Kerala High Court
M.K.Uthaman vs State Of Kerala on 24 March, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
Thursday, the 24th day of March 2022 / 3rd Chaithra, 1944
WP(C) NO. 6709 OF 2022(K)
PETITIONER:
M.K.UTHAMAN, AGED 53 YEARS, S/O.M.K. KUMARAN, RESIDING AT
MANAPPURATHU HOUSE, WARD 8, THAIKATTUSSERRY GRAMA PANCHAYAT,
MANAPPURAM P.O., CHERTHALA, 688 526.
RESPONDENT:
STATE OF KERALA, REP. BY THE SECRETARY OF DEPARTMENT OF FISHERIES
AND PORTS, SECRETARIAT, THIRUVANANTHAPURAM 695 001.
Writ petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be
pleased to stay the operation of Kerala maritime Board (Amendment)
Ordinance, 2022, and / or restrain the Respondent and its officers from
exercising powers or committing any act pursuant to the Kerala Maritime
Board(Amendment)Ordinance, 2022, specifically Sections 3,4,5,7,10 and 11
of the Kerala Maritime Board(Amendment)Ordinance,(amendments made in
3,8,9,14,90,91 Kerala Maritime Board Act 2017) till the disposal of this
Writ Petition, in the interest of justice.
This petition coming on for orders upon perusing the petition and
the affidavit filed in support of WP(C) and upon hearing the arguments of
M/S. V.M.KRISHNAKUMAR & P.R.REENA Advocates for the petitioner and of
GOVERNMENT PLEADER for the respondent, the court passed the following:
P.T.O.
P.V.KUNHIKRISHNAN, J
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W.P.(C) No.6709 of 2022
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Dated this the 24th day of March, 2022
ORDER
The writ petition is filed challenging the constitutional
validity of Kerala Maritime Board (Amendment) Ordinance,
2022. The writ petition is already admitted. The senior counsel
Sri.Ranjit Thampan, instructed by his retaining counsel,
insisted for an interim order. The prayer in the interim relief is
to stay the operation of Kerala Maritime Board (Amendment)
Ordinance, 2022 or restrain respondents and its officers from
exercising the powers or committing any Act pursuant to the
Kerala Maritime Board (Amendment) Ordinance, 2022,
specifically sections 3, 4, 5, 7, 10 and 11 of the Kerala
Maritime Board (Amendment) Ordinance.
2. Since the prayer in the interim relief is to stay the
operation of the ordinance or to restrain respondents from
exercising powers based on certain sections in the amended
Act, this Court raised a doubt about the jurisdiction of this
Court to pass such orders by way of interim order. Therefore,
the case was adjourned for hearing the prayer for interim
orders.
3. Heard senior counsel Sri.Ranjit Thampan and also the
Advocate General for the State.
4. The senior counsel relied the judgment of the apex
court in Dr.Jaishri Laxmanrao Patil v. The Chief Minister
& another (Civil Appeal No.3123 of 2020) and submitted
that in appropriate case the court is not disabled from passing
interim orders. On the other hand, the Advocate General relied
the judgment of the Apex Court in Health For Millions v
Union of India and others [(2014)14 SCC 496] and
submitted that it is a well settled position of law that in matters
involving challenge to the constitutionality of any legislation
enacted by the Legislature and the rules framed thereunder,
Courts should be extremely careful in passing an interim order.
5. I will decide first the maintainability issue regarding the
issuance of interim orders in a case in which constitutional
validity of an amendment Act is challenged. It is a settled
position that there is always a presumption in favour of the
constitutional validity of a legislation. Normally interim orders
will not be passed to stultify statutory provisions. But as
observed by the apex court in the above cited judgments, if
the court is fully convinced that a particular enactments or
rules are ex facie unconstitutional and the factors like balance
of convenience, irreparable injury and pubic interests are in
favour of passing an interim order, the court can pass interim
orders.
6. Therefore, the question to be decided for passing
interim order is whether the enactment is ex facie
unconstitutional and also the factors like the balance of
convenience, irreparable injury and public interests are in
favour of passing an interim order. The senior counsel Ranjit
Thampan mainly prayed for a stay of Section 10 in the Kerala
Maritime Board (Amendment) Ordinance, 2022, by which there
is drastic changes made in Section 90 of the Original Act. In
clause (a) of Section 90(1) of the Original Act instead of the
words "on account of grave emergency," the words "for
reasons stated in the order" is substituted by way of an
amendment. Similarly in clause (b) of Section 90(1) instead of
"supersede the Board for such period not exceeding six months
at a time, as may be specified in the notification," the words
"appoint an Administrator for discharging the functions of the
Board for a period as may be specified in the notification" is
substituted. The proviso to Section 90(b) is also deleted. As
per the proviso, the Government shall give reasonable
opportunity to the Board to show cause why it should not be
superseded. The senior counsel prayed for staying these part
of the amendment. Since the proviso to Section 90(b) is
completely omitted by which an opportunity of hearing is
denied to the aggrieved person, this Court requested the
Advocate General to address this point also. The Advocate
General submitted that the opportunity of hearing is given to
the Board as per the unamended Act. There are certain
reasons for deleting the same which is narrated in the
statement and Advocate General submitted that a detailed
counter affidavit also will be filed. The Advocate General
submitted that the petitioner is only one of the Board member.
The Advocate General submitted that the Board is not in
existence now after the amendment, of course the same is
disputed by the senior counsel who is appearing for the
petitioner. According to the Advocate General, there is no
Board in existence.
7. It is true that several other legal contentions are raised
by the counsel for the petitioner relying on the decisions of the
apex court. Since only a member of the Board challenge the
Amendment and Board is not challenging the same, I think
there is no immediate necessity to pass any interim order.
8. This writ petition can be heard immediately after
vacation. In the meanwhile, nothing will happen because there
is no Board in existence according to the State. Constitutional
validity of the Amendment can be considered at the time of
final hearing.
With the above observation, the prayer for interim order
is rejected.
Sd/-
P.V.KUNHIKRISHNAN, JUDGE
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24-03-2022 /True Copy/ Assistant Registrar
