High Court Refuses To Grant Interim Stay On Operation Of Kerala Maritime Board (Amendment) Ordinance, 2022

The Kerala High Court has declined to grant interim relief in the plea challenging the constitutionality of the Kerala Maritime Board (Amendment) Ordinance, 2022.

Justice P.V. Kunhikrishnan noted that since only one of the Board members had raised a grievance, the matter could be decided after the vacation while adding that a stay was not necessary for the meantime since the Board was not in existence yet.

"It is true that several other legal contentions are raised by the counsel for the petitioner...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."

The petitioner appearing through Senior Advocate Ranjit Thampan insisted that the impugned Ordinance be stayed or the State be restrained from exercising powers or committing any act pursuant to the Ordinance.

He specifically prayed that no action be taken in furtherance of sections 3, 4, 5, 7, 10 and 11 of the Ordinance. It was argued that in appropriate cases, the court is not disabled from passing interim orders. 

The Senior Counsel mainly prayed for a stay of Section 10 by which drastic changes were made in Section 90 of the Original Act:

(1) In Section 90(1)(a) of the Original Act instead of the words "on account of grave emergency," the words "for reasons stated in the order" was substituted through the amendment.

(2) In Section 90(1)(b) 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" were substituted.

(3) The proviso to Section 90(b) was also deleted. As per the proviso, the Government was to give a reasonable opportunity to the Board to show cause why it should not be superseded. The senior counsel prayed for staying these parts of the amendment.

However, the Advocate General relied on Health For Millions v Union of India & Ors [(2014)14 SCC 496] and submitted that it is well settled that in matters challenging the constitutionality of any legislation or the rules framed thereunder, Courts should be extremely careful in passing an interim order. 

The Advocate General further submitted that the petitioner was only one of the Board members and that the Board was not constituted yet after the amendment.

The Court noted that there is always a presumption in favour of the constitutional validity of a legislation.

It was also observed that although normally interim orders will not be passed to stultify statutory provisions, if the court is fully convinced that a particular enactment or rules are ex facie unconstitutional and the factors like the balance of convenience, irreparable injury and pubic interests are in favour of passing an interim order, the court can pass interim orders.

"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."

As such, the relief for an interim order was rejected. 

Case Title: M.K. Uthaman v. State of Kerala 

Click Here To Read/Download The Order