this judgement may be holding that the repealing statute must say in so many words and by mentioning title of the subordinate legislation that the same would survive, yet all such observations are with reference to the specific provision falling for determination and consideration viz., section 8 of 1994 Act. Therefore, the observations in paras 8 and 9 of this judgement must be seen in the factual background and the earlier paras. So seen, this judgement cannot be of any assistance. On the other hand, the other judgement relied upon in the case of Kolhapur Canesugar (supra) itself indicates to the contrary as urged by Mr.Nadkarni and once we find that section 4 and the "deeming fiction" thereunder cannot be ignored or brushed aside, then, we are of the opinion that despite Inapplicability Act coming into force the Agreements and the 1965 scheme are not obliterated but survive repeal of the DW Act and it would be open for the Board under the MPT Act to recover the amounts from the petitioners i.e. Salgaonkars and others. In view of the discussion and observations, we answer the questions framed as follows:-

(a) Whether the appellants and the petitioners who are styled as the transhippers have to pay the levies at the dock on par with other users or whether there is any distinct arrangement as between them and the erstwhile Dock Welfare Board (for short "DW Board") so also the present Marmugao Port Trust (MPT for short)? YES. In the Affirmative.

(b) If yes, whether the distinct arrangement which we have referred above is restricted to certain levies which are charged and recovered by the DW Board or whether this arrangement is composite and all inclusive as urged? NO. IN THE NEGATIVE

by the Major Port Trusts Act, 1963 (MPT Act for short), is entitled to recover the dues under the distinct arrangements with these Transhippers referred to above or it was the DW Board established u/s 5A of the Dock Workers (Regulation of Employment) Act, 1948 (DW Act for short) alone which is entitled to recover the same?

ANSWER: (1) No. The Board under the MPT Act, 1963 can recover the amounts, General Levy and Welfare Levy and Special Levy upto the date, the levies are in force, under the Arrangements/ agreements and the 1965 Scheme.

(2) Thus, it is both DW Board and its successor MPT (Mormugao Port Trust) which can recover the same in view of Section 4 of the Dock Workers (Regulation of Employment) (Inapplicability to Major Port Trusts) Act, 1997.

(d) Whether the Dock Workers (Regulation of Employment) (Inapplicability to Major Ports) Act, 1997 (for short DW Inapplicability Act) and the provisions thereof put an end to the distinct arrangement/ agreement referred to in Question (b) above and, therefore, the MPT is unable to recover any dues which are recoverable by the DW Board or not OR whether the notification u/s 3 of the DW Inapplicability Act being issued, does it mean that a Major Port Trust cannot recover any dues from the Transhippers from the date of issuance of notification within the meaning of this section of the DW Inapplicability Act? NO

IN THE NEGATIVE

2. In view of the above discussion, we do not find any merit in the First Appeals and Writ Petitions and they deserve to be dismissed. Rule is discharged.

3. In the view that we have taken, it is not necessary to consider the other contentions of Mr.Nadkarni, learned Senior Counsel appearing for respondent No.1 based on acquiesence, delay and latches, raised in individual matters, including that of M/s.Sesa Goa. Once we are of the opinion that the construction and interpretation of section 4 would clearly show that the 1965 Scheme (subordinate legislation) survives, then, any statement in the affidavit of the Board (Respondent No.1) cannot be of any assistance. The agreements, therefore, which are referrable to the scheme as noted by us in detail,

would also survive and amounts, thereunder, were payable and recoverable by the Board, even after the appointed date.

4. In these circumstances, no reliefs can be granted in writ petition No.3 of 1997 and it stands dismissed.

5. Insofar as counter claim of respondent No.1 is concerned, the counter claim to the extent it challenges the finding of the learned District Judge with regard to clauses 6 and 7 of the Agreement in the case of Salgaonkars, Chowgule''s and Dempo''s is not pressed and given up. Even otherwise, it would not survive in the light of our findings above above.

6. However, we do not wish to interfere with the findings and conclusion of the learned District Judge with regard to the monetary claims, save and except, it would be open for the first defendant Board to recover the amounts pertaining to the levies in terms of para 78 of the impugned judgement from 4th November 1983 with interest as directed therein. The Counter claim also, therefore, stands disposed off accordingly.

7. After the judgement and order in First Appeals and Writ Petitions was pronounced and since the Writ Petitions/ First Appeals have been dismissed, learned Counsel appearing for the appellants and writ petitioners in each of them, pray that the ad-interim orders therein be continued, so as to enable the appellants/ petitioners to challenge this judgement and order in a Higher Court. This request is not opposed by Mr.Nadkarni, appearing on behalf of The Board of Trustees of the Port of Mormugao, which is the contesting respondent No.1/ Defendant No.1.

8. After hearing the Counsel on both sides on this aspect, we continue the ad-interim order for a period of 12 weeks from today, so as to enable the appellant/ petitioners to approach the higher court, but on the condition that they will have to abide by the terms of such orders, including by keeping alive the Bank Guarantees for a period of 12 weeks from today.

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Case Metadata
  • Ck Citation: (2012) 03 BOM CK 0081
  • Coram: S.C.Dharmadhikari, J
  • Bench: Single Bench
  • Advocates: R.G. Ramani, Mr. Sudin Usgaonkar with Ms. A. Shirodkar in First Appeal NO. 52 of 2003 Mr. R. Dada, with Mr. A.F. Diniz and Ms. M. D''souza in First Appeal NO. 152 of 2001 Mr. R. Dada and Mr. P. Sanchetti, s with Mr. A.F. Diniz and Ms. M. D''souza in First Appeal NO. 152 of 2001 Mr. M. S. Sonak with Mr. J. P. Supekar, in First Appeal NO.154/2001 Mr. M. S. Sonak with Mr. J. Supekar in First Appeal NO. 158 of 2002 Mr. V. B. Nadkarni, with Mr. Y. V. Nadkarni and Mr. Noronha, in First Appeal NO.183/2001 Mr. M. S. Sonak with Mr. J. Supekar, in Writ Petition NO. 33 of 2002 Mr. Rafiq Dada with Mr. A. F. Diniz and Ms. Melanie, for the Appellant; V. B. Nadkarni with Mr. Y.V. Nadkarni with Mr. Noronha, Advocates for respondent no.1. Mr. M. Amonkar, Central Government Standing Counsel for Respondent no.2. Mr. V. B. Nadkarni with Mr. Y.V. Nadkarni with Mr. Noronha, Advocates for respondent no.1.in First Appeal NO. 52 of 2003 Mr. M. Amonkar, Central Government Standing Counsel for Respondent No.2. Mr. V. B. Nadkarni with Mr. Y.V. Nadkarni with Mr. Noronha, Advocates for respondent no.1..in First Appeal NO. 152 of 2001 Mr. M. Amonkar, Central Government Standing Counsel for Respondent No.2 Mr. V. B. Nadkarni with Mr. Y.V. Nadkarni with Mr. Noronha, Advocates for the Respondent No.1 in First Appeal NO. 152 of 2001 Mr. M. Amonkar, Central Government Standing Counsel for Respondent No.2. Mr. V. B. Nadkarni with Mr. Y. V. Nadkarni and Mr. Noronha, Advocates for respondent no.1.First Appeal NO.154/2001 Mr. M. Amonkar, Central Government Standing Counsel for respondent no.2. Mr. V. B. Nadkarni with Mr. Y. V. Nadkarni and Mr. N. Noronha, Advocates for respondent no.1.First Appeal NO. 158 of 2002 Mr. M. Amonkar, Central Government Standing Counsel for respondent no.2. Mr. M. S. Sonak with Mr. J. P. Supekar, Advocates for respondent no.1.in First Appeal NO.183/2001 Mr. M. Amonkar, Central Government Standing Counsel for respondent no.2. Mr. V. B. Nadkarni with Mr. Y. V. Nadkarni and Mr. N. Noronha, Advocates for respondent no.1 to 3.in Writ Petition NO. 33 of 2002 Mr. M. Amonkar, Central Government Standing Counsel for respondent no.2. D''Souza, Advocates in Writ Petition NO. 409 of 2001Mr. V. B. Nadkarni with Mr. Y. V. Nadkarni and Mr. N. Noronha, Advocates for respondent no.1 and 2.Writ Petition NO. 409 of 2001 Mr. M. Amonkar, Central Government Standing Counsel for respondent no.3., for the Respondent
  • Result: Dismissed
Referenced Acts & Sections
  • Constitution of India, 1950 - Article 226
  • Industrial Disputes Act, 1947 - Section 2(P)
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