Wellman Carbo Metalicks (India) Limited Vs. The Board of Trustees for The - Court Judgment

SooperKanoon Citationsooperkanoon.com/110567
CourtKolkata High Court
Decided OnJul-28-2017
JudgeDebangsu Basak
AppellantWellman Carbo Metalicks (India) Limited
RespondentThe Board of Trustees for The
Excerpt:
w.p.no.267 of 2011 in the high court at calcutta constitutional writ jurisdiction original side wellman carbo metalicks (india) limited versus the board of trustees for the port of kolkata & ors.for the petitioner : mr.soumya majumdar, advocate mr.amitava mitra, advocate ms.sumita shaw, advocate mr.parag chaturvedi, advocate for the respondent nos.1 to 5 (kopt) : mr.hirak mitra, sr.advocate mr.ashok kumar jana, advocate for the respondent no.6 : mr.sarathi dasgupta, advocate ms.ananya basu, advocate md.shehabuddin, advocate hearing concluded on : july 11, 2017 judgment on : july 28, 2017 debangsu basak, j.:- the petitioner has challenged the action of the kolkata port trust (kopt) authorities in levying charges in respect of occupation of an immovable property and the ultimate auction of the property belonging to the petitioner. learned advocate for the petitioner has submitted that, the petitioner as an importer had appointed the respondent no.6 as its agent. the respondent no.6 as the agent of the petitioner had applied to the respondent no.1 for the space for storage of coking coal at a yard space. kopt had permitted the petitioner to do so on the terms and conditions, noted in the grant of the permission. the petitioner had paid the rent, from time to time, fixed by kopt. kopt by a resolution bearing no.89 dated august 24, 2010, had introduced encroachment charges for delayed lifting of goods beyond the period of 30 days. the petitioner was issued a notice dated august 26/27, 2010. various correspondences had ensued between the parties. ultimately, the petitioner not being able to clear the goods, it was put on notice by kopt for auction sale. the petitioner had filed the instant writ petition. an interim order dated march 11, 2011 was passed, allowing the petitioner to lift the goods, by paying the entire amount claimed, subject to the result of the writ petition. the petitioner did not pay the claimed amount. the goods were ultimately sold in auction in 2014. learned advocate for the petitioner has submitted that, kopt is not entitled to charge at the rates it had levied on the petitioner. the charges are not in accordance with the rates fixed by tariff authority for major ports (tamp).in absence of the rate being fixed by tamp, kopt has no jurisdiction to levy charges arbitrarily. the charges levied upon the petitioner being arbitrary, it has to be set aside. he has referred to section 2(v) of the major port trust act, 1963 as well as sections 49(1)(c).49(3).59(1).123(i) and section 124 thereof and submitted that, the board of trustees cannot usurp the jurisdiction of tamp. alternatively, assuming that the kopt authorities are entitled to levy the charges as done in the present case, then, the charges has to be conscionable. kopt cannot misutilize its superior bargaining position to impose any charges upon the petitioner. even in the field of contractual obligations kopt authorities are required to act reasonably and fairly. the court should not permit an unconscionable contract. moreover, if the transactions between the parties are purely commercial and contractual as contended by the kopt authorities then, the kopt has to substantiate that, the petitioner had acknowledged the revised rates. an unilateral imposition of rent by kopt is not binding in the contractual field. adverting to the auction sale, learned advocate for the petitioner has submitted that, notice of such sale was not given to the petitioner. the properties belonging to the petitioner were sold at an undervalue without disclosing its valuation. the auction sale, therefore, stands vitiated. the auction was not conducted in accordance with section 61 of the major port trust act, 1963. in such circumstances, the reliefs sought for by the petitioner should be granted. learned senior advocate appearing for the kopt authorities has submitted that, the parties had entered into a non-statutory contract. a writ petition on the basis of a non-statutory contract is not maintainable. he has referred to the various provisions of the major port trust act, 1963 and submitted that, the board of trustees has the implied powers to carry on business in the best interest of the port. in the present case tamp rates were not governing in the field at the material point of time. the board was, therefore, empowered to decide on the rates. it had done so. the petitioner is obliged to adhere to such rates. the rates fixed by the board are binding upon the petitioner. the petitioner, having utilized the facility, cannot now be allowed to turn around and claim that, the rates as fixed by the board are higher or not payable. he has submitted that, section 49 of the major port trust act, 1963 does not apply to a licence and that, sub-section (3) thereof allows a higher rate to be fixed. the rates charged by the kopt have not been substantiated to be lower than that of the tamp rates assuming that, the tamp rates are governing the field. the petitioner having taken advantage of the situation, and having enjoyed the benefits flowing therefrom, is estopped from challenging the same. he has drawn the attention of the court to the fact that, kopt had raised demands on the petitioner. the petitioner had ignored the same. the sale was conducted after few advertisements. the writ petition ought to be dismissed. i have heard the rival contentions of the parties and the materials made available on record. the petitioner had imported coking coal in india. its agent being the respondent no.6, had applied on july 17, 2010 for 12,000 square meters for storage with the kopt authorities. the petitioner was granted a licence with effect from july 23, 2010 for a month, on ad hoc basis, for 12,000 square meters of space. the petitioner, through its agent being the respondent no.6, had applied on august 23, 2010, for renewal of licence for another month. kopt authorities had undertaken a joint measurement in presence of the representatives of the respondent no.6, acting as the agent of the petitioner, and it was found that, the petitioner, was in occupation of 15,000 square meters on monthly basis up to september 22, 2010. the petitioner, through the respondent no.6, made another application on september 29, 2010 for further renewal, for a period of one month. kopt authorities had, thereafter, renewed the licence for 12,500 square meters till october 22, 2010. on august 23, 2010, the petitioner, through the respondent no.6, had applied for additional storage space. on such application 4,500 square meters of space was granted on adhoc basis for one month. on measurement the petitioner was found to be in occupation of 6,500 square meters.accordingly, the licence was granted for 6,500 square meters.again on the application made on behalf of the petitioner, through the respondent no.6, the licence for 6,500 square meters were renewed by kopt authorities. the petitioner, therefore, came about to occupy two storage spaces of kopt. the board of trustees for kolkata port had by a resolution dated august 24, 2010 resolved to levy compensation of space allotted to the licensees. the petitioner was well-aware of the same. it did not challenge the same at the relevant point of time. the petitioner had failed to vacate its two occupations within the agreed period. in such circumstances, in terms of the resolution dated august 24, 2010, the petitioner was called upon to pay the outstanding in terms of such resolution. various demands were raised. the petitioner did not pay the same. the petitioner was considered to be in wrongful and unauthorized occupation of the two spaces after october 22, 2010. in the affidavit-in-opposition, the kopt authorities have taken a stand that, the petitioner stands to benefit by reason of the application of the rates formulated by the board resolution dated august 24, 2010 rather than the tamp rates as the board rates are substantially lower. this fact has not been substantiated to be incorrect by the petitioner. the transactions had between the parties as narrated above, are commercial in nature and purely on contractual basis. the contracts between the parties are non-statutory. a court, far less a writ court, is not required to rewrite the contract between the parties. the petitioner has not substantiated that tamp rates apply. it cannot be allowed to contend that, the kopt authorities cannot apply any rates as tamp rates are not applicable. the provisions of major port trust act, 1963 cannot be construed to mean that, where tamp rates do not apply, no rates can be realized by kopt despite a party utilizing a space of kopt for commercial benefit. the petitioner did not contest the imposition of the rates and charges contemporaneously. it did not contest the board resolution also. it would not be proper for the wirt court to enter into such contractual arena between the parties. none of the provisions of the major port trust act, 1963 cited on behalf of the parties prohibit the port trust authorities in entering into a contract and belonging with the immovable properties in terms of such contract. in the present case, although a land was used, essentially, the same was permitted to be used on a temporary basis for a particular purpose. essentially, the spaces were allotted to be utilized for the purpose of clearance of the goods. so far as the allegation of valuation and sale at a lower value is concerned, i find that, the kopt had issued various demand letters to the petitioner. the petitioner did not adhere thereto. the kopt authorities were, therefore, obliged to undertake the process of sale through public auction in order to recover its claim and to obtain the space. the fact that the sale was at an under value has not been conclusively established. the sale took place by public auction. the petitioner has not produced any material to suggest that, a higher bidder was wrongfully denied the purchase of the material. that not being the case, the allegation of sale at an under value is without any substance. in such circumstances, i find no merit in the present writ petition. w.p.no.267 of 2011 is dismissed. no order as to costs. [debangsu basak, j.].
Judgment:

W.P.No.267 of 2011 IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Original Side Wellman Carbo Metalicks (India) Limited versus The Board of Trustees for the Port of Kolkata & ORS.For the Petitioner : Mr.Soumya Majumdar, Advocate Mr.Amitava Mitra, Advocate Ms.Sumita Shaw, Advocate Mr.Parag Chaturvedi, Advocate For the Respondent Nos.1 To 5 (KoPT) : Mr.Hirak Mitra, Sr.Advocate Mr.Ashok Kumar Jana, Advocate For the Respondent No.6 : Mr.Sarathi Dasgupta, Advocate Ms.Ananya Basu, Advocate Md.Shehabuddin, Advocate Hearing concluded on : July 11, 2017 Judgment on : July 28, 2017 DEBANGSU BASAK, J.:- The petitioner has challenged the action of the Kolkata Port Trust (KoPT) authorities in levying charges in respect of occupation of an immovable property and the ultimate auction of the property belonging to the petitioner.

Learned Advocate for the petitioner has submitted that, the petitioner as an importer had appointed the respondent No.6 as its agent.

The respondent No.6 as the agent of the petitioner had applied to the respondent No.1 for the space for storage of coking coal at a yard space.

KoPT had permitted the petitioner to do so on the terms and conditions, noted in the grant of the permission.

The petitioner had paid the rent, from time to time, fixed by KoPT.

KoPT by a resolution bearing No.89 dated August 24, 2010, had introduced encroachment charges for delayed lifting of goods beyond the period of 30 days.

The petitioner was issued a notice dated August 26/27, 2010.

Various correspondences had ensued between the parties.

Ultimately, the petitioner not being able to clear the goods, it was put on notice by KoPT for auction sale.

The petitioner had filed the instant writ petition.

An interim order dated March 11, 2011 was passed, allowing the petitioner to lift the goods, by paying the entire amount claimed, subject to the result of the writ petition.

The petitioner did not pay the claimed amount.

The goods were ultimately sold in auction in 2014.

Learned Advocate for the petitioner has submitted that, KoPT is not entitled to charge at the rates it had levied on the petitioner.

The charges are not in accordance with the rates fixed by Tariff Authority for Major Ports (TAMP).In absence of the rate being fixed by TAMP, KoPT has no jurisdiction to levy charges arbitrarily.

The charges levied upon the petitioner being arbitrary, it has to be set aside.

He has referred to Section 2(v) of the Major Port Trust Act, 1963 as well as Sections 49(1)(c).49(3).59(1).123(i) and Section 124 thereof and submitted that, the board of trustees cannot usurp the jurisdiction of TAMP.

Alternatively, assuming that the KoPT authorities are entitled to levy the charges as done in the present case, then, the charges has to be conscionable.

KoPT cannot misutilize its superior bargaining position to impose any charges upon the petitioner.

Even in the field of contractual obligations KoPT authorities are required to act reasonably and fairly.

The Court should not permit an unconscionable contract.

Moreover, if the transactions between the parties are purely commercial and contractual as contended by the KoPT authorities then, the KoPT has to substantiate that, the petitioner had acknowledged the revised rates.

An unilateral imposition of rent by KoPT is not binding in the contractual field.

Adverting to the auction sale, learned Advocate for the petitioner has submitted that, notice of such sale was not given to the petitioner.

The properties belonging to the petitioner were sold at an undervalue without disclosing its valuation.

The auction sale, therefore, stands vitiated.

The auction was not conducted in accordance with Section 61 of the Major Port Trust Act, 1963.

In such circumstances, the reliefs sought for by the petitioner should be granted.

Learned Senior Advocate appearing for the KoPT authorities has submitted that, the parties had entered into a non-statutory contract.

A writ petition on the basis of a non-statutory contract is not maintainable.

He has referred to the various provisions of the Major Port Trust Act, 1963 and submitted that, the board of trustees has the implied powers to carry on business in the best interest of the port.

In the present case TAMP rates were not governing in the field at the material point of time.

The board was, therefore, empowered to decide on the rates.

It had done so.

The petitioner is obliged to adhere to such rates.

The rates fixed by the board are binding upon the petitioner.

The petitioner, having utilized the facility, cannot now be allowed to turn around and claim that, the rates as fixed by the board are higher or not payable.

He has submitted that, Section 49 of the Major Port Trust Act, 1963 does not apply to a licence and that, Sub-section (3) thereof allows a higher rate to be fixed.

The rates charged by the KoPT have not been substantiated to be lower than that of the TAMP rates assuming that, the TAMP rates are governing the field.

The petitioner having taken advantage of the situation, and having enjoyed the benefits flowing therefrom, is estopped from challenging the same.

He has drawn the attention of the Court to the fact that, KoPT had raised demands on the petitioner.

The petitioner had ignored the same.

The sale was conducted after few advertisements.

The writ petition ought to be dismissed.

I have heard the rival contentions of the parties and the materials made available on record.

The petitioner had imported coking coal in India.

Its agent being the respondent No.6, had applied on July 17, 2010 for 12,000 square meters for storage with the KoPT authorities.

The petitioner was granted a licence with effect from July 23, 2010 for a month, on ad hoc basis, for 12,000 square meters of space.

The petitioner, through its agent being the respondent No.6, had applied on August 23, 2010, for renewal of licence for another month.

KoPT authorities had undertaken a joint measurement in presence of the representatives of the respondent No.6, acting as the agent of the petitioner, and it was found that, the petitioner, was in occupation of 15,000 square meters on monthly basis up to September 22, 2010.

The petitioner, through the respondent No.6, made another application on September 29, 2010 for further renewal, for a period of one month.

KoPT authorities had, thereafter, renewed the licence for 12,500 square meters till October 22, 2010.

On August 23, 2010, the petitioner, through the respondent No.6, had applied for additional storage space.

On such application 4,500 square meters of space was granted on adhoc basis for one month.

On measurement the petitioner was found to be in occupation of 6,500 square meteRs.Accordingly, the licence was granted for 6,500 square meteRs.Again on the application made on behalf of the petitioner, through the respondent No.6, the licence for 6,500 square meters were renewed by KoPT authorities.

The petitioner, therefore, came about to occupy two storage spaces of KoPT.

The board of trustees for Kolkata Port had by a resolution dated August 24, 2010 resolved to levy compensation of space allotted to the licensees.

The petitioner was well-aware of the same.

It did not challenge the same at the relevant point of time.

The petitioner had failed to vacate its two occupations within the agreed period.

In such circumstances, in terms of the resolution dated August 24, 2010, the petitioner was called upon to pay the outstanding in terms of such resolution.

Various demands were raised.

The petitioner did not pay the same.

The petitioner was considered to be in wrongful and unauthorized occupation of the two spaces after October 22, 2010.

In the affidavit-in-opposition, the KoPT authorities have taken a stand that, the petitioner stands to benefit by reason of the application of the rates formulated by the board resolution dated August 24, 2010 rather than the TAMP rates as the board rates are substantially lower.

This fact has not been substantiated to be incorrect by the petitioner.

The transactions had between the parties as narrated above, are commercial in nature and purely on contractual basis.

The contracts between the parties are non-statutory.

A Court, far less a Writ Court, is not required to rewrite the contract between the parties.

The petitioner has not substantiated that TAMP rates apply.

It cannot be allowed to contend that, the KoPT authorities cannot apply any rates as TAMP rates are not applicable.

The provisions of Major Port Trust Act, 1963 cannot be construed to mean that, where TAMP rates do not apply, no rates can be realized by KoPT despite a party utilizing a space of KoPT for commercial benefit.

The petitioner did not contest the imposition of the rates and charges contemporaneously.

It did not contest the board resolution also.

It would not be proper for the Wirt Court to enter into such contractual arena between the parties.

None of the provisions of the Major Port Trust Act, 1963 cited on behalf of the parties prohibit the Port Trust authorities in entering into a contract and belonging with the immovable properties in terms of such contract.

In the present case, although a land was used, essentially, the same was permitted to be used on a temporary basis for a particular purpose.

Essentially, the spaces were allotted to be utilized for the purpose of clearance of the goods.

So far as the allegation of valuation and sale at a lower value is concerned, I find that, the KoPT had issued various demand letters to the petitioner.

The petitioner did not adhere thereto.

The KoPT authorities were, therefore, obliged to undertake the process of sale through public auction in order to recover its claim and to obtain the space.

The fact that the sale was at an under value has not been conclusively established.

The sale took place by public auction.

The petitioner has not produced any material to suggest that, a higher bidder was wrongfully denied the purchase of the material.

That not being the case, the allegation of sale at an under value is without any substance.

In such circumstances, I find no merit in the present writ petition.

W.P.No.267 of 2011 is dismissed.

No order as to costs.

[DEBANGSU BASAK, J.].