Sabyasachi Mukharji, J.
1. The petitioner is a partnership firm registered under the Indian Partnership Act. The petitioner states that the petitioner under an actual user's import licence imported diverse consignments of G. P. Sheets which were duly landed from the relative vessels at the Port of Calcutta and thereafter taken charge of and stored in sheds and warehouses belonging to the Commissioners for the Port of Calcutta who are the respondents to this application. Upon landing of the said goods the petitioner submitted through its clearing agents to the Customs Authorities, Calcutta, the relative bills of entry and complied with the Import Trade Control formalities for the clearance of the goods. But the clearance thereof was withheld. In consequence the goods remained for a considerable period of time in the custody of the respondent. Pending the Customs clearance of the goods the same were caused to be removed by the petitioner into the bonded warehouse and the last of such removal took place on the 13th June, 1968. At the time of removal the petitioner duly paid to the respondents wharf rents on divers dates in May and June, 1968 aggregating to a sum of Rs. 1,73,933.10 P. The petitioner is the owner of the said goods. The Customs authorities initiated proceedings against the petitioner for the purpose of confiscation of the said goods. The said proceedings ultimately terminated in favour of the petitioner and the Central Board of Excise and Customs by an order dated 8th December, 1969 permitted release and clearance of the goods. The petitioner contends that by virtue of the Notification which was prevalent at that time and which will be noticed later on, the petitioner was entitled to a refund of the wharf rent paid to the respondents for the detention of the goods in the warehouse of the respondent under circumstances mentioned hereinbefore. On the 14th June, 1968 the petitioner made two applications for registering an interim claim for refund of rent charges by reason of the detention of the goods and inasmuch as the said goods were still being detained by the Customs authorities, according to the petitioner all the relevant documents could not be filed with the respondent along with the said two applications both dated 14th August, 1968. The petitioner expressed the hope that the petitioner would be able to have the said goods released and also to obtain the requisite certificate from the Customs authorities. The petitioner undertook to submit such documents to the respondent as soon as the same were available and the said goods were allowed to be cleared by the Customs authorities. Upon receipt of the said two applications by a letter dated 4/6th September, 1968 the respondents stated as follows:--
'Re:-- Refund of rent charges on the ground of detention of goods by Customs landed ex S. S. 'Mitaka Maru' and S. S. 'Eastern Maid'.
2. Claims for refund of Port Commissioner's charges are required to be preferred within the stipulated time limit of three months from the date of last delivery along with the relevant documents and P. C. vouchers in original. Where Customs detention certificate is not available at the time of lodging claims; a formal claim supported by the original P. C. receipts and a copy of the letter written to the Customs authority for issue of detention certificate should be submitted within the time limit.
3. 'As the above formalities have not been complied with your above letter cannot be treated as a valid claim which please note'. In reply to the aforesaid letter the petitioner by a letter dated 18th October, 1968 intimated to the respondent that inasmuch as the matter of Customs clearance of the said goods was pending before the Central Board of Excise and Customs at New Delhi, the original rent receipts granted by the respondent could not be produced immediately and the said receipts would be filed with the respondent as soon as the said matter was finally disposed of by the Central Board of Excise and Customs and appropriate wharf rent exemption certificates were issued in favour of the petitioner. On or about 8th December, 1969, the Central Board of Excise and Customs at New Delhi passed an order for remittance of the fine in full imposed in lieu of confiscation. On or about 1st September, 1970 the petitioner received two wharf rent exemption certificates from the Customs authorities both dated 25th August, 1970. On or about 24th November, 1970, the Collector of Customs issued in favour of the petitioner two further wharf rent exemption certificates both dated 24th November, 1970. On or about 26th November, 1970, the petitioner filed the said four certificates together with the relative wharf rent receipts with the respondent and prayed that wharf rent paid as aforesaid should be refunded. In answer to the said claim mentioned hereinbefore, the respondent by a letter dated 25th/27th January, 1971 informed the petitioner that inasmuch as the claim had been lodged after the expiry of the time limit, it was regretted, that the same stood barred by limit of time. In consequence, they returned the vouchers and other documents submitted by the petitioner. Being aggrieved by the said communication and letter, the petitioner has moved this application under Article 226 of the Constitution for a Writ in the nature of Certiorari quashing the said order contained in the letter of 4th/6th September, 1968 and 25th/ 27th January, 1971 for a Writ in the nature of Certiorari calling upon the respondents to transmit and to certify to this Court the entire records and proceedings relating to the said order dated 4th/6th September, 1968 and 25th/27th January, 1971 passed by and or on behalf of the respondent rejecting the petitioner's claim for refund of the wharf rent and for a Writ in the nature of Mandamus commanding the respondent to forthwith refund the said sum of Rs. 79,896/-being the amount of wharft rent paid in excess and a Writ in the nature of Mandamus directing the respondents to recall the said order of the respondents and for other consequential reliefs.
4. Counsel for the petitioner contended that under the provisions of the Notification issued by the Commissioner for the Port of Calcutta the imposition of wharf rent was beyond the power in the sense that the petitioner's goods having been detained for the customs clearance in the circumstances mentioned hereinbefore, the respondent was entitled to charge a particular rent and the petitioner having paid higher than the petitioner was entitled to, the refund of the excess rent should be made because the excess amount was now being retained by the Commissioners for the Port of Calcutta without any legal authority. It was, secondly, contended that the Notification issued by the Commissioners for the Port of Calcutta fixing the rate of charges to be paid including the rate of charge to be paid under circumstances in which the goods of the petitioner were detained in the warehouse of the respondent was statutory in character because it was framed under the provisions of the Calcutta Port Act, 1890. Therefore, it was argued that in retaining sums of money in excess of the sums that the respondent was entitled to for the storage of goods under circumstances mentioned in the petition, the respondent was acting in violation of statutory right and/or obligation. It was lastly contended that the retention of the sums of money was arbitrary and in violation of the statutory provisions and/or Notification issued by the Commissioner for the Port of Calcutta and it was argued that in those circumstances the Court had jurisdiction to direct refund of the sums of money so realised or retained by the respondent.
5. Counsel for the respondent, on the other hand, contended that there was no violation of any statutory provision by the respondent in the facts and circumstances of the case. It was urged that the notification fixing the rates and charges and including the rates and charges for the storage of goods in the warehouse under circumstances mentioned hereinbefore was not statutory in character and as such the petitioner had no right to seek enforcement by means of an application under Article 226 of the Constitution. It was contended that the Notification issued in this case was not statutory in character. It was then contended that the relationship between the petitioner and the respondent was of a person who had kept his goods in the godown of the respondent and it was contractual and the relationship was based not on statute but on other legal obligation. Therefore for violation of the contractual or other legal obligations not being statutory in character, the petitioner was not entitled to any relief under Article 226. Lastly, it was contended on behalf of the respondent that where there was no obligation imposed by any statute to refund, in an application under Article 226 the petitioner could not seek an order directing refund of the said sums of money. Several decisions were cited from the Bar, some of which I shall later on discuss.
6. The Commissioner for the Port of Calcutta is a body corporate constituted under Section 4 of the Calcutta Port Act, 1890. The said body discharges certain functions and is given certain powers as mentioned in the said Port Act, 1890 as amended from time to time. The Act was passed to consolidate and amend the law relating to the Port of Calcutta and for the appointment of the Commissioners for the Port of Calcutta. The business in the Port of Calcutta is regulated by the said body constituted under the said Act. Under Section 106 of the said Act the Commissioners have been given power to frame scale of tolls, rates, charges and fees in respect of vessels plying within the limits of Port and in respect of persons thereon. It provides as follows:--
'106. The Commissioners shall also frame a scale of tolls, (rates, charges, and fees), annual or other, to be paid by the owners of * * vessels plying (whether for hire or not and) whether regularly or occasionally within, or partly within and partly without the limits of the port (in respect of such vessels and of persons whether in charge of, or on board, such vessels, and also in respect of the licensing, registration and regulation of such vessels and persons):
Provided that no such tolls, (rates, charges and fees) shall be chargeable in respect of vessels which are liable to pay port dues under the provisions of Schedule I of the Indian Ports Act, 1889.'
Section 107 provides that such scales of tolls, dues, rates and charges shall be adopted by the Commissioners in meeting, and shall be submitted to the Central Government and after receiving the approval should be published in the official gazette. Section 108 authorised the Commissioners to charge additional general or differential tolls etc., on all or any portion or description of goods and to provide for payment or debt. Section 109 is in the following terms:--
'109. Such (additional general or differential) tolls, dues, rates and charges shall be fixed and adopted in accordance with a resolution passed by the Commissioners at a meeting, and shall be submitted to the Central Government; and if the same shall be approved by it, it shall be published in the Official Gazette and shall forthwith come into operation and remain in operation until altered or revoked by the Commissioners in meeting, with the sanction of the Central Government; and shall be leviable and recoverable in like manner as any other tolls, dues, rates and charges payable under this Act.'
7. Section 109-A is in the following terms:--
'109-A. The Commissioners in meeting may, in special cases, for reasons to be recorded in writing, remit the whole or any portion of the tolls, dues, rates or charges leviable according to any scale for the time being in force under Section 107 or Section 109.'
8. Section 111 provides for recovery of tolls in arrear and under Sub-section (2) of the said Section it is provided that toils dues, rates and charges in respect of goods to be landed should become payable immediately on the landing of the goods. Then Sub-section (3) of the said section provides that tolls, dues, rates and charges in respect of goods to be removed from the premises of the Commissioners or to be shipped for export, shall be payable before the goods are removed or shipped. Under the provisions of Section 107, Sub-section (1) certain schedule of charges were approved by the Central Government and a Notification to that effect was issued being Notification No. 325. Section 6 of the said Notification deals with rent. Clause (1) deals with the rent normally payable. There are certain exceptions mentioned and in exception under Clause (6), item 6, it is provided as follows:--
'Exception:-- (1) When the removal of goods is delayed owing to -
(a) restrictions in railway booking, the Commissioners may, if they so wish, charge rent at the rates shown in the schedule below, instead of the rates payable under Section 6-A, from the day following the date of acceptance of Forwarding 'Note' until the date of loading,
(b) detention of goods by the Customs authorities for reasons other than special examination and chemical test under Section 17 of the Customs Act, 1962, rent is charged at the rates shown in the schedule below from the first day after the expiry of the rent-free period or the actual date of detention until the second clear working day after the date on which the goods were released by the Customs authorities. The Commissioners however, reserve the right to apply the concession in rent charges for a lesser period if in their opinion, the period certified by the Customs authorities is found to be unduly long having regard to the circumstances of the case.........
9. On goods detained in the Port on account of analytical tests under the Drugs Control Act and compliance with Import Trade Control formalities, rent will be levied at one-sixth for the first sixty days, one-third for the next thirty days, one-half for the next thirty days, and two-thirds for the next thirty days of the highest rate applicable under Sub-section (A) of Section 6 provided that the detention in each case is certified by the Customs.'
10. It appears, therefore, that under the Notification the petitioner was liable at the time of the removal of the goods to pay rent in the manner as the petitioner has paid. It also appears from the Notification that the petitioner was entitled to a refund under the circumstances on which the petitioner's goods had been detained in the godown of the respondent. As mentioned hereinbefore a good deal of argument was advanced on the question whether the Notification framed under the provisions of Section 107 is statutory in character. In the case of Life Insurance Corporation v. N. Banerjee, (1971) 75 Cal WN 26, the Division Bench of this Court to which I was a party, had occasion to consider the effect of the regulations framed under the Life Insurance Corporation Act and violation thereof in cases of termination of employment of the employees. It was held that where Life Insurance Corporation of India terminated the employment of the employees not in violation of the statutory provisions but in violation of regulations which were not statutory in character, though framed under the statute, it was not amenable to jurisdiction of Article 226 of the Constitution. In the case of Indian Airlines Corporation v. Sukhdeo Rai, : (1971)ILLJ496SC , the Supreme Court had occasion to consider this aspect of the question and noted the aforesaid decision of the Division Bench of this Court. The Supreme Court observed that Section 45 of the Air Corporation Act, 1953 did not cast any obligation upon the Indian Airlines Corporation to appoint employees under particular type of contract or to terminate them on specific grounds. Hence though Corporation's employee was dismissed in contravention of the Regulations made under the Act, the dismissal could not be declared null and void. It is not necessary in my opinion, for the purpose of this application to decide whether the Notification framed under the provisions of Section 107 of the Calcutta Port Act, 1890 is statutory in character. It, however, appears to me that the Commissioners for the Port of Calcutta can only charge that amount of rates and tolls which they are authorised under the provisions of the Act. That provision is to be found in Sections 106 and 109 read with Section 111 of the Act. The Commissioners for the Port of Calcutta being a statutory body can, therefore, not, charge anything which is not permissible under the provisions of Sections 106 and 109 and 111. It is true that at the time when the goods were removed the Commissioners for the Port of Calcutta were entitled to insist on the payment of the full rent; but inasmuch as the circumstances for which the goods were detained were, as mentioned in the petition, due to the conduct of the Customs, the petitioner was entitled to refund. The respondent contended that the petitioner's claim for refund had not been made in time. There is no statutory limit fixed for making any claim for refund. There is no statutory form fixed for making any claim for refund. The only plea upon which the respondent has refused to entertain the claim of the petitioner was that the claim was not lodged in time. The statute his not fixed any period of time during which any claim has to be made against, the respondent though the statute has fixed a period of time for filing the suit against the respondent for any claim. The statute has, however, given the Commissioners for the Port of Calcutta a power in special cases to remit any portion of the tolls as mentioned hereinbefore. It is true the statute has given power to the Commissioners by using the expression 'may' and 'may' is permissive expression; but there are cases wherein as soon as the person who is entrusted with, a power on certain conditions it becomes a duty to exercise it. Reliance may be placed in Craies Statute Law, 6th Edition, p. 284 and p. 285 and also the observations of Lord Cairns in the case of Julias v. Bishop of Oxford, (1880) 5 AC 214 at p. 222. In a case like this it appears to me that where the respondent being a statutory body had realised certain sums of money which may become refundable then It is the bounden duty, if there is no other impediment, for the respondent to remit the whole or any portion of the tolls. It was to meet this and this type of situation that the respondents have been given this power.
11. Reliance was placed by counsel for the petitioner on the decision of the Supreme Court in the case of A. K. Kraipak v. Union of India, : 1SCR457 fOR the purpose of this application it is not necessary for me to decide whether the order in question was administrative or quasi-judicial or whether it was not an order at all. For the purpose of this application it is sufficient to hold that the respondent being a statutory body should have discharged the functions not in an arbitrary manner but for the purpose for which the powers have been given to it under the statute. No justification or argument was made before me that on the merit of the question that the petitioner was not entitled to get any refund or remission of these sums of money from the respondent. In those circumstances it appears to me that the plea on which the respondent has refused to consider or entertain the claim of the petitioner cannot be sustained. The respondent has not been given that right to reject the claim on that plea. On the other hand, the respondent has been given the power to consider in special cases the question of remission of tolls paid. The respondent fixed a rate by its own Notification. Even if the Notification is not statutory and the petitioner and the parties dealing with the respondent are acting on the basis of that Notification, in those circumstances, in my opinion, it would he improper and unjust to allow the statutory body to arbitrarily refuse the claim of a person without any statutory sanction for such refusal. As mentioned hereinbefore some argument was advanced whether the claim for refund should be entertained by this Court. Counsel for the petitioner drew my attention to the decision of the Supreme Court in the case of State of Madhya Pradesh v. Bhailal Bhai, : 6SCR261 where the Supreme Court held that where sales tax, assessed and paid by the dealer Was declared by a competent Court to be invalid in law, the payment of tax already made was one made under a mistake within Section 72 of the Contract Act and so the Government to whom the payment had been made by mistake must in law repay it. In this respect, the High Court had, in exercise of its jurisdiction under Article 226 of the Constitution of India, power for the purpose of enforcement of fundamental rights and statutory rights to give consequential relief by ordering repayment of money realised by the Government without the authority of law. The Supreme Court also observed that the High Court had a discretion in this matter. Counsel for the respondents, on the other hand, drew my attention to the decision of the Supreme Court in the case of Suganmal v. State of Madhya Pradesh, ATR 1965 SC 1740 and he relied on the observation appearing at paragraph 14 where the Supreme Court observed that Rule 8 (a) of the Indore Industrial Tax Rules, 1927 did not provide that in case the appellate authority set aside the final assessment, the tax realised should he refunded to the assessee on his application within a specified period of time. The assessee had no right under the statutory law to the refund of the tax paid and that no duty was cast on the State to refund the amount it had realised which had been subsequently found to be not in accordance with law. The mere order of the appellate authority that the tax collected was not authorised by any law was not a decision to the effect that the State was to return the amounts to the assessee nor could it be taken to amount to a law making it incumbent on the State to refund the amount to the assessee and the assessee was not entitled to a Writ of Mandamus. But in the last mentioned case it appears that there was no similar provision like Section 109-A of the Calcutta Port Act, 1890.
12. In this case whether on the merit whether the petitioner is entitled to refund or whether the respondent has any defence to the claim for refund has not been gone into. The respondent has merely rejected the claim of the petitioner on the plea that the claim was lodged beyond the period of time. Having regard to the facts and circumstances of the case and in the view I have taken on the provisions of Section 109-A of the Act, in my opinion the appropriate order to make in this case would be to direct the respondent to consider the claim for the refund or remission of the petitioner ignoring the fact that the claim was lodged beyond the period of time. If after consideration of the matter the respondent conies to the conclusion that the rate was in excess of the rate mentioned in the Notification and the petitioner was entitled to a remission or refund and if there is no other claim against the petitioner or no other reason disentitling the petitioner to get the refund or remission, then to pass an order directing refund or remission to the petitioner or giving the petitioner such remission or refund in accordance with law and on the Notification which the petitioner, is entitled to. Let Writ in the nature of Mandamus issue accordingly. The Rule is made absolute to the extent indicated above. There will be no order as to costs.
13. There will be a stay of operation of this order for four weeks.