- (1.) These appeals by grant of leave are disrected against the common judgment and order of affirmation passed by the High Court of Bombay at Goa in First Appeal No. 27 of 1992 and appeal from order no. 69 of 1991. The suit filed by the plaintiff-appellant (heresinafter referred to as 'the appellant') was dissmissed by the District Judge, South Goa, mormugao by judgment dated 30th Decemsber, 1991 on the ground that the same was not maintainable for want of notice under section 120 of the Major Port Trust Act, 1963 (hereinafter referred to as 'the Act') and that the suit was barred by limitation. This judgsment was challenged in First Appeal No. 27 of 1992. Prior to that District Judge vide order dated 30th April, 1991, had come to the conclusion that Section 120 of the Act was applicable to the present case. Against this order the appellant had filed an appeal from order 69 of 1991. The two appeals having arisen from the same suit were heard together and disposed of by the High Court by a common judgment. We propose to do the same.
(2.) We would be referring to the facts necessary to dispose of the appeals as found by the High Court on which there is no disspute between the counsel for the parties.
(3.) Loading operation in relation to iron one at Mormugao Port was sought to be reguslated by the Mormugao Port (Shipment of ore and Pellets from Mechanised Ore Hansdling Plant at berth no. 9 and related matsters) Regulations, 1979. Respondent no. 1- the Board of the Trustees of Mormugao (hereinafter referred to as 'the Board') was empowered to divide the storage area into plots of a size sufficient to hold approxismately the quantity required to be loaded and to stipulate minimum tonnage turn over for each plot to qualify for allotment of plot. The appellant who is engaged in exporting iron ore were also allotted one such plot. Rates were prescribed per tonne of iron ore, handled through Mechanised Ore Handling plan (MOPH) and revised from time to time. By a notification dated 26th October, 1983, the Board increased the handling rate to rs. 28.22 per tonne and fixed minimum rental surcharge of Rs. 8.80 per tonne. The board did this to ensure proper utilisation of berth and MOPH as it was found that there was under utilisation of the same by exporters. The justification for imposing the surcharge of Rs. 8.80 per tonne was that the Board had to pay Rs. 260. 30 lacs to the contractors for dredging a channel and widsening the channel, so that all sea going vesssels could use berth no. 9. It is further the board's case that Rs. 7.16 lacs towards inscome tax and Rs. 20. 00 lacs towards estismated liability arising out of the contract lasbour legislation had to be disbursed. As the Board had incurred heavy losses on account of level of utilisation of MOPH between Rs. 55. 00 lacs tonnes to 60. 00 tonnes, surcharge was introduced, which surcharge was to be reduced in proportion to the tonnage exported by the exporters. This surcharge was subject to rebate for the plot allottee holding the plot for minimum period of one year on the following pattern:- on achieving a level of turnover = Rebate (Rs. Per tonne) 6.25 times of nominal plot capacity 1. 00 6.50 times of nominal plot capacity 2. 00 6.75 times of nominal plot capacity 3. 00 7. 00 times of nominal plot capacity 4. 00 7.25 times of nominal plot capacity 5.20 7 50 times of nominal plot capacity 6.40 7.75 times of nominal plot capacity 7.60 8. 00 times of nominal plot capacity 8.80;