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TMI Blog1988 (1) TMI 364X X X X Extracts X X X X X X X X Extracts X X X X ..... and the amendment was published in the Maharashtra Government Gazettee dt. 29th Dec., 1983. In consequence of the amendment, the said vessel became liable to anchorage fees from 28th Jan., 1984. 4. On 10th Sept., 1984 the said vessel was arrested by the B.P.T. for failure to pay its charges, amounting on 1st Aug., 1984 to ₹ 2,14,031.35. The notice then issued by the B.P.T. stated that the said vessel would be sold under the provisions of Section 64(2) of the said Act, after obtaining the permission of this Court, if its charges were not paid within 5 days. On 7th Jan., 1985 the advocates of the B.P.T. informed the Sheriff of the arrest made by the B.P.T. and called upon him to inform bidders for the said vessel that it would not be permitted to be removed until the B.P.T. charges were paid. 5. On 2nd April, 1985 an order was passed by this Court in Notice of Motion No. 199 of 1985 (taken out by a crew member) in Admiralty Suit No. 22 of 1980 (filed by another crew member) directing the Sheriff to sell the said vessel. On 30th April, 1985 the present suit was filed and the said vessel arrested therein. On 10th May, 1985 the B.P.T. wrote to the Sheriff calling upon hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st Nov., 1985 the claimant just mentioned took out a Notice of Motion in Admiralty Suit No. 22 of 1980 for determining his claim. Interim orders were passed therein on 20th Dec., 1985; the Sheriff was directed to pay the claimant, while retaining the sum of ₹ 9,10,031.25, which was claimed by the B.P.T. as anchorage fees up to 24th Oct., 1985 and interest thereon. 7. In the meantime, on 10th Dec., 1985 a decree for ₹ 2,98,239.85 was passed in the present suit. 8. In support of the notice of motion Mr. Gomes submitted that the amended Scale of Rates had no legal effect because Section 52 of the Act had not been complied with. Section 49 of the Act requires the Board of a Major Port Trust to frame from time to time a scale of rates on payment of which, and a statement of conditions under which............ any place within the limits of the port or the port approaches may be used. Such use may be for the purpose of approaching or lying at or alongside any buoy, mooring, wharf, etc. Section 52 requires that every scale of rates and every statement of conditions framed by a Board shall be submitted to the Central Government for sanction and shall have effect when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refused to deliver the said vessel to the Sheriff and to its purchaser. Having done so, the B.P.T. had lost its lien upon the said vessel and could claim no priority for payment of its dues. 12. Section 64 empowers the B.P.T., in the event of failure to pay the rates in respect of a vessel, to distrain or arrest it and its tackle, apparel and furniture and to detain the same until the amount due, and such further amount as may accrue during the period during which the vessel is under distraint or arrest, is paid. Sub-section (2) thereof empowers the B.P.T. to sell what is distrained or arrested if its dues remain unpaid for five days after such distress or arrest. 13. Mr. Gomes drew attention to the Sheriff's report dt. 15th Oct., 1985 and the order thereon. He also drew attention to the certificate issued by the Sheriff on 28th Oct., 1985 physically delivering to its purchaser the said vessel on 'as is where is' basis, charter free, free from maritime lien, free from mortgages and port dues incurred up to the date of the sanction of the sale . Mr. Gomes laid stress on the fact that though the B.P.T. had not been given notice of the report dt. 15th Oct., 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im to a lien upon or right against the fund in priority to other claimants. The Harbour Board had no such lien or right. If the ship had been allowed to leave the dock, the Harbour Board would have been left to make a futile claim against the fund in Court. 15. The important thing to note is the principle that the lien given by statute to a dock or harbour authority cannot be extinguished by Court unless it be done with the authority's express or implied consent. It destroys the argument that the order of the learned judge dt. 21st Oct., 1985 on the Sheriff's report dt. 15th Oct., 1985 had the effect of extinguishing the B.P.T.'s Hen on the said vessel and that the B.P.T. had acquiesced therein by not seeking its variation. 16. In British Transport Docks Board v. Owners of Proceeds of Sale of the Steamships or Vessels, (1966) 3 All ER 117, cited by Mr. Gomes, the plaintiffs were the harbour authority for the Port of Lowestoft and the defendants were the owners of the vessel, which had incurred debts in respect of dock dues and charges. The vessel had been sold under the orders of the Court and the proceeds of the sale were in Court. The plaintiffs claimed prio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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