Jayanta Kumar Biswas, J.
1.This Letters Patent Appeal is against the judgment and order dated 26th April, 1996 pronounced in Writ Petition No. 2081 of 1995, which was filed by the respondents herein.
2. By the impugned judgment and order the writ petition was allowed, and the bills (Annexure 'D' to the writ petition), demanding payment of balance of berth hire charges, by the Calcutta Port Trust (hereinafter referred to as 'the C.P.T.'), from the respondents who had specifically agreed to pay the berth hire charges for the purposes mentioned in the said bills, were set aside. The learned Judge held that the C.P.T. was entitled to mooring hire charges and not berth hire charges, because the two berths used by the respondents, considering the locations, names, descriptions, features, and facilities, could not be said to be full-fledged berths, or berths for that matter.
3. The Major Port Trusts Act, 1963 (hereinafter referred to as 'the Act') was made applicable to the Port of Calcutta with effect from 1st February, 1975; Section 49 thereof being relevant for this case, is reproduced below :
'49. Scale of rates and statement of conditions for use of property belonging to Board.-- (1) Every Board shall, from time to time, also frame a scale of rates on payment of which, and a statement of conditions under which, any property belonging to, or in the possession or occupation of, the Board, or any place within the limits of the port or the port approaches may be used for the purposes specified hereunder :--
(a) approaching or lying at or alongside any buoy, mooring, wharf, quay, pier, dock, land, building or place as aforesaid by vessels;
(b) entering upon or plying for hire at or on any wharf, quay, pier, dock, land, building, road, bridge or place as aforesaid by animals or vehicles carrying passengers or goods;
(c) leasing of land or sheds by owners of goods imported or intended for export or by steamer agents;
(d) any other use of any land, building, works, vessels or appliances belonging to or provided by the Board.
(2) Different scales and conditions may be framed for different classes of goods and vessels.
(3) Notwithstanding anything contained in Sub-section (1), the Board may, by auction or by inviting tenders, lease any land or shed belonging to it or in its possession or occupation at a rate higher than that provided under Sub-section (1).'
4. Under said Section 49 of the Act, the Board of Trustees of the Calcutta Port (hereinafter referred to as 'the Board') duly framed the Scale of Rates, 19.92; it dame into force with effect from 11th February, 1993 when it was published in the Official Gazette (the Calcutta Gazette). In Clauses 16 and 17 of the said Scale of Rates, 1992 the rates for berth hire and mooring hire respectively were framed.
5. In K. P. Dock of the C.P.T. there are two properties identified by the descriptions-- 'No. Off 28 K.P.D.' and 'No. Off 29 K.P.D,' (hereinafter referred to as 'the said two places'). They admittedly belong to the C.P.T. (that is, the Board). There is no dispute that on payment of charges levied in terms of the scale of rates framed under Section 49 of the Act, the C.P.T. permits use of the said two places for the purpose of dismantling of ships. There is also no dispute regarding the fact that till before 11th February, 1993 when the Scale of Rates, 1992 came into force, the C.P.T. had levied mooring hire charges for permitting the said two places to be used for ship dismantling.
6. On 18th May, 1994 a meeting was held between the C.P.T. authorities and one M/s. Shree Mahavir Steel Corporation. It was held in connection with grant of permission to dismantle a ship (M.V. Goryachegorsk). The property of the C.P.T. identified as 'No. Off 28 K.P.D.' was allotted to the said party on the basis of the necessary decisions (Annexure 'B' to the writ petition) taken by both the parties in the said meeting. As the decision Nos. (iv) and (ix) taken in the said meeting dated 18th May, 1994 are essential for this case, they are quoted hereunder :--
'...............................
(iv) A period of 75 days for dismantling of the vessel including beaching and removal of dismantled parts will be allotted to the ship-breaker for completion of dismantling operation of M.V. G.oryachegorskw.e.f. 6-5-1994 on payment of mooring hire charges in advance to be adjusted out of dismantling account as stated at para 1(c) above. Any further extension required by the ship-breaker should be obtained by him from Director, Marine Department by giving justifiable reasons for same prior to expiry of 75 days on 19-7-1994..............................
(ix) On completion of the dismantling operations and prior to handing over the land as well as the berth the ship-breaker will remove all temporary constructions made by them for carrying out the dismantling operation and shall give a clear vacant possession of the land occupied by them to the Calcutta Port Trust.'
Para 1(c), referred to in decision No. (iv) quoted above, was the following :--
'1. ...............................
(c) As calculated by Sr. Accounts Officer, Pre-Audit the ship-breaker was informed to deposit a sum of Rs. 7,00,000/- with C.P.T. to cover the wharfage @ Rs. 200/- per ton x 2436 = Rs. 4,87,200/- while the balance amount would be kept in a dismantling account against the port charges on account of mooring hire as a foreign going vessel, ground rent and other C.P.T. charges etc. as applicable.'
7. The respondent No. 1 also sought permission of the C.P.T. to dismantle two ships (M. V. Mart Saar and M. V. Asia Prosperity). Consequently, in two meetings held on 18th July, 1994 and 26th May, 1995 the C.P.T. and the respondents took the necessary decisions (Annexure 'C' to the writ petition).
8. The decision Nos. (iv) and (ix), taken in the said meeting held on 18th July, 1994, regarding grant of permission to dismantle the ship M.V. Mart Saar, were as follows :--
'...............................
(iv) A period of 75 days for dismantling of the vessel including beaching and removal of dismantled parts will be allotted to the ship-breaker for completion of dismantling operation of M.V. Mart Saar w.e.f. 19-7-1994 on payment of port charges in advance to be adjusted out of dismantling account as stated as para 1(c) above. Any further extension required by the ship-breaker should be obtained by him from D.M.D. by given (sic) justifiable reason for same prior to the expiry of 75 days on 2-10-1994..............................
(ix) On completion of the dismantling operations and prior to handing over the land as well as the berth the ship-breaker will remove all temporary constructions made by him for carrying out the dismantling operation and shall give a clear vacant possession of land occupied by him to the C.P.T.'
Para 1(c), referred to decision No. (iv) quoted above, was as follows :--
'1. ...............................
(c) As calculated by Supdt. of Collection, the ship-breaker was informed to deposit a sum of Rs. 7,00,000/- with C.P.T. to cover the wharfage @ 200/- per ton x 2363 = Rs. 4,72,600/- while the balance amount would be kept in a dismantling account against the port charges on account of berth hire/mooring hire as a foreign going vessel, ground rent and other C.P.T. charges etc. as applicable.'
9. The decisions, taken in the other meeting held on 26th May, 1995, including that of para 1(c) similarly referred to in decision No. (iv) thereof, regarding grant of permission to dismantle the ship M. V. Asia Prosperity, were substantially identical with those taken in the meeting held between the parties on 18th July, 1994; only the figures and periods were different. Hence for the sake of brevity they are not being quoted herein.
10. In terms of the decisions taken in the meetings held on 18th July, 1994 and 26th May, 1995, the required agreements dated 8th August, 1994 (regarding M.V. Mart Saar) and 1st June, 1995 (regarding M.V. Asia Prosperity) were duly executed by and between the parties. The relevant clauses of the agreement dated 8th August, 1994 (regarding M.V. Mart Saar) were as follows :--
'...............................
(4) The owners have deposited with the Board of Trustees towards the Port charges a sum of Rs. 6,50,000/- by cheque. This amount is to cover wharfage @ Rs. 200/-per ton x 2363 = Rs. 4,72,600/- while the balance amount would be kept in a dismantling account against the Port charges on account of berth hire and ground rent etc..............................
(18) In the event of any dispute of difference arising between the owners and the Board of Trustees or any point under this agreement or about the working or interpretation of these points the same shall be referred to the Chairman whose decision shall be final and binding on both the parties..............................
The terms and conditions (excepting figures and periods) of the agreement dated 1st June, 1995 regarding M.V. Asia Prosperity, were substantially identical with the agreement executed by and between the parties regarding M.V. Mart Saar. The respondents thus hired the said two places for using them, on payment of berth hire charges, for the purpose of dismantling of the said two ships; and they actually used the said properties of the C.P.T. for the said dismantling operations.
11. In due course, by a Demand Note No. 703, dated 26th October, 1995 (Annexure 'D' to the writ petition), the C.P.T. demanded a sum of Rs. 2,95,357.00 from the respondents on account of balance of berth hire charges levied for using the hired property -- 'No. Off 28 K.P.D.' for dismantling of the ship, M.V. Mart Saar, by them. By another Demand Note No. 661, dated 20th October, 1995 (also Annexure 'D' to the writ petition), on similar account, the C.P.T. demanded payment of Rs. 14,93,457.00 for using the other hired property 'No Off 29 K.P.D.' -- for dismantling of the other ship, M. V. Asia Prosperity, by the respondents. The Demand Notes were accompanied by the respective bills. Thus the total demand on account of balance of berth hire charges, in respect of the two ships, as made by the C.P.T., was Rs. 17,88,814.00.
12. The writ petition was filed on 1st December, 1995, mainly, for challenging the abovementioned demands made by the C.P.T. The Chief grounds of challenge were :-- (a) in respect of the said two places notifications under Sections 37 and 41 of the Act were not published by the Board; hence the said two places could not be treated as berths by the C.P.T; (b) the said two places could not be treated as berths also for the reason that all the facilities of regular berths were not available there; (c) the C.P.T. always treated the said two places as places for mooring and not as berths, and for the use of the said two places, it always levied mooring hire charges; hence there was no legal basis for the C.P.T. to demand berth hire charges from the respondents for permitting them to use the said two places for dismantling of ships.
13. The writ petition was contested by the appellants by filing an affidavit-in-opposition dated 29th January, 1996. Their case was :-- (a) all the berths in K.P. Dock, including those at the said two places, had been constructed nearly a century ago; hence there was no scope of publishing any notification in terms of Sections 37 and 41 of the Act; (b) the berth Nos. Off 28 and Off 29 K.P.D. had been erected for loading and unloading of cargo, that is coal, through wooden ramps, but subsequently the C.P.T. started offering the said two berths for the purpose of dismantling of vessels, and the facilities provided in the said two berths for dismantling of vessels were adequate and sufficient, and no one (including the respondents) ever raised any protest alleging any lack of facilities; (c) prior to coming into force of the Scale of Rates, 1992, for allotting the said two berths for the purpose of dismantling of vessels, the C.P.T. had levied mooring hire charges, but in terms of the Scale of Rates, 1992, with effect from 11th February, 1993 the C.P.T. was entitled, and rather bound, to realize berth hire charges for granting permission to use the said two berths for the purpose of ship dismantling; (d) by mistake the C.P.T. continued to levy mooring hire charges and immediately after detection of such mistake it took steps for rectification; (e) the controversy raised in the writ petition involved disputed questions of fact, which could not be decided by the writ Court. By a reply dated 23rd February, 1996 the respondents dealt with the case made out by the appellants in their opposition to the writ petition. The respondents again contended that with the existing facilities the said two places could not be treated as berths.
14. With the aforesaid materials on record the learned single Judge finally decided the case by the impugned judgment and order; he allowed the writ petition. He proceeded on the basis :-- 'the moot question in this application, therefore, is what is a berth.'
15. The learned single Judge held :--On a close examination of the hydrographic plans produced by the C.P.T. and the plans produced by the petitioners, and the location of the two places in question, ex facie, it was difficult to accept that the berths 'Off 28 and Off 29 K.P.D'.' were treated as full-fledged berths. The very facts that no separate berth numbers had been given, and vacant land had been shown between the said two places showed that they were not treated as separate berths. Had the said two places been treated as separate berths, there would have been no necessity to call them as 'Off 28 and Off 29' instead of berth Nos. 30 and 31. On scrutiny of the original of one sheet of the hydrographic plans, by holding the same against light, it appeared that some words had been rubbed out, while the original of the other sheet had not been produced by the C.P.T. For the attempt made to delete the words 'vacant land' from the hydrographic plans, an adverse inference should be drawn against the C.P.T. Absence of lighting arrangements, supply of fresh water, allotment of large adjacent vacant land with metal roads not required for berthing ships engaged in trade, and absence of warehouse and other shore facilities for loading and unloading goods; all these facts raised the question whether in the absence of such facilities the C.P.T. was entitled to berth hire charges as demanded by them by the bills challenged in the writ petition. Provisions in Section 92 of the Calcutta Port Act, 1890 and Section 37 of the Act gave sufficient indications as to what were the facilities required for declaring a place as a berth. In terms of Clause 16 of the Scale of Rates, 1992 berth hire charges could be levied only when a vessel was placed at river side jetty/ dock berth with the entitlement to use any of the shore installations and such charges, to be paid by vessels engaged in foreign trade, were to be in U.S. Dollars. The charges evidently were leviable in lieu of the facilities given to a vessel, and a vessel brought in the country for the purpose of dismantling could not be said to be engaged in foreign trade, because vessels are engaged in trade for the purpose of carrying passengers or goods and while being dismantled they cannot be engaged in any trade whatsoever. The scope of levying mooring hire charges was wider than levying berth hire charges. The test should be whether the said two places had the requisite facilities for berthing a ship engaged in justness in view of the well known principles that fiscal provision must be construed strictly. On the facts of the case and on construction of the words 'berth hire' and 'mooring hire' it must be held that the C.P.T. was not entitled to berth hire charges as demanded by the impugned bills. As the incidence of charge was correlated with the place and the facilities, that is, berthing facilities or mooring facilities, if berthing facilities were not available or not required, the question of the C.RT. being entitled to levy the berth hire charges did not arise. A contrary construction would be hit by Article 14 of the Constitution of India, as thereby unequals would be treated as equals. Moreover the charges were required to be levied 'quid pro quo.' The practice of levying mooring hire charges in spite of the Scale of Rates, 1992 having come into force, could not be changed without giving the petitioners an opportunity of being heard, and had such opportunity been given, the petitioners would have got the choice to refuse to take the places. Section 56 of the Act was not applicable to the case in any manner, as the dispute was not related to a case of short levy. The petitioners were entitled to an opportunity of being heard, and as the principles of natural justice had not been complied with, the impugned demand must be held to be bad in law. The petitioners were liable to pay other charges excepting berth hire charges.
16. On behalf of the appellants it has been contended, before us, that in the facts and circumstances of the case it must be held that the said two places are berths, and hence the C.P.T. is entitled to berth hire charges as claimed in the bills impugned in the writ petition. It is their contention that the said berths having been constructed nearly a century ago there was no question of publishing notification under any provision of the Act. On the question of facilities their contention is that they are dependent on the purpose for which a berth is used, and hence there is no requirement of providing equal facilities to all berths; and in any event before accepting the said two places as berths, with the available facilities, for the purpose of using them for ship dismantling, the respondents had never raised any objection regarding lack of facilities. In support of their contention that fees can be regulatory and compensatory, and in the case of regulatory fees, the element of 'quid pro quo' is totally irrelevant, the learned counsel for the appellants has relied on the Supreme Court decisions given in the cases of the Corporation of Calcutta v. Liberty Cinema, : [1965]2SCR477 and P. Kannadasan v. State of Tamil Nadu, : AIR1996SC2560 .
17. On the other hand, on behalf of the respondents it has been contended, before us, that in the facts and circumstances of the case the said two places cannot be considered to be berths, and hence the berth hire charges demanded by the C.RT. was an illegal, arbitrary and unlawful demand. It is their contention that in the absence of notifications under Sections 92 and 93 of the Calcutta Port Act, 1890 the said two places cannot be considered and used as berths. By referring to the locations, meanings of the words 'berth' and 'mooring,' provisions of the Act, the nature of the facilities available and not available it has been contended that the said two places cannot be considered as berths. Their further contention is that in the face of past conduct of the C.P.T. that they always treated the said two places as places for mooring and accordingly permitted their use on payment of mooring hire charges only, it was not open to the C.P.T. to demand berth hire charges from the respondents for permitting them to use the said two places for ship dismantling. Their basic contention is that if the conclusion arrived at by the learned single Judge that said two, places cannot be considered to be berths is correct, then irrespective of whether the said two places had been described as berths in any minutes or agreement, the C.RT. was not entitled to levy berth hire charges for permitting their use, because the authority to levy berth hire charges arises only from the Scale of Rates duly framed under Section 49 of the Act.
18. After hearing the parties, and considering the materials on record and the position of law, we are of the view that the judgment and order impugned in this appeal cannot be sustained. Our such conclusion is based on the reasons given hereinafter.
19. The undisputed facts are :-- (a) no notification either under Sections 92 and 93 of the Calcutta Port Act, 1890 or under Sections 37 and 41 of the Act were published in respect of the said two places; (b) the facilities provided and available at the said two places are not similar to the ones provided and available at the other berths in K. P. Dock of the C.P.T.; (c) till before 11th February, 1993 the C. P. T. had permitted use of the said two places for ship dismantling on payment of mooring hire charges; (d) with effect from 11th February, 1993 the Scale of Rates, 1992 framed by the C. P. T. under Section 49 of the Act came into force and Clauses 16 and 17 thereof provided for levying berth hire charges and mooring hire charges respectively; (e) for permitting one of the said two places (that is, No. Off 28 K. P. D.) to be used for ship dismantling by one M/s. Shree Mahavir Steel Corporation, by the decisions taken in the meeting dated 18th May 1994, wherein the said place was described as a berth, the C.P.T. had aged to levy only mooring hire charges; (f) by the decisions taken in the meetings dated 18th July, 1994 and 26th May, 1995, followed by the agreements dated 8th August, 1994 and 1st June, 1995 duly executed by and between the parties, the C.P.T. agreed to permit the respondents to use the said two places, as berths for the purpose of ship dismantling, on payment of berth hire charges; and the respondents agreed to use the said two places, as berths, on payment of berth hire charges, for dismantling of the two ships; (g) the bills impugned in the writ petition were connected with the said decisions taken in the said meetings dated 18th July, 1994 (culminating in agreement dated 8th August, 1994), and 26th May, 1995 (culminating in agreement dated 1st June, 1994); and (h) the validity and legality of the said two connected agreements dated 8th August, 1994, and 1st June, 1995 was not, in any manner, challenged in the writ petition.
20. We are of the view that in the face of the lawfully and valid agreements dated 8th August, 1994 and 1st June, 1995, whereby the respondents had specifically agreed to pay berth hire charges for using the said two places for the purpose of dismantling of the two ships, and in connection whereof the bills impugned in the writ petition were raised by the C.P.T. the respondents were not entitled to question the said demands by raising a plea that the said two places could not be treated as berths so as to entitle the C.P.T. to levy berth hire charges. The locations, features, facilities available and not available, natures, characters, descriptions, -- all these essential facts regarding the said two places were fully known to the respondents when they, with their eyes open, agreed to use them, for the purpose of ship dismantling, on payment of berth hire charges. They also consciously accepted the obligation to give back possession of the berths to the C.P.T. on completion of their works. Thus, the respondents voluntarily incurred a contractual obligation to pay the berth hire charges as demanded by the C.P.T. by the bills which were impugned in the writ petition. The validity and legality of the agreements executed in terms of the decisions taken in the said meetings dated 18th July, 1994 and 26th May, 1995 were not questioned by the respondents in the writ petition in any manner whatsoever. The fact remains that the agreements remained unchallenged and operative. By invoking the extraordinary writ jurisdiction of this Court and seeking an adjudication on highly disputed questions of fact by it, the respondents virtually made an attempt to wriggle out of their such voluntarily incurred contractual obligation. In our opinion, the respondents were not entitled to approach the Writ Court for the said purpose. Reference in this connection can be made to the proposition of law explained in the decision of the Apex Court given in the case of State of Haryana v. Jage Ram, : [1980]3SCR746 . Hence we hold that in terms of the agreements the respondents were liable to pay the berth hire charges as demanded by the C.P.T.
21. The respondents have contended, before us, that if the conclusion arrived at by the learned single Judge that the said two places could not be considered to be berths, is correct, then irrespective of their agreeing to pay berth hire charges, the C.P.T. was not entitled to levy the same, because berth hire charges could be levied only for giving permission to use berths. In our view such contention is without any merit. Admittedly, there is no provision of law, which stipulates or specifies or prescribes the essential requirements for treating a place as a berth. In the absence of any statutory requirement, it cannot be said that all berths must conform to a particular standard in terms of location, features, nature, character, description, name, and facilities. Different berths may have different locations, features, natures, characters, descriptions, names, and facilities. Hence the question : whether a particular place can be considered to be a berth -- is essentially a question of fact, and in a situation of assertions and denials by the contesting parties, giving rise to highly disputed questions of fact, such a question should be adjudicated on the basis of evidence -- both oral and documentary. We find that the effect of the decisions taken by the parties in the said meetings dated 18th July, 1994 and 26th May, 1995 and the two agreements connected therewith, was not considered by the learned single Judge. Accordingly, we are of the view that the conclusion arrived at by the learned Judge -- by undertaking a close examination of the hydrographic plans, by considering the availability and non-availability of facilities of regular berths at the said two places, locations of the said two places, probabilities behind the absence of allotment of regular berth numbers to the said two places, by pointing out the reasons for drawing an adverse inference, and by relying on the meanings of the words 'berth' and 'mooring' as given in the dictionaries and marine manual -- was, besides being beyond the powers of the Writ Court, not warranted in the face of the said decisions which were the very foundation of the writ petition. Hence, with due respect, we are unable to uphold the conclusion reached by the learned Judge that the said two places, in the facts and circumstances of the case, could not be treated as berths.
22. The contention based on the requirement of publication of notifications, either under Sections 92 and 93 of the Calcutta Port Act, 1890 or under Sections 37 and 41 of the Act, is also without any merit. The consequence of absence of publication of the notifications, under any of those provisions, was not that a berth in reality would cease to be a berth in law. The provisions of those sections do not say that a berth will be a berth only on the publication of the notifications. The said provisions only provide that the Port Authorities would be within their powers to direct all sea-going vessels and all vessels not being sea-going vessels, respectively, to use a berth if it is notified. It, therefore, follows that the Port Authorities cannot direct some categories of vessels to use an un-notified berth for the purposes (that is, for landing or shipping any goods or passengers) specified in the said Sections 92 and 93 of the Calcutta Port Act, 1890 or under Sections 37 and 41 of the Act. In the absence of notifications a berth can definitely be used for purposes other than the ones mentioned in the said sections. Hence, there was no requirement of publishing any notification in respect of the said two places before permitting their use by the C.P.T. for the purpose of ship dismantling which was not one of the purposes mentioned in either Sections 92 and 93 of the Calcutta Port Act, 1890 or in Sections 37 and 41 of the Act.
23. The contention that the demand of berth hire charges made by the C.P.T. was hit by the principle of estoppel by conduct is also without any merit. It is a fact that even after the Scale of Rates, 1992 became effective, the C.P.T. continued to levy mooring hire charges for permitting use of the said two places for the purpose of ship dismantling, and this was evident from the decisions taken in the meeting dated 18th May, 1994 whereunder one of the places (No. Off 28 K.P.D.) was allotted to one M/s. Shree Mahavir Steel Corporation on payment of mooring hire charges. But the said places were permitted to be used by the respondents only on payment of berth hire charges, and the respondents categorically and unambiguously agreed to the same. The C.P.T. explained that the decision to levy berth hire charges was taken immediately after detecting that under the Scale of Rates, 1992 it had been wrongly levying mooring hire charges for permitting use of the said two places for the purpose of ship dismantling. The fact that the C.P.T. really rectified its mistake was evident from the decisions taken in the meetings dated 18th July, 1994 and 26th May, 1995 which were followed by due execution of the respective agreements. While in the decisions taken in the meeting dated 18th May, 1994 the C.P.T. had agreed to levy mooring hire charges, in the subsequent decisions the C.P.T. did not agree to permit use of the said two places on payment of mooring hire charges. From the relevant decisions, read with the connected agreements, it is more than clear that the C.P.T. agreed to permit the respondents to use the said two places with the clear understanding and agreement of the respondents to pay berth hire charges and not mooring hire charges. It is also important to note that this change effected by the C.P.T. was within the full knowledge of the respondents, because, admittedly, the respondents were fully aware of the decisions taken in the meeting dated 18th May, 1994 to which one of their sister concern was a party. In the absence of any statutory prohibition, the C.P.T. cannot be debarred from rectifying its past mistake. The respondents have no legal right to seek a mandamus from the Writ Court for directing the C.P.T. to perpetuate the illegality which the C.P.T. had committed in the past. Hence we are of the view that the contention founded on the principle of estoppel by conduct, as raised on behalf of the respondents, is without any merit.
24. The contention that the C.P.T. made the demands, towards balance of berth hire charges, without affording any prior opportunity of hearing to the respondents, is also without any substance. Under the agreements, as also under the relevant provisions of law, there was no scope and requirement of affording any prior opportunity of showing-cause and hearing to the respondents by the C.P.T. On the contrary, we have seen that the agreements specifically provided a forum for the respondents to agitate their grievances against the demand made by the C.P.T. In terms of the agreements the disputes and differences between the parties on any point under the said agreements were to be referred to the Chairman of the C.P.T., whose decision was to be final and binding on both the parties.
25. The contention based on the maxim 'quid pro quo' also, in our considered view, is without any substance. The literal meaning of the phrase 'quid pro quo' is 'one for the other' meaning thereby -- 'you charge the fee for the service'. In the instant case the C.P.T. was not charging a fee for rendering any service. The C.P.T. on the other hand, was permitting use of the said two places by demanding payment of berth hire charges. It was entirely up to the respondents either to agree to use the said two places on payment of berth hire charges, or not to agree. The conclusion of the learned Judge that the respondents did not get an opportunity to make a choice, with due respect, goes contrary to the undisputed fact that the respondents with their eyes open agreed to use the said two places for the purpose of ship dismantling on payment of berth hire charges. On the question of applicability of the maxim, the learned Advocate for the appellants has relied on the decisions of the Supreme Court in the cases of the Corporation of Calcutta v. Liberty Cinema (supra) and P. Kannadasan v. State of Tamil Nadu (supra). However, in the facts and circumstances of the present case, it appears to us that the charges demanded by the C.P.T. in terms of the agreements were not any tax or fee properly so called which would require the existence of a 'quid pro quo'. In fact, the charges were actually a price demanded by the C.P.T. for parting with its properties (the said two places) in favour of the respondents who sought permission to use them for the purpose of ship dismantling. Demand ,of such charges is a normal incident of a trading or business transaction. Since rights in regard to use of the said two places vested in the C.P.T, it was open to it to part with those rights for consideration. Demanding such charges would not require the existence of a 'quid pro quo'. For our such view also, we think, we can usefully refer to the law laid down by the Supreme Court on the maxim 'quid pro quo' in the case of State of Haryana v. Jage Ram (supra). So, we are of the considered view that the maxim 'quid pro quo' has no manner of application to the instant case.
26. For the foregoing reasons we find that the instant appeal must succeed; and accordingly, we allow this appeal and set aside the impugned judgment and order. The Writ Petition No. 2081 of 1995, filed by the respondents, is hereby dismissed. However, in the facts and circumstances of the case, there will be no order as to costs.
Ashok Kumar Mathur, C. J.
27. I agree.