JUDGMENT
Couto, J.
1. The petitioners, a Private Limited Company incorporated under the Companies Act, 1956, are the owners of a ship registered in India and named m.v. “DAMODARSAL”, which was at the material time anchored within the area of the Mormugo Harbour. They challenge, by this petition under Art. 226 of the Constitution, the notice dt. 27th June, 1985, whereby they were called upon to pay immediately a penalty of Rs. 10,000/- per day with effect from 16th May, 1985, and further seek a writ directing the respondents to withdraw or cancel it and to permit the port clearance of the said vessel without the payment of the penalty as aforesaid or any part thereof.
2. The petitioners acquired in the year 1982 the said vessel m.v. “DAMODARSAL”, purportedly to convert her into a transhipper vessel to be used in the Mormugao Port and, accordingly, in December of the same year, brought and anchored her within the harbour area of the said port at the place where she was moored when this petition was filed. It appears that the petitioners changed their mind in the year 1984 and decided to break up the vessel and sell her for scrap. Therefore, by letter dt. 2nd Mar. 1985, they sought permission of the respondents to proceed with the breaking up of the said vessel at Baina. By letter dt. 8th Mar. 1985, the Dy. Secretary, Mormugao Port Trust (for short “MPT”), conveyed the decision that the site proposed by the petitioners was not suitable and further, after observing that the vessel “DAMODARSAL” was posing severe threat and danger to the safety of port’s channel and to other vessels in the port, directed the petitioners to remove the said vessel immediately from the harbour and, in any event, before 15th May, 1985. This letter was followed by another letter dt. 13th mar. 1985, from the Dy. Secretary, MPT, reiterating the stand that the vessel “DAMODARSAL” was posing severe threat and danger to the port and directing the petitioners to remove her immediately without waiting up to 15th May, 1985, as such immediate removal had become necessary.
3. Apparently, the petitioners neither complied with the directions given in the letters dt. 8th and 13th Mar. 1985, by the Dy. Secretary, MPT, nor replied to the said letters and then, the said Dy. Secretary issued a notice dt. 4th April, 1985, asking the petitioners to show-cause why penal charges up to Rs. 10,000/- for each day of overstay within the port should not be levied on the vessel “DAMODARSAL” with effect from 16th May, 1985. The petitioners showed cause by their letter dt. 19th April, 1985, and stated that it was impossible for them to remove the vessel from the limits of the port, but since the machinery was repaired enabling her being shifted within the port limits, they were willing to shift the vessel to any proposed site away from the approach channel. They, the Dy. Conservator, MPT, on 22nd April, 1985, took the decision to impose the penalty referred to in the show-cause notice and apparently as the vessel was not removed, he addressed a letter dt. 8th May, 1985, to the petitioenrs stating that the said vessel would be posing a severe threat and danger with the approach of the South-West monsoon to the vessels anchored in the stream and would also hamper the safe navigation of the vessels coming to the inner anchorage and, therefore, directing the immediate removal of DAMODARSAL from the port, failing which the petitioners would be liable to pay penalty at the rate of Rs. 10,000/- for each day of 24 hours with effect from 16th May, 1985.
4. The petitioners, however, did not remove vessel from the harbour or for that matter even from the port area and, therefore, the Dy. Conservator, MPT, addressed to them two letters both dt. 8th/10th June, 1985, bearing Nos. DC/G-2/85/2657 and DC/G-2/85/2658, the first calling upon the petitioners to pay within seven days from the receipts of the said letter / notice the amount of Rs. 10,000/- per day towards the penalty imposed with effect from 6th May, 1985, till the date of the removal of the vessel from the port area, and the second, requesting the petitioners to take immediate action to post sufficient number of qualified officers and staff on the vessel to man her during the monsoon season in the event of any emergency arising due to squally weather. The petitioners, it appears, complied only with the request made in the second letter by taking steps to place the required staff on board of the vessel, for the Dy. Conservator, on 27th June,1985, addressed a letter to the Master of the said vessel stating that if the penalty with effect from 16th May, 1985, was not paid by 28th June, 1985, the vessel would be deemed to be distrained and if the said amount was not paid by 3rd July, 1985, the vessel would be liable to be sold. Apparently, the petitioners did not react directly against this communication, but by their letter dt. 6th July, 1985, addressed to the respondents, submitted a proposal to lighten the vessel afloat and to mover her, in stages, upstream in the river Zuari towards Cortalim and by another letter dt. 2nd Aug. 1985, they reiterated their request to shift the vessel stating also that the required staff had been placed on board the ship. The respondents, however, did not reply at all to the said two letters.
5. Despite the letter/notice No. DC/G-2/85/2657 dt. 8th/10th June, 1985, and the non-payment of the penalty by the petitioners, the respondents submitted, from time to time, to the petitioners bills in respect of thevarious port dues and port charges relating to the vessel in question which were paid punctually and without demur. The amounts of the penalty imposed were not included in those bills. Thereafter, by their letter dt. 12th Feb. 1986, to the Dy, Conservator, MPT, the petitioners, inter alia, stated that they were proposing to remove the vessel from the port and that they had paid the relevant port dues and then, requested to be informed whether there were any other outstanding amounts. The respondents, however, did not reply to this letter also. But it appears that on 28th Feb. 1986, the petitioners’ representatives was told that port clearance would not be granted to the said vessel unless full penalty amount was paid.
6. The petitioners assail the actions of the respondents in imposing the penalty as aforesaid and the non-clearance of the vessel without payment of the said penalty on several grounds. In fact, Mr. Atul Setalwad, the learned counsel appearing for them, has first contended that, admittedly, the penalty was imposed by the Dy. Conservator , MPT, on 22nd April, 1985. Now according to the learedn counsel the powe to impoe a penalty is conferred by S. 39 of the Major Port Trusts Act, 1963 (hereinafterrefeerred to as the “Act”) on the Board to Trustees . Under S. 21 the powers conferred on the board can be execised by the Chairman with prior approval of the delegation by the Central Government, Section 21, however, generally provides for delegation and since the powers to impose the penalty are quasi-criminal and have to be exercised judicially, such powes cannot be deleegated unless the statute specifically authorites such delegation the learend counsel then contended that the Act nowher provides for specific delegation of the siad powes to impose the penalty and therefore, the decision taken by the Dy. Conservactor, MPT to impose the impugned penalty is bad in law and wholly ulatra vires. He further contended that the decison being ab initio null and void and without jurisdiction, cannot at all be ratified. he next contended that even if the powers to impose the penalty could have been delegated, the penalty imposed is bad for no reasons were given as to why the maximum rates of penalty was imposed. Further, aslo assuming that the Dy. Con servator, MPT, could have taken the decision to impose the penalty. nonetheless, the saem decison is bad in law as it was taken even before the notice to remove the vessel from the area of the port was given to the petitiners. No reasons were given in the notice served on the petitionery for the aforesaid imposition of penatly, but in the affidavit-in-replay, the only reason advanced is that the vessel was not properly maintained and manned. If this is the real ground for the imposition of penalty, such ground has ceased to exit after July 1985, for the petitioners had not only repaired the machinery enabling the vessel to move within the port but also, as requied by the port authorities, have placed on board the vessel the requisite staf to manher. Finally, the learned counsel contended that from their own conduct, it is clear that the respondents had waived the penalty. In fact, they did not take any action after July 1985 to get the vessel removed from the port and to recover the penalty imposed by the Dy. Conservator, MPT.
7. Before we addresed ourselves to the abvoe contentions of the petitioners in support of their case, it will be expedient and necessary to dispose of first some preliminary objections which were raised by the respondents. In fact, Mr. S. K.Kakodkar, the learend counsel appearing for the respondent argued that the petition is bound to be dismissed in limine because the petitioners had not challenged at all the orders imposing the penalty on them. He submitted that as it is clear from the prayer clauses of the petition, the petitioners challenge only the validity of the letter/notice dt. 27th June, 1985. However, by the said letter/notice, no penalty was imposed and in fact, the petitioners were only called upon to pay the imosed penalty and informed tht if the penalty was not paid withinthe time specified therein, the vessel, tackle, apparel and furniture on the vessel would be deemed to have been distrained and further, that the vessel would be liable to be sold by the Board for the recovery of the said amount. He submitted that the penalty was actually imposed by the letter No. DC/G-2/85/2657 dt. 8th / 10th June, 1985. The said order was not at all challenged and, therefore, in the absence of such challenge, the petition is bound to be dismissed. He further submitted that the petitioners deliberately suppressed the said letter dt. 8th/10th June, 1985, because the said letter was clearly showing that there was no waiver of the penalty and the other letter, also dt. 8th/10th June, 1985, was addressed to the petitioners only for requiring them to take additional safety measures during the monsoon. This suppression, according to the learned counsel, is of serious consequences for it shows that the petitioners had approached the Court with unclean hands disentitling them to any relief. In addition, the imposition of the penalty took place in themonth of June, 1985, and the petitioners did not approach the Court challenging the said penalty up to March, 1986. Therefore, the delay and laches are fatal to the petitioners. Finally, though the action of the respondents is challenged in some grounds in the petition, the real thrust of the attack is not in the petition, but in the affidavits. No amendment of the petition was moved by the petitioners and, therefore, whatever has been brought in the affidavits to challenge the orders of the respondents cannot be considered. In this connection, reliance was placed by the learned counsel on the decision of the Supreme Court in Municipal Corporation Jabalpur v. State of M.P. .
8. As regards the first objection, it has been argued by Mr. Setalwad that first of all, the letter No. DC/G-2/85/2657 dt. 8th/10th June, 1985, is not an order imposing the penalty on the petitioners, but constitutes merely a notice calling upon the petitioners to pay the amount of Rs. 10,000/- per day towards the penalty imposed on them with effect from 16-5-1985, and, therefore, it was not necessary to specifically challenge the said order. In any event, the said letter, as well as the letter dt. 8th May, 1985, had merged in the letter/notice dt. 27th June, 1985, which was specifically challenged in this petition. Specific reference to the aforesaid two orders has been indeed made in the said letter/notice dt. 27th June, 1985, and the petitioners had been called upon to pay the aforesaid penalty immediately and informed that if the said penalty was not paid within the period specified therein, on one hand the vessel would be deemed to have been distrained, and on the other , the vessel would be sold by the Board for recovery of thepenalty amount. In addition to this, it is clear , according to the learned counsel, from the affidavit-in-surrejoinder filed by Capt. V.S. Gopinath that the decision to impose the penalty was taken by him on 22nd April, 1985. The petitioners were not at all award of this fact, for the respondents had not, at any stage, communicated to the petitioners the aforesaid decision taken on 22nd April, 1985. In the circumstances and considering the relief prayed for by the petitioners, it is clear that there was no need of specifically challenging the aforesaid letters dt. 8th May, 1985, and 8th/10th June, 1985 the same was not at all suppressed by the petitioners, but by mere oversight, copy thereof was not produced. In any event, since the said letter has merged into the letter dt. 27th June, 1985, it is obvious that the non-production of the said letter is of no consequence. Insofar as the second objection, the learned counsel contended that there are no laches at all, for, on one hand, the order passed by Capt. Gopinath is a nullity since, admittedly, the said Capt. Gopinath has acted without power and jurisdiction. Thus, the said order being ab initio null and void could have been resisted by the petitioners at any time when sought to be enforced. In this connection, reliance was placed on the decisions reported in the cases of Abdullamiyan Abdulrehman v. The Govt. of Bombay Husein Miya v. Chandubhai and Queen Empress v. Marain Chetti, (1893) ILR 17 Mad 118. Besides, the learned counsel contended that after the said letters dt. 8th May, 1985, the respondents had not only failed to take any action against the petitioners but also did not include the amounts of the penal charges in the bills they were submitting in respect of the port dues, etc., as regards the vessel DAMODARSAL. It was only in March, 1986, when the petitioners decided to take the vessel out of the Mormugao Port and sought the port clearnace unless the penal charges were paid. In the circumstances, therefore, it would be wrong to hold that there are at all laches and, in any event, if delay exists, that the same is fatal. Finally, as regards the objection that the petition is liable to be dismissed in limine because the challenge is made on grounds which had not been advanced in the petition is not sustainable for the respondents, on one hand, had ample opportunity to meet the case of the petitioners and on the other, the imposition of the penalty was by an authority without jurisdiction. Therefore, as held by the Supreme Court in Asstt. Collector, C.E. v. N.T.Co. of India Ltd., , it was possible to raise the challenge, as the petitioners did in the affidavit-in-reply.
9. There is great force in the submissions made on behalf of the petitioners in this regard. In fact, in our view, none of the preliminary objections raised by the respondents is sustainable. As rightly pointed out by the learned counsel appearing for the petitioners, first of all, the letters dt. 8th May, 1985, and the letter No. DC/G-2/85/2657 dt. 8th/10th June, 1985, do not impose any penalty on the petitioners. By the letter dt. 8th May , 1985, the Deputy Conservator, MPT had directed the petitioners to remove immediately vessel from its anchorage and to take it outside the port and futher warned that in case of failure in compying with the said direction, the petitioners would be liable to pay the penalty of Rs. 10,000/- for each day during which the vessel was kept in the same anchorage after 15th May, 1985. Then, by the aforesaid letter dt. 8th/10th June, 1985, the said Dy. Conservator merely called upon the petitioners to pay the amount of Rs.10,000/- per day toward the penalty imposed with effect from 16-5-1985 till the day of the removal of the vessel from the port area. It is clear from the wording of the above two letters that the penalty was not at all imposed by the said letters and that by the letter dt. 8/10-6-1985, a mere communication of the imposition of penalty was made and the petitioners were called upon to make the payment. In any event, as also rightly pointed out by the learned counsel for the petitioners, the aforesaid two letters, even if penalty was imposed through them, were merged in the letter dt. 27th June, 1985. Apart from this, it is also to be pointed out that the relief sought by the petitioners is a direction of this Court to the respondents to forthwith permit the port clearance of the said vessel without demanding the penalty amounts of any part thereof and to withdraw or cancel the notice dt. 27th June, 1985. This relief, in other words, is against the imposition of the penalty and to allow the port clearance of the vessel so as the same could be taken out of the port limits without payments of the aforesaid penal charges. It is clear from the record that the petitioners were not informed at least up to the time of the filing of the petition, about the decision taken by the Dy. Conservator, MPT, to impose the penalty. The said decision which was, admittedly, taken on 22nd April, 1985, was for the first time disclosed in the affidavit in-sur-rejoinder, filed in this petition by the aforesaid Dy. Conservator, MPT. This being so, it is manifest and clear that the petitioner could not have at all challenged the said decision dt. 22nd April, 1985. Apart from this, the petitioners are, in our view, entirely justified in their stand that they were fully entitled to resist the action of the respondents to enforce the decision of the Dy. Conservator, MPT, to impose the penalty. In fact, for the reasons we will in the course of this judgment, adduce, the said decision of the Dy. Conservator, MPT, was ab initio null and void, since admittedly, the said officer of the respondents had no power or jurisdiction to impose such penalty, nor ratification of his decision by the Board was at all possible. Thus,the first objection to the maintainability of this writ petition has no force.
10. In sofar as the question of the suppresion of the aforesaid letter dt. 8th/10th June, 1985, there is no material before us to justify the submission made by the learned counsel for the respondents that the said letter was deliberately suppressed with the intention to show that there was a waiver of the penalty. In any event, it appears to us to be difficult to accept this contention of the learned counsel, for a clear reference is made to the said letter/notice in the letter dt. 27th June, 1985, which was specifically impugned in the petition. Had the petitioners, for any reason, desired to suppress the said letter, they would have failed precisely for the reason that the contents of the said letter have been, though in short, fully incorporated in the letter dt. 27th June, 1985, as under:-
“And whereas the owners of the said Vessel have failed to so remove the Vessel or pay the penalty, they were again called upon vide our Notice No. DC/G-2/85/2657 dt. 10th June, 1985 to pay the amount of penalty of Rs. 10,000/- per day w.e.f. 16th May 1985 within 7 days from the date of the Notice.”
Therefore, in these circumstances, we fail to understand in what manner the non production of the said letter along with the petition will be a bar for the petitioners to get the relief sought.
11. Insofar as the laches and the alleged delay in filing the writ petition, as we have already mentioned, it is the case of the respondents that the penalty was imposed on the petitioners by the letter dt. 8th/10th June, 1985. In spite of this, the present writ petition was filed only in March, 1986. Though it would appear from these dates that, in fact, the petitioners approached the Court with delay, the fact is that we havce also to consider all the facts and circumstances of the case in order to determine whether or not there was at all a delay in approaching the Court. First of all, we find that the decision to impose the penalty was taken by the Dy. Conservator, MPT, though he had no jurisdiction to do so. Then, the said decision was not at all communicated to the petitioenrs and by the aforesaid letter/notice dt. 8th/10th June, 1985, the petitioners had merely been called upon to pay the penalty imposed. Thereafter, through another letter of the same date, the petitioners were called upon to take some measures by posting on board of the vessel some qualified officers and staff in view of the severe threat and danger she would pose to the port and safe navigation of other vessels in the stream. It is an admitted fact that the petitioners, in compliance with the direction given in the said letter dt. 8th/10th June, 1985, did place on board of the vessel the required qualified staff. No further action was taken by the port authorities to get the vessel removed from the harbour or the port, nor any action was taken by them to recover the imposed penalty. On the contrary, they continued to issue bills of the port dues in respect of the vessel DAMODAR SAL without including in the said bills the amounts of penalty. Further, the petitioners had written a letter dt. 12th Feb,1986, to the Dy. Conservator, MPT, requesting him to intimate to tnem if there were any outstanding payments to be made to the port in respect of the vessel “DAMODAR SAL” so as to enable them to make arrangements for the payments of the said dues. The respondents had not at all replied to this letter and, therefore, as rightly submitted by the learned counsel for the petitioners, an impression was created in the mind of the petitioners by this kind of conduct that the respondents had waived the penalty imposed. Further, it may also be pointed out that the Dy. Conservator, MPT, has imposed the penalty without any authority and, therefore, he has acted without jurisdiction. His order is, consequently, ab initio null and void and could not have been ratified. This being the position, as held by this Court in the cases of Abdullamiyan Abdulrehman (AIR 1942 Bom 257(FB)) and Husein Miya (supra), the petitioners were entitled to resit the enforcement of such order at any stage. This being the case, since the enforcement of the order imposing the penalty has come only when the respondents refused to give port clearance to the vessel unless the penalty imposed was paid, we are of the view that there is no delay at all in filing the present petition.
12. Insofar as the last objection, it is true that the grounds for challenging the action of the respondents advanced in the petition are different from the grounds advanced in the affidavit-in-reply and the course of arguments. Mr.Kakodar contended that the petitioners were not entitled to advance new grounds of challenge in the affidavit and in the arguments and that if they were willing to do so it was incumbent upon them to get the petition duly amended. In this connection, the learned counsel, as we have already said, placed reliance on the decision of the Supreme Court in Jabalpur Municipality’s case (supra). In the said case, the Supreme Court observed that save in exceptional cases, parties should be held strictly to their pleadings and if owing to discovery of new matter or grounds, there is need to add to or to modify the allegations either in the petition or in the counter-affidavit, the Court should insist of formal amendments being effected, for this would have a proper opportunity to know this case and meet it with appropriate defences. In the present case, as we have already said, the petitioners were not informed of the decision taken by the Dy. Conservator, MPT, on 22nd April 1985, to impose on them the penalty. The letters dt. 8th May, 1985, 8th/10th June, 1985 and 27th June, 1985, mearly called upon the petitioners to pay the penalty imposed without disclosing who had imposed the said penalty. This was brought to the notice of the petitioners only at a later stage and, therefore, they got, for the first time, an opportunity to meet the case of the respondents when the affidavit-in-reply and affidavit-in-sur-rejoinder were filed. The respondents had in the present case full opportunity to meet the case newly advanced by the petitioners. In no manner, they had been prejudiced and, therefore, the aforesaid observations of the Supreme Court are not attracted to the facts and circumstances of the case. On the contrary, as rightly pointed out by the learned counsel appearing for the petitioners, the ruling of the Supreme Court in S.D.G.Pandarasannidi v. State of Madras is more to the point. In the said case, the Supreme Court held the view that though a particular plea has not been raised by the appellant in his writ petition and though technically in such a case the High Court would not consider the reasons brought at a later stage, the fact remained that the respondents in that case had full notice of the fact that one of the grounds on which the appellants had challenged the validity of the order was that he had not been given a chance to show-cause why the said notification should not be issued. In such circumstances, the Supreme Court held that the High Court was in error in dismissing the writ petition on that ground. Similarly, in Asstt. Collector, C.E. v. N.T.Co. of India Ltd. , the question arose as to whether the Collector did or did not have the power to issue the notice impugned in that case. The Supreme Court, while dealing with question, observed that the Division Bench ought to have permitted the question to be argued subject to giving due to opportunity to the petitioning Company to meet it on such terms as the Court thought fit, even if the point was not taken in the grounds of appeal. In the circumstances of this case where, admittedly, the petitioners were not atall aware that the decision to impose penalty on them had been taken by the Dy. Conservator, MPT, on 22nd April, 1985, and where the respondents had full opportunity to meet the case raised in the affidavit-in-reply and in the arguments by the petitioners, weare of the view that the fact that the said grounds had not been advanced in the petition itself is not fatal. Hence, we also find no substance in this preliminary objection raised by the respondents.
13. We will now turn to the merits of the petition. As we have already said, Mr. Setalwad first argued that S. 39 of the Act authorises the Board to impose charges not exceeding Rs. 10,000/- per day. Section 2(b) defines “Board” as meaning the Board of Trustees constituted under the Act for a particular port. Then, S. 21 provides that a Board may, with the approval of the Central Government, specify the powers and duties conferred or imposed upon the Board by or under the Act, which may be exercised or performed by the Chairman, and the powers and duties conferred or imposed on the Chairman by or under the Act, which may also be exercised or performed by the Deputy Chairman or any officer of the Board and the conditions and restrictions, if any, subject to which such powers and duties may be exercised and performed. Now, by way of the Major Port Trusts (Amendment) Act, 1982, the expression “by way of penalty” was included in S. 39. This, according to the learned counsel, makes clear that the powers under S. 39 to impose a penalty are of a penal nature and, therefore, the powers to impose a penalty are quasi-criminal in nature and are to be exercised judicially. Reliance was placed, in this connection, on the decision of the Supreme Court in Hindustan Steel Ltd. v. State of Orissa . The learned counsel then urged that quasi-judicial functions cannot be delegated unless the statute specifically authorises such delegation, Special reliance was placed, in support of this contention, in Barnard v. National Dock Labour Board, (1953) 2 QB 18 as well as in Pradyat Kumar v. C.J. of Calcutta and in Vine v. National Dock Labour Board, 1957 AC 488. The decision to impose penalty in the present case has been admittedly taken by the Dy. Conservator, MPT, and, therefore, the said imposition of the penalty is ab initio null and void. The learned counsel further submitted that it appears from the averment made in para 7(ii) of the affidavit-in-sur-rejoinder that the case of the respondents appears to be that the power to impose a penalty conferred by S. 39 of the Act, on the Board can be delegated. However, since the said powers is a quasi-criminal one, it is rather doubtful whether the general power of delegation under S. 21 can authorise the delegation of the power to impose a penalty. In fact, the law on the point as expressed by Wade on Administrative Law, Fifth Edition, p. 325, is that in the case of important judicial and disciplinary functions, the Court may be disposed to construe the general powers of delegation restrictively. The same view was taken in General Medical Council v. U.K. Dental Board, (1936) Ch 41 and in Vine v. National Dock Labour Board (supra). Even assuming, the learned counsel further contended that S. 21 authorises delegation of the powers to impose penalty conferred by S. 39, such delegation can be made only in favour of the Chairman, and even this, if the Central Government has given its prior approval for such delegation. In any event, there cannot be any delegation in favour of the Dy. Conservator. In any case , no resolution of the Board under S. 21 has been produced and this, therefore, leads to the inference that the powers under the said S. 21 had not been at all exercised. Then, the learned counsel submitted that the purported decision taken by the Dy. Conservator, MPT, on 22nd April, 1985, is wholly without jurisdiction and ultra virus, since it has been taken by a person not authorised in law to take it. Such a decision is ab initio void. Reliance was placed, in this connection, on the decisions in the cases of Abdulmiyan Rehman v. Govt. of Bombay, (AIR 1942 Bom 257 (FB)), Hussein Miya v. Chandubhai , Queen Empress v. Marian Chetty, ((1893) ILR 17 Mad 118), Barnard v. National Dock Labour Board, and Vine v. National Dock Labour Board (supra). The learned counsel further contended that a decision which is ab initio null and void, as taken by an authority without jurisdiction, cannot be ratified as held in Barnard v. National Dock Labour Board as well as in Bowyer, Philpott and Payne, Ltd. v. Mather, (1919) 1 KB 419.
14. Mr. Kakodkar, however, dealing with the above submissions of the learned counsel for the petitioners, submitted that the Board is empowered to delegate the powers conferred on it under S. 21 of the Act. He contended that under the said Section, a power is given to the Board to delegate the powers and duties conferred or imposed upon it by or under the Act and to specify which are those powers and duties that may be exercised or performed by the Chairman. Then, in Cl.(b), it is laid down that the powers and duties conferred or imposed on the Chairman by or under the Act may also be exercised or performed by the Deputy Chairman or any officer of the Board. According to the learned counsel, reading cls. (a) and (b) of S. 21 together, it clearly flows that powers and duties which can be exercised and performed by the Chairman can also be delegated on the Deputy Chairman or any officer of the Board, for such powers were conferred by the delegation on the Chairman and are exercised and performed by the Chairman under the Act. Therefore, the submission of the petitioners that the Board could not delegate the powers conferred on it by the Act to the Deputy Chairman is not correct. He further contended that since there is a specific power of delegation under S. 21, the authorities relied upon by the petitioners in support of their case, viz., the decisions in Barnard v. National Dock Labour Board, ((1953) 2 QB 18), Pradyat Kumar v. Chief Justice of Calcutta and Vine v. National Dock Labour Board, (1957 AC 488) are not advancing thecase of the petitioenrs and , on the contrary, support the view of the respondents, for what was observed is tha delegation is not possible unless permitted by express provision of law or by necessary implication. The learned counsel further contended that the powers to impose penalty under S.39 of the Act are not quasi-criminal or quasi-judicial powers, but are merely executive powers. Under S. 39 any officer appointed on that behalf by the Board can, in cases of emergency or for reason that appear to him to be sufficient, order the master or owner or agent of any sea-going vessel not to bring such vessel along side of , or to remove such vessel from any dock, berth , wharf, quay, stage, jetty or pier belonging to or under the control of the Board, and if such notice is not complied with, the Board may charge, by way of penalty, in respect of such vessel a sum as it thinks fit, not exceeding Rs. 10,000/- per day. According to the learned counsel, the officer who passes such order or direction should be subjectively satisfied that the said order is to be imposed. The reasons for his satisfaction are purely subjective and such satisfaction is not justiciable. Then, if the decision taken by such officer is not complied with by the master, owner or agent of the vessel, the Board may charge a sum that it thinks fit to compel the vessel to be removed from the place. The expression “such sum as it thinks fit” occuring in S. 39 shows that the amount ordered to be charged is not actually a penalty, but something to compel the removal of the vessel, the expression “by way of penalty” being of no consequence, for it does not partake the nature of a quasi-judicial decision. In this background, therefore, according to the learned counsel, it would be erroneous to hold that the charge of such sum to the master, owner or agent of the vessel is penal in nature and the imposition of such charge is a result of a quasi-criminal or quasi-judicial activity. Such decision is purely administrative and, consequently, the question that such powers cannot be delegated does not at all arise.
15. Section 21 of the Act provides that the Board may, with the approval of the Central Government, specify – (a) the powers and duties conferred or imposed upon the Board by or under the Act, which may also be exercised or performed by the Chairman, and (b) the powers and duties conferred or imposed on the Chairman by or under the Act, which may also be exercised or performed by the Deputy Chairman or any officer of the Board and the conditions and restrictions, if any, subject to which such powers and duties may be exercised and performed. It is clear from the above provision of law that a general power to delegate the powers and duties conferred or imposed by the Act upon the Board is provided for. However, the expression “with the approval of the Central Government” occurring in the body of the said section warrants the inference that such delegation of powrs can be made by the Board only after getting prior approval of the Central Government. In fact, this approval of the Central Government is, in our view, a pre-condition for delegating the powers and duties conferred upon the Board by the Act. Mr. Kakodkar has, no doubt, advanced the submission that since under Cl.(a) powers and duties conferred upon the Board by or under the Act can be delegated on the Chairman and since under Cl.(b) the powers and duties conferred on the Chairman under the Act can be exercised and performed by the Deputy Chairman or any other officer of the Board, it necessarily follows that delegation of powers of the Board can be lawfully made to the Deputy Chairman or any other officer of the Board as such powers will be of the Chairman under the Act. We are unable to accept this construction of S.21, though ingenious, for if such interpretation is correct, there will be no sound reason to explain as to why two separate clauses, namely, Cls. (a) and (b), were enacted, specially when the same result could have been easily achieved by providing that ll the powers and duties conferred or imposed upon the Board by or under the Act could be exercised and performed not only by the Chairman but also by the Deputy Chairman or any other officer with the approval of the Central Government. The Legislature, however,enacted S.21 in the manner it did inserting the said Cls. (a) and (b), and this was manifestly done on purpose, taking into account the nature of the powers delegated. In our opinion, the insertion of two separate clauses was necessitated by the need to specify that out of the powers delegated to the Chairman, only some and not all, can be also exercised by the Dy. Chairman or any other officer of the Board, considering that such powrs are of a lesser importance. Be that as it may, Mr. Kakodar is, in any event, in error when he submits that the Board has absolute power to delegate the powers and duties conferred upon it by or under the Act. The general power of delegation given in S.21 of the Act is indeed not absolute, for it is qualified by the requirement of the prior approva l of the Central Government. In other words, if the requisite approval of the Central Government is not obtained, delegation of powers by the Board is not permissible and if made will be bad in law and void. We may also point out that even if under S.21 of the Act, the Board can delegare the powers conferred by or under the Act on it, the fact remains that the powers of delegation in the said Section are merely general powers of delegation, and thus the question arises as to whether the power to impose penalty can be delegated under the said Section and then whether the imposition of a penalty under S.39 is done in the exercise of an administrative or a quasi-criminal power. The answer to these questions can only be that the imposition of penalty under S.39 of the Act is the result of the exercise of a quasi-judicial or quasi-criminal power. In fact, contrary to what was submitted by Mr. Kakodkar, the expression “by way of penalty” that was inserted in the said S.39 by the Major Port Trusts (Amendment) Act, 1982, clearly indicates that the charge of a sum not exceeding Rs. 10,000/- per day is a penalty and not merely something meant to compel the vessel to be removed from the port. The said expression “by way of penalty” was inserted for the obvious reason to make it clear that the charge of a sum by the Board under S.39 is nothing but a penal charge, notwithstanding whether it would also operate as a means to compel the compliance with the directions given under the said S. 39. Now, as it is well settled delegation of quasi-judicial or quasi-criminalpowers is permissible only under an express provision of law or when such delegation is by necessary implication authorised and thus, in such cases, general powers of delegation are to be construed restrictively. We may with advantage refer, in this connection, to Wade when he says in Administrative Law, Fifth Edition, that:-
” A statutory power to delegate functions, even if expressed in wide general terms, will not necessrily extend to everything. Thus it has been held that the General Medical Council must itself exercise its disciplinary powers over dentists and cannot delegate them to its executive committee, even though it has express statutory power to act through such a committee for the purpose of its functions under the Dentists Acts. In the case of important judicial and disciplinary functions the court may be disposed to construe general powers of delegation restrictively.”
16. This too is the view taken in General Medical Council v. U.K. Dental Board ((1936) Ch 41)(supra), for in the words of Luxmoore, J. :-
“The disciplinary powers conferred on the General Council are of the highest importance, not only to the individual but to the profession generally, and I am satisfied that no amendment of the 1878 Act should be construed as altering the plain provisions of that Act requiring the decision of the General Council on disciplinary matters unless the intention is expressed in language equally clear and explicit.”
Similarly, in Vine v. National Dock Labour Board (1957 AC 488) (supra), the Court of Appeal observed that a judicial act implies that the matter must be decided by a body sitting in something like a court of justice and that it is of the essence of the conception that a tribunal judicially must decide the matter itself. It further held that it is always necessary to consider the importance of the duty which is delegated and the people who delegate and if the duty sought to be delegated is too important, this delegation cannot be done unless there is an express power.
17. We already held that the power to impose the penalty under S.39 partake of a quasi-criminal nature. This power was conferred by S.39 itself on the Board and, therefore, unless there is a specific and express provision in the Act permitting the delegation of the said power or unless such delegation is permissible by necessary implication, the Board cannot delegate it. In our view, no such express provision exists in the Act, nor such delegation becomes permissible by necessary implication. Indeed, S.21 of the Act confers only general powers of delegation and such general power is not sufficient to enable the Board to delegate its power to impose the penalty under S.39 of the Act. We draw in this regard support from the observations made by Lord Denning in Barnard’s case ((1953)2 QB 18)(supra) to the effect that “while an administrative function can often be delegated, a judicial function rarely can be. No judicial tribunal can deldgate its functions unless it is enabled to do so expressly or by necessary implication” and also from the similar view taken in Pradyat Kumar v. C.J. of Calcutta and in Vine v. National Dock Labour Board (1957 AC 488). We are, therefore, of the clear view that the Board could not have delegated its power to impose the penalty on the Dy. Conservator, MPT.
18. It is common ground that the penalty was imposed on the petitioners on 22nd April, 1985, by the Dy. Conservator. He acted, in the circumstances as aforesaid, manifestly without jurisdiction, for, it at all delegation was made, such delegation was not permissible. In the circumstances, the action of the Dy. Conservator, MPT, in imposing the penalty on the petitioners is a nullity, for the said decision having been passed by him without jurisdiction is substantially and intrinsically vitiated.
19. That apart, it is also pertinent to note that the respondents admitted that no delegation of the powers of the Board was at all made, either under S.21 or any other provision of law, to the Dy. Conservator , MPT. Nonetheless, the said Dy. Conservator sought to exercise powers not vested in him and,therefore, admittedly, acted without jurisdiction. Hence, his decision to impose the penalty on the petitioners is on his count also ab initio null and void and non est. No doubt, the respondents sought to legalise the said unlawful action taken by the Dy. Conservator, MPT, by taking the stand that the Board had ratified the said action by their resolution No.161 taken in their meeting of 19th July, 1985. In para 7(iii) of the affidavit-in-sur-rejoinder, it is indeed averred that the decision to impose the said penalty was taken by the Dy. Conservator, MPT, on 22nd April, 1985, and that this decision was ratified by resolution No.161 dt. 19th July, 1985. It will, therefore,be expedient to advert to the said decision. It reads as under:-
“Resolved that the action already initiated towards securing the removal of vessel m.v. Damodar Sal, be and is hereby ratified.
Resolved further that the proposals to dispose of the vessel deem to have been thus distrained and arrested and to recover all outstanding dues, out of the proceeds thereof, be and is hereby approved.”
It thus appears that, in fact, the said decision was ratified. Mr. Setalwad, however, argued that the purported ratification of the decision taken unlawfully and without jurisdiction by the Dy. Conservator, MPT, is bad in law. And it is so, for if the Board has no power to delegate its functions to impose the penalty in question, it has no power to ratify what has been done by the Dy. Conservator, because , as observed by Lord Denning in Barnard’s case, “the effect of ratification is to make it equal to a prior command; but just as a prior command, in the shape of a delegation, would be useless so also is a ratification.” We are further supported by the view taken in Bowyer, Philpott and Payne, Ltd. v. Mather ((1919) 1KB 419)(supra). That apart, even if possible, we find that the purported ratification is not valid, for it is apparent that by the said resolution No. 161, the Board merely proposed to ratify the action already initiated towards securing the removal of vessel m.v. Damodar Sal without, it seems, considering the relevant and material facts and circumstances , particularly the case of the petitioners and the reasons not only to impose the penalty but also to impose it at the maximum. It would thus appear that the purported ratification was arbitrarily done. In fact, a penalty should not be imposed merely because it is lawful to do so and in any event, before a penalty is imposed, all the relevant circumstances must be taken into consideration and all the canons appropriate to the determination of the penalty should shape the decision of the authority, as observed by the Supreme Court in Hindustan Steel Ltd. v. State of Orissa and by the Andhra Pradesh High Court in G.Y. Jadav v. Collector, Central Excise .
20. We already held that the decision taken by the Dy. Conservator , MPT, on 22nd April, 1985, imposing the penalty on the petitioners is a nullity and non est since he acted without jurisdiction. No ratification was thus possible. The said decision indeed was, as rightly pointed out by the learned counsel for the petitioner, a stillborn and, consequently, could not have been given life by way of a ratification. Mr. Kakodkar, however, contended that even if no ratification was possible, the resolution No. 161 is to be construed as a decision taken on 19th July, 1985, by the Board to impose the penalty and hence, the petitioners are bound to pay it, at least, from the date of the said penalty. There is no merit in this submission of the learned counsel, for as correctly pointed out on behalf of the petitioners, the said resolution was taken considering only the note submitted to the Board by the Dy. Conservator , the Secretary and by another officer. This note is annexed to the affidavit-in-sur-rejoinder and it only gives a sketchy account of the relevant facts. The case of the petitioners is not reported and on going through the minures of the said meeting, it is on one hand, apparent that the Board decided to ratify the action taken by the Dy. Conservator without applying its mind to all the facts and circumstances of the case,and on the other, it would appear that the Board decided to ratify only the action taken towards securing the removal of the vessel Damodar Sal from the port. In fact, it is not specifically stated that the decision to impose the penalty was ratified, and further, that the penalty would be at the maximum. We already observed that a penalty should not be imposed merely because it is lawful to do so and that, therefore, while imposing a penalty the authority should take into consideration all the relevant circumstances. Thus, a decision to impose a penalty without considering all the relevant circumstances becomes arbitrary. In the present case, we find ourselves entirely in agreement with the learned counsel for the petitioners, particularly when he submits that the resolution No. 161 was passed without considering all the relevant facts of the case. We say so because it is apparent from the material placed before us along with the affidavit-in-sur-rejoinder that the only data made available to the Board was that contained in the note prepared by the Dy. Conservator, the Secretary and by another officer of the respondents. That is a very sketchy note and we are unable to find that there was a proper application of mind to the main question as to whether or not the penalty was to be imposed in the circumstances of the case and in the affirmative, as to whether such penalty should be at the maximum. In the circumstances, we are of the clear view that the Board did not take any independant decision to impose the penalty and in any event, if scuh decision was taken, the same is arbitrary since the appropriate canons for the determination of the penalty had not been followed.
21. The next contention of Mr. Setalwad had been that even assuming that the Dy. Conservator, MPT, could have taken the decision to impose the penalty, nonetheless, the said decision is bad in law because it was taken even before notice to remove the vessel was given to the petitioners. In fact, according to the learned counsel, admittedly, the decision, to impose the penalty on the petitioners was taken by the Dy. Conservator, MPT, on 22nd April, 1985, but the notice to remove the vessel from the port was given only on 8th May, 1985. The decision is thus, according to the learned counsel, violative of S.39 of the Act which provides that if any officer appointed by the Board, in cases of emergency or for any reason which appears to him sufficient, by notice in writing,orders the masters or owner or agent of a vessel to remove the said vessel from the port and if such notice is not complied with, only then the Board may impose a penalty. We are, however, unable to agree with him in this regard. In fact, by the letter dt. 8th March 1985, addressed to the petitioners by the Dy. Secretary, MPT, the petitioners were requested to remove the vessel from the Harbour immediately and in any case, before 15th May, 1985, on the ground that the said vessel was likely to pose severe threat to the smooth navigation of the barges through the Zuari river as also likely to block the navigational channel of the port and cause damage to the structures on shore. It was also added that since the mansoon season was fast approaching, the petitioners’ vessel was posing a severe threat and danger to the safety of the port channel and vessels in the port. Then, by another letter dated 13th March, 1985, the said Dy. Secretary again directed the petitioners to remove their vessel from its anchorage and, this time, to remove it out of the port immediately, since the vessel was posing severe threat and danger to the port. Then, again, by a letter dt. 4th April, 1985, the direction to remove the vessel immediately from the port was reiterated and the petitioners were further called upon to show cause why penal charges should not be levied on the said vessel with effect from 16th Mar., 1985. The petitioners showed cause by their letter dt. 19th April, 1985, and only thereafter, the said decision to impose the penalty was taken by the Dy. Conservator, MPT, on 22nd April, 1985. The letter dated 8th May, 1985, once again directs the petitioners to remove immediately the vessel. In this background and in view of the aforesaid letters dt. 8th, 13th Mar., 1985 and 4th April, 1985, we find no force in the submission of the learned counsel for the petitioners that the decision to impose the penalty was taken even before notice in writing to remove the vessel was given to the petitioners. It is no doubt true that the letters dt. 8th and 13th Mar., 1985, and 4th April, 1985, are signed by the Dy. Secretary of the respondents and not by the Dy. Conservator, but this circumstances is of no consequence, for the petitioners were actually directed on behalf of the respondents to remove the vessel from the port area.
22. The learned counsel for the petitioners then contended that reasons for alleging that the vessel was posing danger were not given in the notice given to remove the vessel from the port area. In fact, it was only in the affidavit-in-reply that the respondent sought to give reasons though as observed in Mohinder Singh v. Chief Election Commr. , that is not permissible. Even then, the only reasons given in the affidavit-in-reply to justify the decision are that the vessel Damodar Sal was not properly maintained and manned. However, the vessel had been put in order before the impugned action was taken as the machinery was repaired in the month of April, 1985, enabling her shifting within the port area. This, according to the petitioners, become clear from their letter dt. 19th April, 1985 (Exhibit ‘D’ to the petition), which was received by the respondents. Also, qualified personnel were placed on board in July, 1985, as was set out by the petitioners in their letter dt. 2nd Aug., 1985. In the circumstances, therefore, where the vessel had been repaired and the qualified personnel had been repaired and the qualified personnel had been placed on board of the same, the reasons given in the affidavit-in-reply had, according to the learned counsel, become insufficient to justify the decision, because after the repair of the machinery and the placing of the staff on board, the vessel ceased to pose any danger to the channels of the port and to the other vessels Mr. Kakodkar, however, joined issue and contended that it had been made clear to the petitioners right from the first letter dt. 8th Mar., 1985, that Damodar Sal was posing danger to the other vessels in the port. This position was consistently reiterated and the fact that a letter was written to the petitioners by the respondents requiring them to place on board of the vessel some qualified staff, in no manner, justifies the inference that , by the placing of the said staff on board, the vessel had ceased to be a danger to the channels of the port and to the other vessels. In fact, the said direction was only by way of caution requiring additional safety measures to be taken up to the time the vessel was removed from the port area. Thelearned counsel further submitted that there was no need whatsoever for the Dy. Conservator, MPT, to justify his direction to the petitioners to remove the vessel from the port area, for under S.39, the only requirement is that an officer appointed in that behalf by the Board should be satisfied that there is sufficient reason to order the removal of a vessel from any place in the port. This satisfaction is a subjective satisfaction and it is not open to the petitioenrs to challenge the reasons why the decisions was taken.
23. Section 39 of the Act provides that any officer appointed by the Board in that behalf may, in cases of emergency or for any reason which appears to him sufficient, by notice in wirting, order, interalia, the removal of the vessel. From the wording of the said Section, it would, in fact, appear that the decision to order the removal of a vessel from the port is taken by the concerned officer subject to his subjective satisfaction. If he, in his discretion, is satisfied that there are sufficient reasons to justify the removal of the vessel, it would appear that his decision, taken for safety reasons, is final. We are, therefore, in agreement with Mr. Kakodkar when he submits that no reasons were necessary to be given to justify the order of the Dy. Conservator to the petitioners to remove their vessel from the port area. We also find force in the submission of Mr. Kakodkar that the letter of the respondents requiring the petitioners to place on board of Damodar Sal qualified personnel does not imply that by placing such personnel on the ship, the vessel was ceasing to pose danger to the channels of the port and to the other vessels. This being so, we are unable to agree with the petitioners as regards this submission.
24. It was last contended on behalf of the petitioners that by their conduct and action, it is clear that the respondents had waived the penalty after July, 1985. It was argued that thought the letter dt. 27th June, 1985, was sent to the petitioners, nonetheless, no action was taken either to recover the penalty imposed or to distrain and to sell the vessel. On the contrary, the respondents continued to issue bills of the port dues in respect of the vessel in question and did not include in such bills any part of the amount of the penal charges. Then, in spite of the petitioners requesting them to inform whether there were any amounts outstanding, the respondents had not replied to the petitioners. In the circumstances, according to the petitioners, it is clear that though the penalty had been imposed, the respondents had waived and decided not to recover it. We are, however, unable to accept this submisiion of the petiitoners. It is clear tht though the penalty had been imposed, though by an authority without jurisdiction, and then , the matter was pursued by the Dy. Conservator, MPT, and by the Board. The fact that no action was ten to recover the amount of penalty does not mean that there was a waiver. In any event , we may point out that the question of waiver does not at all rise and that thedelay in enforcing the penalty would merely show, at the most some negigence on the part of the concerned officers of the petitioners and nothing else.
25. This petition, therefore, succeds on the ground that the penaltym,, having been imposed by an Authoritywho had no jurisdiction, i s ab initio initio null and void. The rule is, consequently, made absolute in terms or prayer (a), Cost by the respondents. Petition allowed.