Ahmadi, C.J.I - (1.) -These two appeals arise from a common judgment of the Division Bench of the High Court of Kerala on a reference made to it by a learned single Judge of that Court. The High Court found itself confronted with the question whether the Cochin Port Trust is entitled, under the Major Port Trusts Act, 1963 (hereinafter referred to as the Major Port Trusts Act) the Indian Port Act, 1908 (hereinafter referred to as the Indian Ports Act) and the Regulations made thereunder, to demand an unconditional cash deposit from the owner of a ship which caused damage to the property of the Port Trust.
(2.) The appellants in Civil Appeal No. 2427/94, South India Corporation (Agencies) Ltd., are the agents of the vessel, M. T. Larnaca. The appellants in Civil Appeal No. 2426/94, M/s Luga Bay Shipping Corporation, are the owners of the said vessel. The respondents are the Board of Trustees of the Port of Cochin (hereinafter referred to as the Port Trust), and its Deputy Conservator. The vessel entered the Port of Cochin on June 6, 1984, and was berthed at Berth No.2. On June 14, 1984, the vessel, while being shifted from Berth No. 2 to the North Tanker Berth, dashed against the northern side of the RCC platform on which the gravity fenders were suspended, causing damage to the platform. Notice of damage to the platform was served on June 20, 1984. The appellants do not dispute that the vessel was berthed in the North Tanker Berth on June 14, 1984. However, they deny that any damage was caused by the vessel to any property of the Port Trust during such berthing. The Port Trust, on the other hand, claims that the damage assessed by the Port Chief Engineer was of Rs. 33.82 lakhs. The second respondent, the Deputy Conservator of Port Trust, requested the local agents of the vessel, by a notice dated June 29, 1984, to deposit that amount. They were also informed that the vessel would be allowed to sail from the Port only after the amount was deposited.
(3.) The Shipping Corporation, the petitioner before the Court, filed a writ petition under Article 226 of the Constitution of India which was registered as Original Petition No. 5822 of 1984. It prayed for calling of the records leading to the issue of notice (Exhibit P.6) dated June 29, 1984 and to quash the same by an appropriate writ; to declare condition No. 6 of the Notification dated January 8, 1980 fixing the scale of rates and statement of conditions for levy of charges by the Port Trust under Sections 48, 49 and 50 of the Major Port Trusts Act ultra vires the Act and the Constitution; to declare Regulations Nos. 3 and 43 of Cochin Port Trust Regulation, 1975 ultra vires the provisions of the Indian Ports Act and the Major Port Trusts Act and to restrain the respondents from enforcing the aforesaid two regulations. We will shortly advert to the impugned provisions of the Notification dated January 8, 1980 and the Cochin Port and Dock Regulation, 1975. The learned single Judge of the High Court referred the case to a Division Bench. The Division Bench posed the question whether the Cochin Port Trust is entitled, under the Major Port Trusts Act, the Indian Ports Act and Regulations made thereunder, to demand an unconditional cash deposit from the owner of the ship which allegedly caused damage to the property of the Port Trust. The Division Bench examined the provisions of Section 116 of the Major Port Trusts Act, and came to the conclusion that, in a situation like the one on hand, the amount of damage must be determined by the Board and that the liability of the Master and owner of the vessel was absolute. Section 116 can be reproduced for ready reference: "116. Recovery of value of damage to property of Board. - If, through the negligence of any person having the guidance or command of any vessel, or of any of the mariners or persons employed on such vessel, any damage is caused to any dock, wharf, quay, mooring, stage, jetty, pier or other work in the possession of any Board, for any movable property belonging to any Board], the amount of such damage shall, on the application of the Board be recoverable, together with the cost of such recovery, by distress and sale, under a Magistrates warrant of a sufficient portion of the boats, masts, spares, ropes, cables, anchors or stores belonging to such vessel: Provided that no Magistrates shall issue such a warrant until the Master of the vessel has been duly summoned to appear before him and, if he appears, until he has been heard; and provided also that no such warrant shall issue if the vessel was at the time under the orders of a duly authorised employee of the Board and the damage caused was attributable to the order, act or improper omission of such employee." The High Court held that the Board needed to approach the Magistrate only for effecting the recovery of the amount and that the Magistrate is required to hear the Master of the vessel before issuing a warrant for recovery, but not for quantification of the damage. The High Court went on to examine the provisions of the English Law, as contained in Section 74 of the Harbours Docks and Piers Clauses Act and the ratio of certain cases decided thereunder, and came to the conclusion that the liability of the Master or owner of the vessel with regard to damage caused to dock, wharf, quay, mooring, stage, jetty, pier, etc., is absolute. The High Court also made a reference to Section 131 of the Major Port Trusts Act and held that the provision for a civil suit made therein was without prejudice to any other action that can be taken under that Act and was meant to be employed when the proceeds of sale of the property of the vessel were insufficient to meet the penalties payable or recoverable by the Board. The High Court also examined the provisions of Clause (6) of the Notification dated January 8, 1990 which requires the Conservator of Ports to take necessary steps to ascertain the amount of damages, and to serve a notice specifying the amount wherefor he was entitled to seize the vessel which caused the damage and to detain the same till the amount was paid. That clause further provided that the Conservator could sell the vessel and out of the sale proceeds, recover the damages as well as the cost of seizure, detention and sale. The High Court opined that the Master of the vessel could get the dispute over the quantum of damages resolved by a competent Civil Court. According to the High Court, in view of the provisions of the Major Port Trusts Act and the Rules framed thereunder, there was no force in the argument of the appellants that assessment of damages done unilaterally by the respondents was against the rules of natural justice and, therefore, void.;