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TMI Blog2008 (2) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Jayesh Trivedi, Company Secretary, G.K.V. Murthy; Bijai Sundar for H. Nagesh, Shevgoor Law Associates, Advocates and R. Ravikrishnan, Branch Manger, for the Petitioner. S/Shri G.V. Shantharaju, Sr. Advocate and Shri Arvind Kumar, ASG, for the Respondent. [Order]. Common questions of fact and law arise in all these petitions. As such, they are heard together and disposed of by this common order. 2. In W.P. No. 46244/04, the first petitioner claims to be a public limited company engaged in the business of carrying Cargo from various ports in the country including New Mangalore Port. The second petitioner is a registered steamship agent who acts on behalf of the first petitioner before the first respondent in matters relating to various ships and oil tankers operated in New Mangalore Port. In W.P. No. 27521/04 and 27522/04, the petitioner claims to be a company involved in the business as a steamer agent for various shipping lines and ship operators in handling vessels which carry cargo from different ports in the world. 3. The first respondent is constituted under the Major Port Trusts Act, 1963 (MPT Act for short) to administer New Mangalore Port Trust, which re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-compliance of 56 of the MPT Act in view of non-issue of notice prior to imposing the short levy. On that short ground, the petitions were allowed by setting aside the bills and permitting the second respondent to take appropriate proceedings in accordance with lam and in accordance with the provisions of Section 56 of the MPT Act. Thereafter the notices as contemplated under Section 56 of the MPT Act was issued and contentions of the petitioners in reply were rejected and the demand has been reaffirmed. The petitioners are therefore before the Court. In addition to the earlier contention that RGT should apply to all levies, the petitioners alternatively contend regarding a portion of the demand being time-barred in view of the proviso contained to Section 56 which prohibits issue of notice after two years. 5. The respondent to justify their action stating that RGT is available only in respect of Port dues, while other service charts to be levied in respect of pilotage and berth hire charges is on GRT. It is contended that port dues does not encompass all charges but it relates to only the fee for the vessels to enter the port and is separately indicated in Section 49B and 50A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia - AIR 1977 SC 597) = 1983 (13) E.L.T. 1566 (S.C.) was relied to contend that while interpreting the meaning of words in taxing statute, the popular meaning of a particular word as understood by people in that trade is to be accepted. In the instant case, I am of the view that this course need not be adapted since Chapter VI of the MPT Act contains regarding the different levies provided, wherein Section 49A prescribes regarding pilotage etc. as a separate class of tariff, while Section 49B, 50A and 50B provide only regarding port-dues as a separate class of tariff being for the vessels entering the port. Further Section 49B(2) provides regarding taking effect of an order increasing or altering the fees for pilotage and certain other services or port dues. The word Or used between pilotage and certain other dues and port dues would clearly indicate that port dues does not include all other charges but it is a class of levy by itself. Therefore, the use of the expression port dues in the order dated 15-3-2000 will relate only to port dues as a category of levy and would not include pilotage charges and berth hire charges. This would have been so only it was specifically ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due consultation has come to its conclusion by exercising its statutory power. No arbitrariness or perversity is indicated so as to call for interference in the limited scope of judicial review under Article 226 of the Constitution of India. That being so, neither the order dated 15-3-2000 nor the clarificatory order dated 5-10-2002 call for interference. 10. Therefore, the next question that would arise for consideration is with regard to the nature of the proceedings held by the first respondent-NMPT prior to and pursuant to the issue of notice as contemplated under Section 56 of the MPT Act and in terms of the leave granted by this Court in W.P. Nos. 49676/03 and 49513-556/03. In this regard, the contention with regard to certain short levied bills being time barred in view of the proviso to Section 56 contained in the MPT Act is also revised. Before considering the question with regard to limitation, certain contentions raised by Sri Bijai Sunder, learned counsel for one of the petitioners is to be noticed. It is the contention of the learned counsel that the show cause notice issued itself is not sustainable for the reason that it has been issued by the Financial Adviser an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this regard, it is necessary to notice Section 56 of the MPT Act which reads as hereunder : 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 charges 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 year,- (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. Sub-section (1) of Sec. 56 of the MPT Act provides with regard to issue of notice to the person who is liable to pay such charge which was short levied. Further the proviso to the said section states that no suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it is the duty of the Court in such a case to put the parties in the same position, they would have been but for the interim orders of the Court. Any other view would result in the act or order of the Court prejudicing the party for no fault of his and would also mean rewarding the writ petitioner in spite of his failure. On noticing the said decision, I am of the view that the same would not render any assistance to the first respondent since what is relevant is, in such a circumstance, it was for the Court in the earlier Writ Petition to grant such relaxation of the limitation to the respondent and no benefit can be granted in this proceedings. But, as already noticed from the extracted portion of the order, this Court was very specific in stating that it would be open to the respondents to issue such notices in accordance with law and in compliance with Sections 56 of the MPT Act and no other right was reserved. In any event, in the Writ Petition the petitioners had ultimately succeeded in having the bills which were issued contrary to the provisions of Section 56 of the MPT Act quashed. In fact, on this question, the decision relied on by Sri G.K.V. Murthy, learned counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents were very much aware of the position of law that such notice would have to be issued within a period of two years, when the said leave was granted by this Court to be complied in terms of Section 56 of the MPT Act. Therefore, so far as the bills which do not fall within the period of two years as contemplated under Section 56 of the MPT Act as on the date of issue of show cause notice, the amount thereunder would not be recoverable and to that extent, the first respondent cannot claim the same. As already noticed above, since this Court would not to be in a position to refer to each of the bills, this exercise would have to be done by the first respondent and as such in so far as the demand made, the first respondent will have to rework excluding such of those bills claiming short levy and included in the show cause notice which are beyond two years. 14. Though the petitioners also contend that they would have to bear the burden at this stage since it would be difficult to recover from the vessel owners, no relief could be granted to the petitioners in so far as that aspect as against the first respondent in this petition. As already noticed, the tariff is fixed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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