A.S.K. Rathnaswamy Nadar and Co., Madras vs Trustees of the port Trust, Madras

K. A. Swami, C.J.—This appeal is preferred against the order dated 24-12-1993 passed by the learned single Judge, dismissing W.P. No.

2397 of 1995 (sic) in which the validity of Circular No. 9/85, dated 6-2-1985 (sic) issued by respondent was challenged.

Learned single Judge has held that as the respondent had not undertaken to run the services to clear the goods, it was not responsible to take

over the charge or agreed to handle the goods. Learned single Judge has stated in categorical terms, thus: --

No material was produced to show that the Port Trust, in the cases before me, have undertaken to take over the charge or agreed to handle the

goods and provide services of this nature for delivery on landing for the discharge of the cargo,

Circular No. 9/85, dated 6-12-1985 (sic) is as follows:--

Sub: Cargo -- Imports -- Landing of Logs Ex. Andaman Vessels -- Declaration of free days -- Amendment -- regarding-

Further to this Office Circular Letters of even No. dated 31-7-1984 and 24-9-1984 it is informed that free days in respect of vessels bringing in

logs of Timber will be declared in three stages as tinder :--

First general landing date will be fixed on landing about 33-1/3 (One third) of the manifested quantity.

Second general landing date will be fixed on landing subsequent to 33-1/3 (i.e., on landing of 2/3) of the manifested quantity.

Third general landing dale will be fixed on completion of remaining 33-1/3 (i.e. on completion of landing) of the manifested quantity.

The Board has approved the implementation of the above procedure with effect from 29-1-1985.

Traffic Manager,

Madras Port Trust.

The aforestated Circular is issued in furtherance of the earlier Circulars dated 31-7-1984 and 24-9-1984 and the concerned persons are informed

that the vessels bringing in logs of timbers will be declared in three stages. First General landing date will be fixed on landing about 33-1/3 (one

third) of the manifested quantity. Second general landing date will be fixed on landing subsequent to 33-1/3 (on landing of 2/3) of the manifested

quantity. Third general landing date will be fixed on completion of remaining 33-1/3 (i.e., on completion of landing) of the manifested quantity. As

per the circular the cargos are to be cleared according to the dates fixed by the Port Trust. In the event, it is not cleared, the provisions of Section

42 of the Major Port Trusts Act, 1963 (hereinafter referred to as ''the Act'') will come into play and the Board will be entitled to deal with the

person and cargo as per the provisions contained in the said section.

However, it is contended before us that u/s 42 of the Act, it is the duty of the Board to undertake the following services :

(1) A Board shall have power to undertake the following services :--

(a) landing, shipping or transhipping passengers and goods between vessels in the port and the wharves, piers, quays or docks belonging to or in

the possession of the Board.

(b) receiving, removing, shifting, transporting, storing or delivering goods brought within the Board''s premises.

(c) carrying passengers by rail or by other means within the limits of the port or port approaches, subject to such restrictions and conditions as the

Central Government may think fit to impose.

(d) receiving and delivering, transporting and booking and despatching goods originating in the vessels in the port and intended for carnage by the

neighbouring railways, or vice versa, as a railway administration under the Indian Railways Act, 1890, and

(e) piloting, hauling, mooring, remooring, hooking, of measuring of vessels or any other service in respect of vessels.

As the Board has not undertaken to perform the aforesaid services, it is not justified in issuing the Circular for fixing a date for clearing the goods in

different stages.

It is not possible to read Section 42 of the Act, as contended by the learned counsel for the appellant. No doubt Section 42 of the Act gives

power to the Board to undertake the services mentioned in Clause (a) to (e) of sub-section(l). But, that does not mean that the Board alone must

undertake to perform those services. It has power to have those services performed by other agency also. Sub-section (3) of Section 42 of the

Act specifically says that notwithstanding anything contained in the Section, the Board may, with the previous sanction of the Central Government,

authorise any person to perform any of the services mentioned in sub-section (1) on such terms and conditions as may be agreed upon. It is in

exercise of this power only, the services required to be rendered at the port are entrusted to other agencies. Not only that, even after the

entrustment of such service to other agencies, it is the Board alone which has to fix the charges to be collected by such agencies. Sub-section (4)

of Section 42 of the Act clearly states that no person authorised under sub-section (3) shall charge or recover for such service any sum in excess

of the amount/leviable according to the scale framed u/s 48 of Section 49 or Section 50. Sub-section (5) says that any such person shall, if so

required by the owner, perform in respect of goods any of the said services and for that purpose take charge of the goods and give a receipt in

such form as the Board may specify. As per sub-section (6). the responsibility of any such person for the loss, destruction or deterioration of

goods of which he has taken charge shall, subject to the other provisions of this Act, be that of a bailee under Sections 151, 152 and 161 of the

Indian Contract Act, 1872.

That being so, it is not possible to hold that the Circular, which enables a provision for fixing a date for clearing the goods, is in any way contrary

to the provisions contained in Section 42 of the Act. Hence, we see no reason to admit the writ appeal. Accordingly, it is rejected.

Appeal dismissed.