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Calcutta Shipping Bureau and ors. Vs. Calcutta Port Trust and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberMatter No. 108 of 1982
Judge
Reported inAIR1986Cal288
ActsConstitution of India - Article 226; ;Major Port Trusts Act, 1963 - Sections 21 and 56
AppellantCalcutta Shipping Bureau and ors.
RespondentCalcutta Port Trust and ors.
Advocates:H.K. Mitter, J.
DispositionApplication allowed
Cases ReferredSyed Yakoob v. K. S. Radhakrishnan
Excerpt:
- .....in this writ petition the petitioners challenge two separate demand notices issued by the calcutta port trust authority.2. before adverting to the rival contentions, a brief reference to the facts, is needed for proper appreciation of the contentions raised in the petition. the petitioner no. 1 acts as a clearing and forwarding agent at the port of calcutta in pursuance of a licence granted by the commissioners for the port of calcutta. in the usual course of business, the petitioner no. 1, for the purpose of clearance of 2073 bales of viscose stapple fibres imported by one general industrial society ltd, per vessel s. s. triton' at the port of calcutta, submitted the invoices raised by the foreign seller, bills of lading and certificates of origin. along with the aforesaid documents the.....
Judgment:
ORDER

Umesh Chandra Banerjee, J.

1. In this writ petition the petitioners challenge two separate demand notices issued by the Calcutta Port Trust Authority.

2. Before adverting to the rival contentions, a brief reference to the facts, is needed for proper appreciation of the contentions raised in the petition. The petitioner No. 1 acts as a Clearing and Forwarding Agent at the Port of Calcutta in pursuance of a licence granted by the Commissioners for the Port of Calcutta. In the usual course of business, the petitioner No. 1, for the purpose of clearance of 2073 Bales of Viscose Stapple Fibres imported by one General Industrial Society Ltd, per vessel S. S. Triton' at the Port of Calcutta, submitted the invoices raised by the Foreign Seller, Bills of Lading and Certificates of Origin. Along with the aforesaid documents the petitioner No. 1 also filed the Bills of Entry in the prescribed Form with the appropriate department of the Customs for obtaining assessments of customs duty. The Customs Authorities assessed the quantum of duty payable and the petitioner No. 1 paid the same. Subsequently after obtaining the documents from the Customs Authorities the same were submitted along with the import delivery challans for payment of landing and delivery charges. Jetty challans were duly presented to the Calculator for calculation. The contents of the jetty challans in the usual course would have to be scrutinised by the Calculator of the Port Trust Authority upon consideration of the Bills of Lading, Bills of Entry and the Jetty Challans. In the normal course of events, if any discrepancy occurs, the Calculator is to point the same out and to reassess the port charges. In the facts of this case the petitioners on the basis of the documents referred to above calculated the same at Rs. 37,403.83 p. being the amount of port charges on account of the aforesaid 2073 Bales and the Calculator confirmed the accuracy and correctness of the details of the aforesaid consignments and upon such confirmation the petitioner No. 1 duly paid the port charges. Incidentally the Cash Department also has had the occasion to check the correctness of the charges to be payable by the Clearing and Forwarding Agents and on such payment, in accordance with the usual procedure, all the documents including the cash receipt were produced before the Head Clerk who thereupon issued a shed delivery order as also the gate pass to enable the petitioner No. 1 to obtain delivery of the aforesaid 2073 Bales of Viscose Stapple Fibres. The clearance was completed by about 12th Feb. 1980.

3. Subsequently, after a lapse of about two years two letters of demand were raised by the respondent, Port Trust Authority claiming thereby a total sum of Rs. l,73,886.55p. Along with the said letter of demand the respondent Port Trust Authority also made it known that the measurement in respect of the two Bills of Entry were respectively 1637 and 1651 cubic metre in place and stead of 633.648 and 639.174 cubic metre as was submitted by the petitioner No. 1. It is this demand notice which is under challenge in this writ petition.

4. From the records it appears that a rule nisi was issued by this Court but when a prayer for interim order was made, on the basis of the submissions made by the Port Trust Authority that the notice of demand is merely a show cause notice and a detailed hearing is still now awaked, this Court granted leave to the Port Trust Authority to proceed with the hearing of the matter in accordance with law. Subsequently, however, a hearing was given by the F.A. & C.A.O. of the Port Trust Authority and the demand was confirmed by the said F.A. & C.A.O. of the Port.

5. At the hearing Mr. B. C. Dutt appearing for the Port Trust Authority strenuously contended that since there is no challenge to the order of the F.A. & C. A.O. the writ petition ought to fail. In my view however interest of justice does not warrant a further writ petition. A further proceeding would be a futile exercise when in fact if the demand notices are confirmed or set aside the parties would get full relief in this proceeding itself. In any event, detailed submissions have been made in regard to the merits of the matter under consideration as would be presently dealt with and it would not be a proper exercise of judicial power to put the parties to further litigation. Though it is undoubtedly true that there are certain instances in which the law Court would be justified in directing a patty to take steps in regard thereto by reason of the altered circumstances. But in the facts of the case under consideration, in my view, full adjudication of the disputes in the matter is possible and as such I am unable to accept the contention of Mr. Dutt in that regard.

6. Mr. H. K. Mitter appearing in support of the writ petitioners submitted that the notice of demand is ex facie bad and illegal inasmuch as the same was issued by the Financial Advisor and Chief Accounts Officer whereas the proper authority in terms of Section 56 of the Major Port Trusts Act, 1963 is and ought to be the Board. In this context Section 56 of the Major Port Trusts Act, 1963 is set out below for proper appreciation :

'56. Notice of payment of charges short-levied or erroneously refunded. -- (1) When any Board is satisfied that any charge leviable under this Chapter has been short-levied or erroneously refunded, it may issue a notice to the person who is liable to pay such charge or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice :

Provided that no such notice shall be issued after the expiry of two years --

(a) When the charge is short-levied, from the date of the payment of the charge;

(b) where a charge has been erroneously refunded, from the date of the refund;

(2) The Board may, after considering the representation, if any, made by the person to whom notice is issued under Sub-section (1), determine the amount due from such person and thereupon such person shall pay the amount so determined.'

The definition section has also clarified the meaning of Board under Section 2(b). The Board in relation to a Port under Section 2(b) means the Board of Trustees constituted under the Act for the particular Port. Section 3 of the Act of 1963 provides that the Central Government shall cause to be constituted in respect of any Major Port the Board of Trustees to be called the Board of Trustees of that Port which shall consist of the Trustees viz. :

(a) Chairman to be appointed by the Central Government;

(b) A Deputy Chairman if the Central Government deems fit to appoint one;

(c) not more than ten persons to be appointed by the Central Government from amongst persons who are in its opinion capable of representing the labour employed in the Port, Mercantile Marina Department, Customs Department, the Government State in which the Port is situated, the Defence Service, the Indian Railways and such other interest as in the opinion of the Central Government ought to be represented on the Board.

7. Section 3 further provides, that before appointing any person under the head labour employed in Port, the Central Government shall obtain the opinion of the Trade Unions, if any, comprised of persons employed in the Port and registered under the Indian Trade Unions Act, 1926 and the number of persons so appointed shall not be less than two.

8. Section 5 of the Act of 1963 provides that every Board constituted under the Act shall be a body corporate having perpetual succession and a common seal with power subject to the provisions of the Act to acquire, hold or dispose of property and may by the name by which it is constituted, sue or be sued.

9. Section 14 of the Act of 1963 provides that if the Chairman or the Deputy Chairman is by infirmity or otherwise rendered incapable of carrying out his duties or is absent on leave or otherwise or sent on deputation outside India the Central Government may appoint another person to act in his place during his absence. Section 17 lays down that a Board may from time to time constitute from amongst the trustees one or more committees, each consisting of such number as the Board may consider necessary, for the purpose of discharging such of its function as may be delegated to such committee or committees by the Board.

10. Section 21 is also set out hereinbelow as the same is relevant for the present purpose :

'21. Delegation of powers. -- A Board may with the approval of the Central Government, specify --

(a) the powers and duties conferred or imposed upon the Board by or under this 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 this 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;Provided that any powers and duties conferred or imposed upon the Deputy Chairman or any officer of the Board under Clause (b) shall be exercised and performed by him subject to the supervision and control of the Chairman.'

11. Mr. Mitter relying upon the aforesaid provisions strenuously contended that being a creature of the statute the respondent Port Trust Authority cannot function as per its own ipse dixit but would have to discharge its functions in accordance with the requirements of the Statute. It was contended that the Financial Advisor and Chief Accounts Officer cannot assume any jurisdiction for and on behalf of the Board entitling him to issue a notice under Section 56 of the Act of 1963. The only person authorised to act in terms of Section 21 of the Major Port Trusts Act is the Chairman of the Port Trust Authority, upon due compliance of Section 21 of the Major Port Trusts Act, 1963.

12. Mr. Dutt, however, contended that in the matter under consideration the Chairman has subsequently ratified the demand raised by the Financial Advisor and Chief Accounts Officer and as such there is due compliance of the Major Port Trusts Act, 1963.

13. Statutory provisions are engrafted in the statute book for their strict compliance. The Act of 1963 has not in any way authorised the Financial Advisor and Chief Accounts Officer to take steps under Section 56 of the Act. The power is vested in the Board and to none else. The language of Section 56 viz. 'when any Board is satisfied........' is of some significance and the satisfaction of the Board is of prime consideration and the statute requires such satisfaction. The satisfaction of the Financial Advisor and Chief Accounts Officer cannot, in my view, considering the language used in Section 56 be substituted for the satisfaction of the Board. Mere ratification at a subsequent stage by the Chairman, a fact which has also been disputed, cannot be said to cure the wrong assumption of jurisdiction by one of the Senior Executives of the Port Trust Authority. Statutory requirements are to be observed strictly. More so whenever exercise of power would involve financial implication or penal consequences. In the absence of a specific power under the statute there cannot be any sub-delegation of power. The power or authority to issue notice of demand of charges short-levied or erroneously refunded is a judicial or a quasi-judicial function and the Board has no power to delegate it or subsequently to ratify a decision by a person to whom the power had been improperly delegated and the law Court would be within its power in its discretion to make a declaration relating to the validity of the decision of a statutory Board and may grant the party a declaration that the assumption of jurisdiction was wrongful and the demand a nullity.

14. In this context the observations of the Court of Appeal in Barnard v. National Dock Labour Board reported in (1953) 1 All ER 1113 : (1953) 2 QBD 18, seem to be very apposite. Singleton L. J. observed :

'It is, to my mind, essential to notice that by the order of 1947 the local board is entrusted with the disciplinary powers set out in Clause 16(2). Those powers are of a judicial, or certainly of a quasi-judicial nature. The constitution of the local board is laid down in Clause 5(2). It is to consist of equal numbers of persons representing the dock workers and employees, and by Clause 5(6) provision is made for payment to them of such salaries, fees and allowances as the National Board may determine. It is no answer to say that there would have been too much work for the local board to do, nor do 1 think any such case is made out on the evidence. In view of the provisions of the order as a whole, 1 fail to see that the local board had any power to delegate their disciplinary duties under Clause 16 and, I do not think that the authorities referred to in the judgment of Mcnair. J. i.e. Huth v. Clarke (1890) 25 QBD 391 and Local Government Board v. Arlidge 1915 AC 120, support the submission made on behalf of the defendants that the local board had power to delegate the duties given by Clause 16(2). It follows that the port manager had no right to suspend the men or to issue suspension notices, there being no order of the local board.

It is not an order of the local board; it is a notice issued by the port manager. I cannot regard it as other than a nullity.'

15. Denning L.J. in the same decision observed :

'I am sure in the vast majority of cases the Courts will not seek to interfere with the decisions of statutory tribunals -- but I do not doubt that there is power to do so, not only by certiorari, but also by way of declaration. I know of no limit to the power of the Court to grant a declaration except such limit as it may in its discretion impose on itself, and the Court should not, I think, tie its hands in this matter of statutory tribunals. It is axiomatic that when a statutory tribunal sits to administer justice, it must act in accordance with the law. Parliament clearly so intended. If the tribunal does not observe the law, what is to be done? The remedy by certiorari is hedged round by limitations and may not be available. Why, then, should not the Court intervene by declaration and injunction? If it cannot so intervene, it would mean that the tribunal could disregard the law.'

16. In that view of the matter, I am unable to accept the contention of Mr. Dutt that subsequent ratification has cured the defect, in the matter of issuance of the notice of demand. There roust be a proper application of mind and that application of mind ought to be the mind of the. Board and not of the Executive Officer of the Port Trust Authority.

17. Mr. Mitter next submitted that in any event that the order consequent upon the hearing as noted above, suffers from perversity and nobody could come to such a finding in the facts and circumstances of this case. While Mr. Dutt contended that the facts warranted the issuance of the notice of demand.

18. As to the power of the writ Court in deciding a question of fact said to have been decided by the inferior Tribunal, it is now well settled and I would deal with it presently. But before doing so certain factual aspects ought to be noted at this juncture. All necessary particulars were furnished by the writ petitioners to the Port Trust Authority. Detailed scrutiny was effected and on such scrutiny a total sum of Rs. 37,403.83 p. became due and payable and the same was duly paid. The documents passed through appropriate authority who is in-charge of scrutiny and assessment. It is not for a minute suggested that there is no power of further scrutiny or no notice of demand can even be sent to the party concerned in the event of a subsequent discovery of an error, but there must always be in such an event some cogent evidence in order to establish the escapement either by a deliberate omission or on an erroneous belief. The hearing said to have been given by the Financial Advisor and Chief Accounts Officer and the subsequent confirmation of the demand as is apparent from the order of confirmation and also reading the affidavit in opposition filed by the Port Trust Authority that the original bale numbers were reconstructed and the average number of bale as shown in the packing list total measurement was found. The conclusion arrived at in regard to the reconstruction of bales cannot, in my view, be supported. There is no evidence whatsoever in order to come to the aforesaid conclusion. Reliance was placed on the packing list which was also produced before the Court at the time of hearing. In the normal course of events, the packing list is not kept with the Port Authorities. It was made available to the authority at the time of hearing in terms of the order of the Court as noted above and as such it can safely be said that the packing list could not have formed the basis in so far as the issuance of the notice of demand is concerned. On the basis of the aforesaid Mr. Mitter contended that the finding of the Financial Advisor and Chief Accounts Officer is perverse.

19. The writ Court's jurisdiction to intervene in the matter under consideration has been strongly disputed by Mr. Dutt.

20. The Supreme Court in the case of Syed Yakoob v. K. S. Radhakrishnan reported in : [1964]5SCR64 observed that a writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals. A writ can also be issued where in exercise of jurisdiction conferred on it the Court or Tribunal gives decision illegally or improperly. If a finding of fact is based on no evidence or if the Tribunal had admitted inadmissible evidence which has influenced the finding that would be regarded as an error of law which can be corrected by a writ of certiorari.

21. In the view, I have taken that the F. A. & C. A.O. has had no evidence whatsoever, in coming to the conclusion that the bales were reconstructed, as such the issuance of the demand notices and subsequent confirmation of the same was effected on no evidence. In the premises an error of law has crept in capable of being rectified by the Writ Court.

22. In that view of the matter, this application succeeds. The Rule is made absolute. There will however be no order as to costs.


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