Ankit Bansal vs Board Of Trustees & Ors

Learned senior counsel for the petitioner submits that the respondent no. 1 demanded certain freight charges and other penal charges from the

proforma respondent nos. 11 to 13 due to the said proforma respondents not being able to take out their consignments from the premises of the port

authorities within the time stipulated in the contract. It is submitted that the said demand was contrary to the Circular dated April 21, 2020 issued by

the Ministry of Shipping, Government of India to all major Ports, which is annexed at page 83 to the present writ petition, which shows that there was

specific direction not to levy such charges on any port users during the lockdown period which was extended till May 03, 2020 and a further period of

30 days thereafter. Such circular has been patently violated in demanding the extra penal charges, as per the allegations of the petitioner.

Learned counsel appearing for the proforma respondent nos. 11 to 13 supports such contention and argues that no separate demand in writing is to be

made by the Port Trust for claiming the alleged amount since, as per the relevant Government Circulars, the goods would not be released unless such

charges are paid, for which the proforma respondent nos. 11 to 13 were compelled to take out their goods subject to payment of such charges, but

specifically indicating on the receipt that those were being withdrawn without prejudice to the rights and contentions of the said proforma respondents

and the petitioner.

Learned senior counsel for the respondent no. 1, the Board of Trustees, Port of Kolkata, submits at the outset that the petitioner has no locus standi to

maintain the present writ petition, since it was initially filed as a Public Interest Litigation, in the personal capacity of the petitioner and was later on

converted, with the leave of Court, to a regular writ petition under Article 226 of the Constitution of India. As such, in the absence of any resolution of

the concerned boards, granting the petitioner authority to represent them, at least from the end of the proforma respondent nos. 11 and 12, the present

writ petition cannot be maintainable at all. It is further submitted that the petitioner has not annexed any demand notice to the writ petition to

substantiate their claim that the Government Notification mentioned above was violated by the Kolkata Port Trust. It is further submitted that the

Kolkata Port Trust authorities are meticulously adhering to such Circulars and other Government Notifications.

Learned senior counsel for the respondent no. 1 further argues that since the proforma respondent nos. 11 to 13 have already withdrawn most of their

goods, subject to payment of the alleged amounts, the petitioner as well as the proforma respondent nos. 11 to 13 are bound by the principle of

acquiescence from raising such grievance for the first time in the present writ petition.

Learned senior counsel appearing for the petitioner, in reply, submits that the first objection raised is absolutely technical in nature and the petitioner, in

any event could have maintained this writ petition as sole proprietor of respondent no. 1. As regards representation of the respondent nos. 11 and 12, it

is submitted that those are technical defects, which ought to be permitted to be rectified suo motu by this court, as held by the Supreme Court in

several landmark judgments. Such contention is mirrored by the learned counsel of the proforma respondent nos. 11 to 13 as well. Learned counsel for

the proforma respondent nos. 11 to 13 further submits that in case of such demand, no written notice is to be sent by the Port authorities but the goods

were not being released without the payment and as such the said proforma respondents were constrained to withdraw the goods upon payment of the

charges under compulsion.

Learned senior counsel for the petitioner clarifies that indication was given in the receipts as regards the withdrawal and payments being without

prejudice to the rights and contentions of the proforma respondent nos. 11 to 13. Learned counsel for the petitioner further submits that in view of the

aforesaid circumstances, this Court ought to suo motu transpose the proforma respondent nos. 11 to 13 to the category of petitioners and proceed to

decide the writ petition on its merits.

Upon hearing submissions of the learned counsel, the submission of the respondent no. 1 as regards the locus standi of the petition, although might hold

good as far as proforma respondent nos. 11 to 12 are concerned who are respectively a company and a partnership firm, does not hold water as far as

proforma respondent no. 13 is concerned. Mere omission to indicate in the cause title that the petitioner is also filing the writ petition in the capacity of

the sole proprietor of the proforma respondent no. 13, cannot debar the writ petition from being pursued altogether. In any event, such defects are

technical in nature and, in particular in the writ jurisdiction, procedure cannot be made the handmaiden of justice.

As such, the proforma respondent nos. 11 to 13 are permitted to issue due authority to the petitioner to represent them as well. Subject to the

petitioner filing affidavit-of-competency within a week from date in the concerned section of this court, proforma respondent nos. 11 to 13 shall stand

transposed to the category of petitioners.

As regards the other questions raised on merit, detailed hearing as well as prima facie factual consideration is necessary and as such the parties would

be required to use affidavits. Accordingly, the respondent nos. 1 to 10 are directed to file their affidavit(s)-in-opposition to the writ petition also within

a week from date. Reply, if any, shall be filed by the petitioner within three days thereafter. It is made clear that only in the event of the petitioner

filing affidavits-of-competency regarding his representation of the proforma respondent nos. 11 to 12 as directed above within the specified period as

stipulated above, the concerned section of this court shall carry out the necessary consequential corrections in the cause title of the writ petition,

deleting the names of proforma respondent nos. 11 to 13 and inserting their names in the category of petitioners.

The matter shall next be enlisted on July 08, 2020.