- (1.) The writ petitions are made for common cause of action. Therefore directed to be heard in an analogous hearing. Either their grievance is in the instant writ petition and many other as available of refund of hoisting and landing charges paid by the petitioners in advance as per the petitioners refund application or non-payment of the same. Facts of the first case is taken into account. According to the petitioners, thus brought various wood materials from outside to the Calcutta Port by vessel or vessels which had its own hoister/crane for the purpose of lifting the same. Whenever the vessels are arriving at the shore year marked for the Port Trust Authority the goods were being hoisted by the hoister/crane attached to the vessel itself and dropped directly to the trucks or carriers standing on the shore. Therefore, the petitioners are not liable to pay hoisting charges at all and partial landing charges for occupying space by the Port Trust. In this case, the petitioners paid charges for the entry of the trucks or carriers as well as for shoring the steamer or vessel in the jetty of the Calcutta Port Trust Authority. They are not claiming the refund in connection thereto. But when the authority concerned compelled them to pay certain charges on account of hoisting and landing other than the payment already made, forced to pay to avoid damage and thereafter made the writ petition. The claim of the governmental authority, is to be based on fair bona fide and reasonable. If any amount compelled to be given and subsequently found not to be legally charged by the governmental authority then the same is to be declared as unjust enrichment and will be refunded. Ld. Counsel appearing for the petitioners contended that Chapter VI of the Major Port Trust Act, 1963 specifically Sections 48, 49 and 55 are relevant for the purpose of coming to an appropriate conclusion. Section 48 speaks for the scale of rates for services rendered by the Port or other person. When Section 49 speaks for scale of rates and statement of conditions for use of property belonging to Port. Section 53 says about the exemption from and remission of rates and charges when Section 55 says for refund of overcharges. According to Section 55 no person shall be entitled to a refund of an overcharge made by a port unless his claim to the refund has been preferred in writing by him or on his behalf of the port within six months from the date of payment duly supported by the relevant documents. Provided that a Board may of its own motion, remitting overcharges made in its bills at any time. It appears that application for refund was made sometime in between May and September, 1987 wherein payments were made upto April, 1987. That apart, in between August and November, 1987 several meetings were held by the Association and approaches were made in this regard. Hence, it cannot be construed that the claim of the refund was made out of the period nor it be made if it is directed by the Court to do so, the authority will not carry out the same.
(2.) From Sections 48 and 49 it is clear that in certain circumstances the rates for the services are to be imposed. These are as follows: "Section 48 (a) Transhipping of passengers or goods between vessels in the Port or Port approaches; (b) Landing and shipping of passengers or goods from or to such vessels to or from any wharf, quay, jetty, pier, dock berth, mooring stage or erection land or building in the possession or occupation of the Port or at any place within the limits of the Port or Port approaches; (c) Cranage or portage of goods on any such place; (d) Wharfage, storage or demurrage of goods on any such place; (e) Any other service in respect of vessels, passengers or goods excepting the services in respect of vessels for which fees are chargeable under the Indian Port Act; Section 49: (a) Approaching or lying at or alongside any busy, mooring wharf, quay, pier, dock, land, building or place as aforesaid by vessels; (b) Entering upon or applying for hier at or on any wharf, quay, pier, dock, land, building, road, bridge or place as aforesaid by animals or vehicles carving passengers or goods; (c) Boosing of land or sheds by owners of goods imported or intended for expert 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, or 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)". As per Section 53 the Board of the Port Trust Authority may in special cases and for reasons to be recorded in writing exempt either wholly or partially goods or vessels or classes of goods or vessels from the payment of any rate or any charge leviable in respect thereof according to any scale in force under this Act or remit the whole or any portion of such rate or charge so levied. Therefore, unlike the power of the Central Government for modification or cancellation of the rates under Section 54 is the scope of exemption and remission of rates and charges which are also available under Section 53 of the Act.
(3.) Section 53 deals with exemption when Section 55 deals with refund. Refund is technically feasible when the payment has already been made in respect of the rates and charges and the exemptions which will be applicable when the rates and charges are to be made but However such technicality cannot overcome the situation in case of unjust enrichment, if any. It is to be remembered that refund cannot have any basis unless certain sums seem to be exempted or remitted. In other words, if, unjust enrichment is declared then the charges are to be declared as overcharge and be refunded. But the basis would be payments made earlier would not have been paid. If certain recovery is made and subsequently found that the same is illegally recovered it has to be refunded because the very basis of the claim is unfounded.;