AI Structured Summary
Not yet generated for this judgment
Judgment
The petitioner has challenged the action of the Kolkata Port Trust
(KoPT) authorities in levying charges in respect of occupation of an
immovable property and the ultimate auction of the property belonging
to the petitioner.
Learned Advocate for the petitioner has submitted that, the
petitioner as an importer had appointed the respondent no. 6 as its
agent. The respondent no. 6 as the agent of the petitioner had applied to the respondent no. 1 for the space for storage of coking coal at a yard
space. KoPT had permitted the petitioner to do so on the terms and
conditions, noted in the grant of the permission. The petitioner had paid
the rent, from time to time, fixed by KoPT. KoPT by a resolution bearing
no. 89 dated August 24, 2010, had introduced encroachment charges
for delayed lifting of goods beyond the period of 30 days. The petitioner
was issued a notice dated August 26/27, 2010. Various
correspondences had ensued between the parties. Ultimately, the
petitioner not being able to clear the goods, it was put on notice by KoPT
for auction sale. The petitioner had filed the instant writ petition. An
interim order dated March 11, 2011 was passed, allowing the petitioner
to lift the goods, by paying the entire amount claimed, subject to the
result of the writ petition. The petitioner did not pay the claimed
amount. The goods were ultimately sold in auction in 2014.
Learned Advocate for the petitioner has submitted that, KoPT is not
entitled to charge at the rates it had levied on the petitioner. The charges
are not in accordance with the rates fixed by Tariff Authority for Major
Ports (TAMP). In absence of the rate being fixed by TAMP, KoPT has no
jurisdiction to levy charges arbitrarily. The charges levied upon the
petitioner being arbitrary, it has to be set aside. He has referred to
Section 2(v) of the Major Port Trust Act, 1963 as well as Sections 49(1)(c), 49(3), 59(1), 123(i) and Section 124 thereof and submitted that,
the board of trustees cannot usurp the jurisdiction of TAMP.
Alternatively, assuming that the KoPT authorities are entitled to levy the
charges as done in the present case, then, the charges has to be
conscionable. KoPT cannot misutilize its superior bargaining position to
impose any charges upon the petitioner. Even in the field of contractual
obligations KoPT authorities are required to act reasonably and fairly.
The Court should not permit an unconscionable contract. Moreover, if
the transactions between the parties are purely commercial and
contractual as contended by the KoPT authorities then, the KoPT has to
substantiate that, the petitioner had acknowledged the revised rates. An
unilateral imposition of rent by KoPT is not binding in the contractual
field. Adverting to the auction sale, learned Advocate for the petitioner
has submitted that, notice of such sale was not given to the petitioner.
The properties belonging to the petitioner were sold at an undervalue
without disclosing its valuation. The auction sale, therefore, stands
vitiated. The auction was not conducted in accordance with Section 61
of the Major Port Trust Act, 1963. In such circumstances, the reliefs
sought for by the petitioner should be granted.
Learned Senior Advocate appearing for the KoPT authorities has
submitted that, the parties had entered into a non-statutory contract. A writ petition on the basis of a non-statutory contract is not
maintainable. He has referred to the various provisions of the Major Port
Trust Act, 1963 and submitted that, the board of trustees has the
implied powers to carry on business in the best interest of the port. In
the present case TAMP rates were not governing in the field at the
material point of time. The board was, therefore, empowered to decide on
the rates. It had done so. The petitioner is obliged to adhere to such
rates. The rates fixed by the board are binding upon the petitioner. The
petitioner, having utilized the facility, cannot now be allowed to turn
around and claim that, the rates as fixed by the board are higher or not
payable. He has submitted that, Section 49 of the Major Port Trust Act,
1963 does not apply to a licence and that, Sub-section (3) thereof allows
a higher rate to be fixed. The rates charged by the KoPT have not been
substantiated to be lower than that of the TAMP rates assuming that,
the TAMP rates are governing the field. The petitioner having taken
advantage of the situation, and having enjoyed the benefits flowing
therefrom, is estopped from challenging the same. He has drawn the
attention of the Court to the fact that, KoPT had raised demands on the
petitioner. The petitioner had ignored the same. The sale was conducted
after few advertisements. The writ petition ought to be dismissed.
I have heard the rival contentions of the parties and the materials
made available on record.
The petitioner had imported coking coal in India. Its agent being
the respondent no. 6, had applied on July 17, 2010 for 12,000 square
meters for storage with the KoPT authorities. The petitioner was granted
a licence with effect from July 23, 2010 for a month, on ad hoc basis, for
12,000 square meters of space. The petitioner, through its agent being
the respondent no. 6, had applied on August 23, 2010, for renewal of
licence for another month. KoPT authorities had undertaken a joint
measurement in presence of the representatives of the respondent no. 6,
acting as the agent of the petitioner, and it was found that, the
petitioner, was in occupation of 15,000 square meters on monthly basis
up to September 22, 2010. The petitioner, through the respondent no. 6,
made another application on September 29, 2010 for further renewal,
for a period of one month. KoPT authorities had, thereafter, renewed the
licence for 12,500 square meters till October 22, 2010. On August 23,
2010, the petitioner, through the respondent no. 6, had applied for
additional storage space. On such application 4,500 square meters of
space was granted on adhoc basis for one month. On measurement the
petitioner was found to be in occupation of 6,500 square meters.
Accordingly, the licence was granted for 6,500 square meters. Again on the application made on behalf of the petitioner, through the respondent
no. 6, the licence for 6,500 square meters were renewed by KoPT
authorities. The petitioner, therefore, came about to occupy two storage
spaces of KoPT.
The board of trustees for Kolkata Port had by a resolution dated
August 24, 2010 resolved to levy compensation of space allotted to the
licensees. The petitioner was well-aware of the same. It did not challenge
the same at the relevant point of time. The petitioner had failed to vacate
its two occupations within the agreed period. In such circumstances, in
terms of the resolution dated August 24, 2010, the petitioner was called
upon to pay the outstanding in terms of such resolution. Various
demands were raised. The petitioner did not pay the same. The
petitioner was considered to be in wrongful and unauthorized
occupation of the two spaces after October 22, 2010.
In the affidavit-in-opposition, the KoPT authorities have taken a
stand that, the petitioner stands to benefit by reason of the application
of the rates formulated by the board resolution dated August 24, 2010
rather than the TAMP rates as the board rates are substantially lower.
This fact has not been substantiated to be incorrect by the petitioner.
The transactions had between the parties as narrated above, are
commercial in nature and purely on contractual basis. The contracts
between the parties are non-statutory. A Court, far less a Writ Court, is
not required to rewrite the contract between the parties. The petitioner
has not substantiated that TAMP rates apply. It cannot be allowed to
contend that, the KoPT authorities cannot apply any rates as TAMP
rates are not applicable. The provisions of Major Port Trust Act, 1963
cannot be construed to mean that, where TAMP rates do not apply, no
rates can be realized by KoPT despite a party utilizing a space of KoPT
for commercial benefit. The petitioner did not contest the imposition of
the rates and charges contemporaneously. It did not contest the board
resolution also. It would not be proper for the Wirt Court to enter into
such contractual arena between the parties. None of the provisions of
the Major Port Trust Act, 1963 cited on behalf of the parties prohibit the
Port Trust authorities in entering into a contract and belonging with the
immovable properties in terms of such contract. In the present case,
although a land was used, essentially, the same was permitted to be
used on a temporary basis for a particular purpose. Essentially, the
spaces were allotted to be utilized for the purpose of clearance of the
goods.
So far as the allegation of valuation and sale at a lower value is
concerned, I find that, the KoPT had issued various demand letters to
the petitioner. The petitioner did not adhere thereto. The KoPT
authorities were, therefore, obliged to undertake the process of sale
through public auction in order to recover its claim and to obtain the
space. The fact that the sale was at an under value has not been
conclusively established. The sale took place by public auction. The
petitioner has not produced any material to suggest that, a higher bidder
was wrongfully denied the purchase of the material. That not being the
case, the allegation of sale at an under value is without any substance.
In such circumstances, I find no merit in the present writ petition.
W.P. No. 267 of 2011 is dismissed. No order as to costs.