Kalyan Jyoti Sengupta, J. - (1.) By this writ application, the petitioners have prayed for writ of mandamus directing the respondents to destuff two containers Nos. VMLU 330004 and VMLU 3304430 which contained 430 bags of Damarbatu weighing 30,000 Kgs and to deliver the said two containers after destuffing, refund of a sum of Rs. 1,29,267.00 realized by the Port on account of demurrage charges in relation to the said two containers and further not to charge any demurrage charges in relation to the said two containers. The short fact of the case which led to filing of this application is stated hereunder : First petitioner claims to be the agent of one M/s. Vasco Maritime Private Ltd., a Singapore based Company. This Company is a non-vessel operator container carrier. On or about 13th November, 2001, a consignment consisting of 430 bags of Damarbatu weighing as mentioned above arrived at the Port of Calcutta per vessel M.V. Cambodia Star in the above two containers. The said consignment was shipped from Djakarta by P.T. Singeri Samudera having its Office at Graha Nampan, 2nd Floor, JL Mampang, Prapatan Raya No. 100, Djakarta -12760, in favour of one M/s. Shyam Trading, the respondent No. 5. On arrival of the said goods at the port the respondent No. 5 did not clear the same under the provisions of Customs Act, 1962, nor anybody came forward to claim the ownership of said goods. As a result, the containers could not be destuffed nor the same could be removed or cleared. The petitioners made repeated representation to the Port Authority as well as the Customs Authorities for destuffing of the containers and disposal of the goods contained therein. The respondent Authorities and each of them failed and/or refused to take steps under the provision of Customs Act, Rules and regulations framed thereunder and further the Major Port Trusts Act and the rules and regulation framed thereunder.
(2.) Mr. P.K. Mallick, learned Senior Advocate, with Mr. Talukdar in support of the writ petition contends that their clients took all reasonable steps in order to ensure destuffing of the imported material from the said containers to take delivery of the said containers. Under the provisions of Sections 48 and 150 of Customs Act, 1962, the detail procedure has been laid down for dealing with the uncleared goods within 30 days from the date of unloading. The Customs Authorities should have taken steps for disposal of the same and not doing so either within 30 days or thereafter, unnecessary detention and demurrage charges have been allowed to accrue. Similarly under the provisions of Sections 61, 62 and 63 of the Major Port Trusts Act, 1963, the Port Authority after expiry of two months from the time when the goods had been placed in his custody should have taken steps for sale and/or disposal of the stuffed goods by public auction. Detailed procedure has been laid down under the said Section. It has been further contended that under the provisions of Uncleared Goods (Bill of Entry) Regulations, 1972, the Port Authority should have taken steps for entering Bill of Entry for dealing with and/or disposing of the unclaimed goods. Therefore, the petitioners are not at fault at all for destuffing of the containers as the same were lying in the custody of the Port Authority. The action taken against the petitioners by the Port Authorities is wholly illegal, arbitrary, without and/or excess of jurisdiction. Their further contention is that demurrage is chargeable in case of fault of a person responsible for clearance of goods from port area within free time. In support of their contention, they have relied on two Supreme Court decisions reported in AIR 1977 SC 1624.
(3.) The petitioner during pendency of the writ petition has filed a supplementary affidavit stating costs and expenses incurred on account of the sale of the goods in terms of the Court's order. It is said that total expenses of a sum of Rs. 54,128.00 incurred by the petitioner shall be reimbursed out of the sale proceeds being held by the Special Officer.;