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TMI Blog2019 (11) TMI 973X X X X Extracts X X X X X X X X Extracts X X X X ..... n would be in favour of the first and second respondents. The notification dated 4th November, 1993 had specified rent/usage charges for open space, covered space, containers, office accommodation, etc., which charges were payable dependent upon the space and the length of time used for storage. Note 1 to the notification stated that a person wanting to use the rental space was required to make an application for storage of goods to the Traffic Manager. It was also specified that any unauthorised occupation of rented space shall make the person liable to pay double the rent as penalty. Note 1 did not specify when and in what circumstances occupation of the rented space would be treated as unauthorised occupation. Note 2 had specified that storage charges would be paid in advance and penal interest @ 18% would be payable on the amount due and not paid from the date when the amount had become due till the date of actual payment. Note 4 had specified that the space cannot be allotted without permission of the Traffic Manager of the Port. Note 5 had stipulated that the space allotted would be vacated on notice from the Traffic Manager or any other officer on his behalf, failing whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity and transparency in the use of storage facilities at the Kandla Port. The circular though issued on 31st August, 1998 was made effective and applicable from 1st October, 1998. Therefore, the parties were given time to take steps to avoid the usage of the storage facility from being declared as unauthorised. The impugned circular specifically recorded that there was congestion at the Port which had necessitated issuance of the circular stipulating that storage of goods beyond the period of sixty days would be treated as unauthorised occupation. The said circular ensured uniformity and equal treatment without discretion as upper time-limit of sixty days was prescribed for storage of goods failing which penalty was payable. Period of sixty days is sufficient and long and cannot be termed as unreasonable and violating Article 14 of the Constitution. Appeal dismissed - decided against appellant. - Civil Appeal No. 5277 of 2010 - - - Dated:- 17-9-2019 - Indu Malhotra and Sanjiv Khanna, JJ. Shri Nikhil Goel, Naveen Goel, Piyo Harald and Ms. Sheela Goel, Advocates, for the Appellant. Shri Pravin H. Parekh, Senior Advocate, D.P. Mohanty, Abhiram Naik, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... How Charged Ground Floor (Rs.) First Floor (Rs.) Covered space of 10 sq. mtrs. or part thereof per month or part thereof for first 3 months. 150-00 130-00 Beyond 3 months 225-00 195-00 (C) For the containers stored in the storage (Exports Imports) How Charged Empty (US Cents.) Loaded (US Cents.) Per Teu per day or part thereof First 7 days Free Free Next 7 days to 15 days 45 90 16 to 30 days 90 150 31 to 90 days 115 190 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , for short), a body corporate having perpetual succession and a common seal, consisting of Chairman and members with stipulations as to their term of office, conditions of service, etc. contained under Sections 47B to 47H of the Port Trusts Act. In terms of the amended Section 49 of the Port Trusts Act, the Tariff Authority was empowered to fix different scales and conditions for different classes of goods and vessels and for use of any land, building, place, etc. belonging to or in possession or occupation of the Board. 5. The amended provisions came into force with effect from 9th January, 1997. The Tariff Authority, however, had notified the new scale of rates for the Kandla Port vide notification dated 22nd June, 2001 which was applicable retrospectively and with effect from 29th January, 2001. The appellant and the first respondent, viz. Board of Trustees of Kandla Port Trust, are ad idem that the appellant and others who had used storage facility at the Kandla Port were liable to pay the rates stipulated in the Notification dated 4th November, 1993 till the new tariff fixed by the Tariff Authority was made applicable with effect from 29th January, 2001. 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayable. 8. Aggrieved and challenging the circular dated 31st August, 1998, the appellant had approached the High Court of Gujarat by filing Special Civil Application No. 12954 of 2000 with the prayer that the first respondent should refund the amount collected as penalty rent in terms of the impugned circular. The Civil Application was dismissed by the Single Judge vide judgment dated 14th June, 2007 and the appellant also did not succeed before the Division Bench which had dismissed the Letters Patent Appeal vide impugned judgment dated 15th July, 2008. 9. The contentions raised by the appellant are that after the amendment vide Act 15 of 1997, applicable with effect from 9th January, 1997, in terms of Section 47A read with Sections 48 and 49 of the Port Trusts Act, only the Tariff Authority could have fixed the tariff/rent and the Traffic Manager could not have directly or indirectly fixed the said tariff, which the latter did by way of issuance of the impugned circular dated 31st August, 1998. Secondly, the circular issued by the Traffic Manager in garb of regulating traffic had the effect of interfering with the scales of rates prescribed vide Notification dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge of which on port premises is likely to obstruct traffic or cause congestion. The apportionment of Quay space to be occupied by each vessel shall similarly be determined by the Traffic Manager. This power under Regulation 64 was regarding goods that were likely to cause traffic congestion and not regarding the rate of storage for a particular period. Therefore, the impugned circular was beyond the powers available and entrusted to the Traffic Manager under Regulation 64. The Traffic Manager, in this manner, had illegally extracted huge amount of over ₹ 52 lakhs for over-stay of cargo without any justification and reason. 10. We have already quoted the scales fixed by the notification dated 4th November, 1993 as well as the Notes in the notification. This notification was not under challenge in the Special Civil Application or in appeal filed before the High Court. The notification is not under challenge before us. The appellant also accepts that they were liable to pay the scales specified in the notification till the new tariff was notified pursuant to the constitution of the Tariff Authority, which it is accepted was notified and applicable with effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort boundaries shall be in the charge of the Traffic Manager who shall direct and manage all operations connected with the landing and shipping of goods, and with their storage in the shed and in the open. He shall have proper custody of all goods lying in the Port and taken whatever steps he may consider necessary for the proper maintenance of order. The Traffic Manager of the Port is obligated to control and manage the port operations, check obstructions to traffic movement and remove hinderance for efficient and proper use of berths, landing and shipping of goods and storage in the sheds and open area. Regulation 64 quoted in paragraph 9 above stipulates that loading and unloading of vessels was subject to control of the Traffic Manager who had the discretion to prohibit discharge of goods which are likely to obstruct traffic, cause congestion or hinder convenient movement at the Port. 13. It is clear from the Notes that the notification had empowered and left it to the Traffic Manager to deal with the question of unauthorised occupation, including the time-limits or period during which the goods could be authorised to be stored. The notification had not speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invalid, for this issue or contention has not been raised. As noted earlier, validity of the notification is not questioned and under challenge. Read in this manner, we do not think levy of penalty for unauthorised occupation of the space for period beyond sixty days of storage as fixed vide the impugned circular would be illegal and invalid. In fact, it would be in conformity and in consonance with the notification and in particular Notes 1, 4 and 5 thereof. The circular had brought about uniformity, clarity and transparency in the use of storage facilities at the Kandla Port. The circular though issued on 31st August, 1998 was made effective and applicable from 1st October, 1998. Therefore, the parties were given time to take steps to avoid the usage of the storage facility from being declared as unauthorised. 17. Other contention of the appellant as to absence of data indicating the details of congestion is an afterthought as this contention was not raised and argued before the High Court. The impugned circular specifically recorded that there was congestion at the Port which had necessitated issuance of the circular stipulating that storage of goods beyond the period ..... X X X X Extracts X X X X X X X X Extracts X X X X
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