With the Kolkata Port Trust (KoPT) and Dhamra Port locking horns on the transloading issue, the shipping ministry is pushing the Planning Commission to come out with guidelines on the use of sea waters within the Indian territory.

A ministry official told FE that since sea water is a national property, the Planning Commission should formulate guidelines on how to make best use of this resource for the benefit of the nation. In fact, the Planning Commission had laid a road map in 2002 for making the best use of the water resources but it has no clear guidelines on the use of sea water.

Dhamra Port ? a JV between the Tatas & L&T ? has demanded exclusive rights on sea waters challenging Parliament?s competence to extend the limit of major ports.

Abhijit Sen, Plan panel member in charge of Orissa, said state governments can allot coastal areas to develop ports or other properties in compliance with the Coastal Regulation Zone (CRZ). But sea water is a national property and states have no right to demand exclusivity of territorial waters for facilitating private ports to operate, said AK Srivastava, joint secretary, shipping.

While the major ports, under the Major Port Trust Act of 1963, is a central subject, the private ports, termed as minor or non-major ports, is a concurrent subject. Although the Centre has the power to fix the boundaries of navigational channels leading to a port, the state has no such power. The minor ports, under the concurrent list, has to work within the boundary of navigational channels fixed by the Centre.

But the state legislature, according to the seventh schedule of the Constitution, ?can legislate in respect of non-major ports, subject to any legislation of the Parliament of India. Similarly, any state government?s executive order/notification will be subject to any notification or order of the central government.?

So, according to the existing law, the state cannot supersede any notification of the central government, which both the Orissa government and the Dhamra Port authorities have challenged.

The Centre, through an October 2010 notification, extended KoPT?s limits (of navigational channels) up to Orissa, which according to the Dhamra Port authorities as well as the Orissa government has encroached on their territorial waters.

KoPT wants to set up a transloading facility on the Bay of Bengal, ahead of Sandheads, for which it has already got responses against an

RFQ. But Dhamra Port authorities contend that it would block the passage to its port. KoPT argues that since it is national waters, everyone has the right to use it and there would be no problem in both Dhamra port and KoPT using the water together.

However, the ministry is concerned over the fact that if the states like the Centre want power to fix boundaries of navigational channels, then it would be difficult to have free waters at a later stage.

In fact, Orissa has allotted the entire coastline to around eight private players to develop minor ports, of which so far only Dhamra has come up. If Dharma is given an exclusive right on the waters, then every private port that would come up in the country, could ask for exclusive right on waters.

So it would be better if the Planning Commission stepped in to define the ways of using sea waters to keep both trade interest and define Centre and states? powers, shipping ministry officials feel.