D.K.Seth, J. - (1.) In this appeal in course of hearing three points emerged. The first point that emerged was whether the absence of individual notice to the owner of the goods in terms of section 61(3) of the Major Port Trust Act, 1963 would affect the validity of the auction sale and passing of title to the goods to the auction purchaser. The second point that cropped up was whether the Port Trust could take steps for sale of the goods by auction in terms of section 61 during the pendency of the application for waiver of demurrage charges made by the importer under section 53 of the Major Port Trust Act 1963. The main argument was advanced on these two points, either in support or against the setting aside of the auction sale. The third point that emerged, in course of hearing the appeal, was with regard to the compliance of section 61 (2) affecting the validity of the auction itself. Facts :
(2.) Before we attempt to answer the points raised, we may briefly refer to the facts. In August 2001, the writ petitioner/respondent Pashupati Agrochem Nepal (P) Ltd. (PANPL) imported three consignments of copper scarps in six containers through Haldia Dock Complex of the Kolkata Port Trust (KoPT). The said consignments were in transit through the port of Haldia to Nepal. The writ petitioner/importer had appointed clearing agent M/s. Kapur & Compalny to clear the goods. The writ petitioner importer alleged that by reason of the dispute between the writ petitioner and its clearing agent, goods could not be cleared and were lying with the Port Trust authorities. The clearing agent wrote a letter on 14th August, 2002 (Page 69 of the paper book) that the consignment could not be cleared because of non payment of detention charges and port demurrage charges by the writ petitioner/importer. The importer was fully aware that the goods were lying with the Port Trust Authority from August, 2001. It was well within the importer's/ clearing agent's knowledge that the uncleared goods are liable to be sold by the Port Trust Authorities under section 61 of the Act. The importer made the first waiver application on 11th February, 2004 (pages 64 and 65 of the paper book). This was addressed to the Chairman not to the Board of the KoPT. In the said waiver application the importer admitted the demurrage and detention charges of Rs. 1.5 crore to be outstanding to KoPT. This application was held by the KoPT to be incomplete and therefore was not considered (page 164 and 165 of the paper book). The second waiver application was made by the importer on 9th March, 2004 (page 66 of the paper book). In this application the importer enclosed a chart showing details of the demurrage charges (page 104). The application was considered by the KoPT and was rejected; and this rejection was conveyed to the importer (page 87 of the paper book). In its third waiver application made on 19th March 2004 the importer offered Rs. 25 lacs against the admitted demurrage charges of Rs. 145 lacs. According to the KoPT, this application was not maintainable, (page 166 of the paper book). (1) On the other hand in or about August 2003 since the writ petitioner did not approach the authorities of KoPT for clearance of the said consignments and since no delivery challans and/or documents were filed with the KoPT on behalf of the writ petitioner, the said consignments were put up for sale for the first time after issuing advertisement in the newspapers and after publication in the Calcutta Gazette. However the goods were withdrawn from sale as the price offered was not adequate. On September 25, 2003 a second advertisement was published in the Statesman, Kolkata inviting tenders in connection with the sale of the consignment intimating that further details can be obtained from the office of the KoPT. On October 22, 2003, this advertisement was again published in the Statesman Kolkata and the Pratidin inviting tenders in respect of the consignment informing that the details and the description of the goods could be obtained from the office of the KoPT. In November, 2003 this second attempt to sell the consignments also became infractuous as the price offered was very low. (2) In the meantime PANPL, the importer filed a civil suit No. 167 of 2003 in this Court in June 2003 against its clearing agent M/s. Kapoor & Co. making KoPT proforma respondent No. 7 for compensation on the ground that the clearing agent did not arrange for clearing the goods. In the plaint the importer pointed out that due to huge demurrage charges the clearing of the goods had become uneconomical. In connection with the said money suit no interim order was passed in relation to the dealing with the goods by the KoPT. (3) In the circumstances the Board of the KoPT had put up the said consignments to sale under section 61 of the Major Port Trust Act, 1963 after due publication of notification/notices etc. The consignments were sold by auction on 26th February 2004. The auction sale was confirmed by the Board of the KoPT by its resolution No. 64 dated 12th March 2004 approving the said auction sale. (4) On the ground that the third waiver application was not considered, the writ petitioner/respondent moved the writ petition on 29th March, 2004 viz., after the auction sale had taken place but before delivery could be taken by the appellants/auction purchasers. In one case one of the appellants had deposited the full price and in other case the interim order was issued in the writ petition after the earnest money was deposited but before the full price could be paid by the other appellant. In the said writ petition a direction was given to the KoPT to consider the application for waiver The KoPT in terms of the said order considered the said waiver application and passed an order which reads thus : "Against this backdrop and particularly; keeping in view the friendly relations the Government of India have with Royal Government of Nepal, the Trustees after deliberation resolved to sanction the followings :- i) 80% of the consignment wise demurrage charges (i.e. basic demurrage charge + 10% Special Rate) accrued up to the date of delivery, may be waived subject to realization of demurrage charges at least equivalent to the respective CIF values of the three consignments, provided- a) PANPL [Pashupati Agrochem Nepal (P) Ltd.] takes delivery of the cargo within 15 days from the date of communication of this order. b) PANPL prior to taking delivery of the cargo, submits 'No Objection' (addressed to KoPT) from the purchasers, towards delivery of the cargo to PANPL on payment of interest to such purchasers, if so demanded, as proposed by M/s. PANPL during hearing the case by the Trustees on 16.8.2004. In this ease, after deposition of the required amount of demurrage charges by PANPL (after adjusting Rs. 40 lakh already deposited by them) and on receipt of the aforesaid 'No Objection' from the purchasers but prior to effecting delivery of the cargo to the importer the sale of 3 lots to M/s. Soorajmal Baijnath Industries Pvt. Ltd. & M/s. Bharathi Rubber Lining & Allied Services Pvt. Ltd. approved by the Board of Trustees vide resolution No. 64 dated 12.3.2004, would be cancelled under intimation to the aforesaid purchasers. ii) If the order at sub para (i) above is complied with by PANPL, KoPT would refund the Earnest Money Deposit or Sale value to M/s. Soorajmal Baijnath Industries Pvt. Ltd. and M/s. Bharathi Rubber Lining & Allied Serviced Pvt. Ltd., as the case may be, without interest, within 15 days from the date of physical delivery of the three consignments. ill) In case the order in sub para (i) above is not complied with by PANPL, KoPT would move the Hon'ble Court for vacating of the stay order passed by the Hon'ble Court on 29.3.2004. Upon vacation of the stay order, M/s. Soorajmal Baijnath Industries Pvt. Ltd. would be allowed to deposit the balance amount within 15 days from the date of communication of the vacation order failing which Earnest Money Deposit lying with KoPT would be forfeited. Upon vacation of stay order and on receipt of full sale value the purchaser would be allowed to take delivery of the sold lots within a period of another 15 days failing which the Sale Value so deposited would be forfeited. Since, M/s. Bharathi Rubber Lining & Allied Services Pvt. Ltd. have already deposited the full sale value, they would be allowed to take delivery of their lot within a period of 15 days from the date of vacation of the stay order, failing which the sale value already lying with KoPT, would be forfeited. On completion of delivery to the purchasers Rs. 40 lakh already deposited by PANPL, would be refunded to them without interest." (5) The learned single Judge, ultimately, was pleased to allow the writ petition on 19th November, 2004 holding inter alia that the auction sale could not be held without notice to the importer and was pleased to set aside the auction sale and direct delivery of the goods on following terms : "For the reasons mentioned hereinbefore, the goods in question could not have been put up for sale in auction and therefore, the steps taken by the Port Trust authorities in this regard were totally unauthorized and illegal. Accordingly, the sale of the imported goods of the petitioner company by holding auction by the respondents Port Trust Authorities cannot be sustained and the same is therefore quashed. In the aforesaid circumstances, the added respondents will have no claim over the aforesaid imported goods of the petitioner company. The respondent Kolkata Port Trust authorities are directed to take immediate appropriate steps for delivery of the good in question to the petitioner company within 15 days from the date of communication of this order subject to payment of demurrage charges asf mentioned in the order dated 23rd August, 2004 passed by the Board of Trustees for the Port of Kolkata and without demanding any no objection certificate from the aforesaid intending purchasers, namely, the added respondents herein. Needless to mention that if the petitioner company herein fails to take delivery of the goods in question in terms of this order within the time mentioned hereinabove, then the authorities of the Kolkata ort Trust will be at liberty to deal with the goods in question in terms of the aforesaid order dated 23rd August, 2004 passed by the Board of Trustees for the Port of Kolkata." (6) Thus, it is against this order the present appeal has since been preferred by the two auction purchaser/respondents. Major Port Trust Act : Section 53 and Section 61 :
(3.) In order to answer the question we may first refer to section 53 and section 61 of the Major Port Trust Act, 1963 relevant for our present purpose. Both sections 53 and 61 are engrafted in Chapter VI dealing with imposition and recovery of rates at port. Section 53 empowers the Board "in special cases and for reasons to be recorded in writing exempt either wholly or partially any goods or vessels or class of goods or vessels from the payment of any rate or of any charge leviable in respect thereof according to any scale in force" under the 1963 Act "or remit the whole or any portion of such rate or charge so levied." Whereas section 61 provides that "after the expiry of two months from the time when any goods have passed into its custody" the Board may "sell by public auction such goods or so much thereof as, in the opinion of the Board may be necessary- (a) if any rates payable to the Board in respect of such goods have not been paid, or (b) if any rent payable to the Board in respect of any place on or in which such goods have been stored has not been paid, or (c) if any lien of any ship-owner for freight or other charges of which notice has been given has not been discharged and if the person claiming such lien for freight or other charge has made to the Board an application for such sale." (1) The procedure for such sale has been provided for in terms of sub-section (2) and (3), which, so far relevant for the present purpose, read thus : "(2) Before making such sale, the Board shall give ten days' notice of the same by publication thereof in the Port Gazette, or where there is no Port Gazette, in the Official Gazette and also in at least one of the principal local daily newspapers. *** **+ *** (3) If the address of the owner of the goods has been stated on the manifest of the goods or in any of the documents which have come into the hands of the Board, or is otherwise known notice shall also be given to him by letter delivered at such address, or sent by post, but the title of a bona fide purchaser of such goods shall not be invalidated by reason of the omission to send such notice, nor shall any such purchaser be bound to inquire whether such notice has been sent." The Third Point :;