Judgment:
P.B. Majmudar, J.
1. By way of this writ petition, the petitioner, which is a private limited company, has invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India with a prayer that the decision taken by the first respondent to impose levy of penalty and additional landing charges amounting to Rs. 13,04,760/- and Rs. 10,79,560/- upon the petitioner is illegal and the said decision be quashed and set aside. The petitioner has therefore prayed for an appropriate direction to the first respondent to refund to the petitioner the amount of Rs. 23,84,320/- illegally levied and collected from the petitioner.
2. The petitioner company submitted a proposal to the first respondent on 23rd September, 1997, seeking permission to use Mandwa jetty for unloading consignment of coal which was likely to arrive on 27th November, 1997. The first respondent, Maharashtra Maritime Board, issued a No Objection Certificate ('NOC' for short) to the petitioner on 17th November, 1997, inter alia, containing certain terms and conditions. The petitioner thereafter entered into an agreement with one M/s. Glencore India Limited, whereunder the petitioner was obliged to import coal for Maharashtra State Electricity Board's Thermal Power Station at Nashik. Thereafter, the petitioner requested the first respondent to finalise the draft agreement between the petitioner and the first respondent for usage of the jetty. However, the first respondent vide letter dated 24th November, 1997, informed the petitioner that the agreement could be finalized only when the petitioner submitted a No Objection Certificate from the owner of the land where the unloaded coal would be stored. The agreement in question remained unexecuted. The petitioner, as per clause 5 of the No Objection Certificate, paid the first respondent a sum of Rs. 10 lakhs by way of security. Subsequently, the ship m.v. Unterwalden arrived and discharged the cargo into the barges. The first respondent subsequently informed the petitioner by its letter dated 13th December, 1997, to stop discharge of cargo from the barges on the ground that the petitioner had not abided with the condition prescribed in the said NOC. Subsequently, the petitioner complied with the requirement of the first respondent and an agreement was executed between the parties on 20th January, 1998. On 7th September, 1998, the first respondent sent a letter to its Port Officer that a penalty quantified at three times the rate of Rs. 15 per metric tonne be imposed on the petitioner for not abiding the requisite conditions. It is not in dispute that the petitioner thereafter made the requisite payment aggregating to Rs. 23,84,320/- . However, the said payment was made under protest. Subsequently, the petitioner requested the first respondent on 12th October, 1998 for waiving the penalty imposed upon the petitioner stating that the petitioner had spent a large amount in developing the jetty and to make the same operational. The first respondent rejected the said request for waiver of the penalty on 16th March, 1998. The petitioner thereafter entered into correspondence with the first respondent for reimbursement of penalty and excess wharfage charges.
3. The petitioner ultimately has approached this Court by way of this writ petition under Article 226 of the Constitution of India. The petition was filed in December, 2000. We have already indicated above the prayers sought for by the petitioner in this petition.
4. Mr. Mukharjee, the learned Counsel appearing for the petitioner, submitted that the action of the first respondent in imposing penalty and excess wharfage charges was without any authority of law and that the said action had been taken in a high-handed manner and, therefore, this Court may issue necessary writ, order or direction under Article 226 of the Constitution of India directing the first respondent to refund the said amount to the petitioner. In this connection, reference is required to be made to the NOC dated 17th November, 1997, which is at Exhibit-A to the petition. By the said NOC, the petitioner was given permission to use the Mandwa jetty to unload lime stone, scrap and coal/coke for one fair season from the date of issue of the NOC, subject to certain terms and conditions. The terms and conditions are attached to the said NOC. Condition No. 4 is in connection with payment of berthing charges, in addition to the wharfage at one and half time of the rate fixed for the captive jetties. Condition No. 5 is in connection with requirement of deposit of Rs. 10 lakhs interest free with the first respondent during the currency of the agreements. It also provides that the deposited amount would be refunded to the party at the end of the agreement, after deducting Rs. 2 lakhs as the maintenance costs. Several other clauses are also mentioned in the said NOC.
5. It is required to be noted that as per the NOC, the petitioner was not entitled to use the jetty till the agreement was executed between the parties. It seems that on the ground of urgency, the petitioner started utilising the said jetty on the basis of the NOC granted by the first respondent. Subsequently, as mentioned hereinabove, an agreement was also executed between the parties on 20th January, 1998. Clause 4 of the said agreement provides that the Company would be required to pay berthing charges, in addition to the wharfage at one and half time of the rate fixed for the ferry and the captive jetties. It is not in dispute that on the basis of the said agreement, petitioner carried out the work in connection with unloading of the coal. The payments which were demanded by the first respondent towards penalty and in connection with wharfage charges were also made by the petitioner. The petitioner by its letter dated 5th October, 1998 clearly informed respondent No. 1 that the said payment was made under protest as the petitioner was not satisfied with the decision of first respondent in the matter of charging of penalty and payment of landing fees (wharfage) at the rate prescribed by the first respondent.
6. The learned Counsel for the petitioner submitted that certain clauses in the agreement are clearly arbitrary and ultra virus the powers of the first respondent. It is submitted by Mr. Mukherjee that the NOC does not provide for imposition of any penalty as also the agreement does not contain any clause for payment of penalty, it was, therefore, not open for respondent No. 1 to impose penalty upon the petitioner. Mr. Mukherjee further submitted that even otherwise, clause 4 of the agreement is arbitrary and ultra virus the powers of the first respondent as the first respondent could not have fixed the rate which is contrary to Bombay Landing and Wharfage Fees Act, 1882 by which the Government has fixed the fees to be levied on the various commodities for landing and shipping services within the limits of all the minor ports in the State of Maharashtra. According to the learned Counsel for the petitioner, Mandwa is a notified minor port within the State of Maharashtra and, therefore, the provisions of the said Act and the notification issued thereunder do not apply to all cargo discharged at Mandwa as well. It is submitted that for coal and coke the rate prescribed in the said notification is Rs. 10/- per metric ton. The action of the first respondent is arbitrary and since first respondent is a public body, it is submitted by the learned Counsel for the petitioner that this Court may issue suitable directions under Article 226 of the Constitution of India directing the first respondent to refund the amount which the petitioner had paid under protest as the said levy is without any authority of law.
7. Mr. Umesh Shetty, learned Counsel for the first respondent, on the other hand, submitted that this petition under Article 226 of the Constitution of India is not maintainable firstly because this Court cannot entertain a petition where the prayer sought is for the refund of money. It is submitted by the learned counsel for the first respondent that the proper remedy for the petitioner is to file a substantive suit. Since, however, at the time of the filing of the instant petition, the suit was time barred and, therefore, the petitioner has chosen to file this writ petition. According to the learned Counsel, as per Section 24 of the Maharashtra Maritime Board Act, 1996, the Board can enter into contract with any individual and prescribe the terms and conditions governing the contract. Accordingly, the petitioner entered into contract with the first respondent and having signed the documents on its own volition, and having taken advantage of the said agreement, it is not now open for the petitioner to challenge the action of the Board in levying the appropriate charges as per the agreement. In connection with the penalty, the learned Counsel has fairly submitted that though the agreement may not prescribe any clause for imposition of penalty, however, since the Board had sustained some loss, the amount of penalty was charged from the petitioner. The learned Counsel further submitted that the matter in issue is in connection with the contractual terms and, therefore, the writ petition is not a proper remedy. Learned Counsel further submitted that even after the expiration of the agreement dated 20th January, 1998, the petitioner entered into an agreement for the subsequent period and at no point of time had made any grievance in connection with any of the clauses provided in the agreement and therefore under the said circumstances no relief can be granted to the petitioner. In support of his submission, the learned Counsel has relied upon decisions of the Supreme Court of India that for refund of the amount the writ petition is not the appropriate remedy.
8. We have heard the learned Counsel appearing for the parties at length and we have gone through the petition and documents annexed with the same as well as the affidavit-in-reply filed on behalf of the first respondent.
9. It is not in dispute that on the basis of correspondence between the parties, the first respondent granted NOC to the petitioner on 17th November, 1997 prescribing various conditions. On the basis of the NOC, the petitioner without entering into an agreement, started the work of operating jetty in the matter of unloading of the coal. It is also not in dispute that subsequently the petitioner has entered into an agreement in this behalf though, as pointed out earlier, the petitioner started operating the jetty in connection with the loading and unloading of coal at the jetty, even though there was a specific condition in the no objection certificate that the petitioner shall not act unless an agreement is entered into in this behalf. In this connection, it is required to be noted that for the subsequent years the petitioner also entered into agreement with the first respondent which contain similar clauses. So far as the penalty clause is concerned, that was added subsequently in the agreement. It is the specific stand of the first respondent that in the absence of execution of necessary agreement, the petitioner had no right to proceed to land/discharge the cargo of coal at the jetty and that the petitioner had illegally and unauthorisedly discharged/unloaded the cargo of coal at Mandwa jetty even before the execution of the agreement. On the aforesaid basis, the first respondent tried to justify its action in levying penalty. It is required to be noted that the petitioner had not made any grievance during the subsistence of the agreement in connection with the landing fees which was charged at one and half times of regular rate. It is also required to be noted that this very petitioner had also filed another writ petition being Writ Petition No. 496 of 2002 wherein the stipulated clause 5 of the agreement dated 17th November, 1997 was challenged on the same grounds. The Division Bench of this Court vide its order dated 6th September, 2002 has observed as under.
6. Firstly, we are of the opinion that the dispute raised by the petitioner is pure and simple dispute relating to contract entered into between the parties and it cannot be said that it relates to realm of public law. Secondly, the contract was entered into between the parties on 17th November, 1996 and the said contract clearly provides that interest free deposit of Rs. 10 lakhs made by the petitioner during the currency of agreement shall be refunded to the petitioner at the end of the acquirement after deducting Rs. 2 lakhs as the maintenance cost. Such contract even if not specifically referable to any provisions of the Maharashtra Maritime Board Act, 1996, cannot be said to be void or voidable under Indian Contract Act, 1872. Moreover, during the currency of agreement the petitioner never challenged the legality or validity of clause 5 of the contract. It is only after the contract came to an end and the refund was made after deducting maintenance cost, the present dispute has been sought to be raised by means of extraordinary jurisdiction which we are afraid, is not a proper remedy.
10. In our view, so far as the argument of Mr. Mukharjee in connection with challenge to clause 4 of the agreement on the ground that it is ultra virus the powers of the Board is concerned, since the petitioner having accepted the said agreement and having acted upon on the basis of the said clause, it cannot now make any grievance especially when the petitioner has already taken advantage of the NOC and subsequently agreement was entered into between the petitioner and the first respondent. It is not in dispute that during the currency of the agreement, the petitioner had never challenged any of the clauses of the said agreement and only at the time of conclusion of the contract that the petitioner has tried to raise the grievance in this behalf. We, accordingly, do not find any justification in the argument advanced by Mr. Mukharjee in this behalf.
11. The next question which falls for our consideration is in connection with charging of penalty and the landing charges. It is no doubt true that at the time of granting the NOC, though various conditions have been prescribed, no condition regarding levy of was prescribed. It is no doubt true that the Board had not given any particulars as to on what basis the amount of penalty was levied on the petitioner. The amount of penalty was paid by the petitioner under protest on 5th October, 1998. The petitioner thereafter had not bothered to take any legal action in this behalf for a considerable period. Instead, the petitioner went on making correspondence requesting the first respondent to waive the penalty on the ground that the petitioner had developed the jetty. The petitioner has not even addressed any letter asking the first respondent that the action of the first respondent in levying penalty from the petitioner is without any authority of law or that it is de hors the contractual rights of the parties. Apart from the said aspect, it is required to be noted that the stipulated period for filing a civil suit is prescribed under Section 105 of the Maharashtra Maritime Board Act, 1996. The same reads as under:
105. No suit or other proceeding shall be commenced against the Board or any member or employee thereof for anything done, or purporting to have been done, in pursuance of this Act until the expiration of one month after notice in writing has been given to the Board or to such member or employee stating the cause of action or after six months after the accrual of the cause of action.
12. It is not in dispute that within the aforesaid period of six months, the petitioner had neither approached this Court by way of any writ petition nor filed any civil suit. The petitioner, in fact, continued with the contract and at its conclusion tried to enter into correspondence with the first respondent and has ultimately filed this writ petition in December, 2001. By that time, even the limitation for filing the civil suit has also come to an end. Learned Counsel for the petitioner further submitted that if the action is arbitrary, illegal and unjust, this Court can certainly interfere with such decision in its extraordinary jurisdiction under Article 226 of the Constitution of India. So far as the powers of this Court are concerned, it is submitted by the learned Counsel for the petitioner that they were very wide and no period of limitation is prescribed for approaching this Court under Article 226 of the Constitution of India. It is true that for approaching this Court under Article 226 of the Constitution of India, period of limitation is not prescribed but the question which requires consideration is as to whether this Court can exercise its extraordinary jurisdiction under Article 226 of the Constitution of India in a given case where the petitioner has not invoked the remedy of filing a civil suit within the statutory period prescribed for filing of such a suit. It is submitted by Mr. Mukherjee that the period of six months for filing suit is short and, therefore, the said remedy is illusory. In this connection, reference is required to be made to the decision of the Supreme Court in the case of V.M. Salgaocar and Bros. v. Board of Trustees of Port of Mormugao and Anr. : AIR2005SC4138 . In the said case, the Supreme Court while considering the period of six months regarding filing of suit under Major Port Trusts Act, 1963 has held that the Major Port Trusts Act, 1963 is a special Act and as per the limitation provided under the said Act, the suit has to be filed within six months of the accrual of he cause of action and it has to be preceded by one month's notice. The period of limitation prescribed under the said Act has been held to be proper and valid by the Supreme Court. It has been held that merely because an Act prescribes a shorter period of limitation than some other Acts, that Act cannot be declared unconstitutional on that ground. In our view, ordinarily though period of limitation is not prescribed for filing a writ petition, this Court would be slow in exercising its extraordinary jurisdiction under Article 226 of the Constitution of India to entertain a claim which is otherwise time barred. The petitioner in the instant case has failed to take any action within the prescribed period of limitation by filing appropriate suit or even has not approached this Court within the aforesaid period. Though the dispute in question is in connection with the contractual rights between the parties, still in a given case, the Court may entertain such petition. However, the party approaching the Court is required to approach the Court within the reasonable period and if the remedy of a civil suit is allowed to become time barred, normally Court may not entertain such a petition in its extraordinary jurisdiction under Article 226 of the Constitution of India. In this connection, reference is required to be made to the decision of the Supreme Court in the case of Tilokchand and Motichand and Ors. v. H.B. Munshi and Anr. : [1969]2SCR824 . In the aforesaid decision, it has been held by the Supreme Court in paras 10 and 11 as under.
10. If then there is no period prescribed what is the standard for this Court to follow? I should say that utmost expedition is the sine qua non for such claims. The party aggrieved must move the Court at the earliest possible time and explain satisfactorily all semblance of delay. I am not indicating any period which may be regarded as the ultimate limit of action for that would be taking upon myself legislative functions. In England a period of six months has been provided statutorily, but that could be because there is no guaranteed remedy and the matter is one entirely of discretion. In India, I will only say that each case will have to be considered on its own facts. Whether there is appearance of avoidable delay and this delay affects the merits of the claim, this Court will consider it and in a proper case hold the party disentitled to invoke the extraordinary jurisdiction.
11. Therefore, the question is one of discretion for this Court to follow from case to case. There is no lower limit and there is no upper limit. A case may be brought within Limitation Act by reason of some article but this Court need not necessarily give the total time to the litigant to move this Court under Article 32. Similarly in a suitable case this Court may entertain such a petition even after a lapse of time. It will all depend on what the breach of the Fundamental Right and the remedy claimed are when and how the delay arose.
13. In the instant case, the period of limitation is prescribed under the Act. Even during that period, the petitioner has not filed the above writ petition. In fact, the petitioner entered into an agreement for the subsequent periods without making any grievance in this behalf and requested the first respondent only to waive the penalty. Considering the aforesaid conduct of the petitioner as well as considering the fact that the petitioner has allowed its claim to become time barred by not approaching the appropriate Court within the prescribed period of limitation, it is not entitled to any relief from this Court in its extraordinary jurisdiction under Article 226 of the Constitution of India.
14. Considering the aforesaid aspect of the matter, we are of the opinion that if a party allows the period of limitation prescribed under the Act to lapse it should not ordinarily be allowed to say that the petition should be entertained as there is no period of limitation prescribed for filing such a writ petition. Normally, the Court may not issue any writ when party does not approach the Court within the reasonable time and even statutory time prescribed under the particular statue for taking action is allowed to be over. The facts of the instant case cannot be said to be an exceptional case in which this Court would like to entertain this petition in spite of the fact that the petitioner has filed this petition at a belated stage as the payment as per the demand of first respondent was made as back as in the year 1998 and the petition was filed in December, 2000 and in the meanwhile the period prescribed for filing suit has also come to an end. Considering the totality of the facts and circumstances of the case as enumerated above, we do not find any justification to set aside the levy of penalty and additional charges imposed upon the petitioner as the petitioner has missed the bus by not availing of the remedy at law.
15. At this stage, a submission of the learned Counsel for the first respondent is required to be noted. He submitted that the petitioner has not stated anything in the petition that the amount in question was required to be paid by the petitioner from its own coffer as ultimately the petitioner was doing business and in all probability they must have recovered the amount from the consignee. However, we would not like like to comment anything on this aspect as no material has been produced before us for coming to the conclusion that grant of reliefs would amount to unjust enrichment.
16. In view of what has been stated above, the petition is required to be dismissed and is accordingly dismissed. Rule is discharged.