DEBANGSU BASAK,J. - (1.) The petitioner has challenged the action of the Kolkata Port Trust (KoPT) authorities in levying charges in respect of occupation of an immovable property and the ultimate auction of the property belonging to the petitioner.
(2.) Learned Advocate for the petitioner has submitted that, the petitioner as an importer had appointed the respondent no. 6 as its agent. The respondent no. 6 as the agent of the petitioner had applied to the respondent no. 1 for the space for storage of coking coal at a yard space. KoPT had permitted the petitioner to do so on the terms and conditions, noted in the grant of the permission. The petitioner had paid the rent, from time to time, fixed by KoPT. KoPT by a resolution bearing no. 89 dated August 24, 2010, had introduced encroachment charges for delayed lifting of goods beyond the period of 30 days. The petitioner was issued a notice dated August 26/27, 2010. Various correspondences had ensued between the parties. Ultimately, the petitioner not being able to clear the goods, it was put on notice by KoPT for auction sale. The petitioner had filed the instant writ petition. An interim order dated March 11, 2011 was passed, allowing the petitioner to lift the goods, by paying the entire amount claimed, subject to the result of the writ petition. The petitioner did not pay the claimed amount. The goods were ultimately sold in auction in 2014.
(3.) Learned Advocate for the petitioner has submitted that, KoPT is not entitled to charge at the rates it had levied on the petitioner. The charges are not in accordance with the rates fixed by Tariff Authority for Major Ports (TAMP). In absence of the rate being fixed by TAMP, KoPT has no jurisdiction to levy charges arbitrarily. The charges levied upon the petitioner being arbitrary, it has to be set aside. He has referred to Section 2(v) of the Major Port Trust Act, 1963 as well as Sections 49(1)(c) , 49(3) , 59(1) , 123(i) and Section 124 thereof and submitted that, the board of trustees cannot usurp the jurisdiction of TAMP. Alternatively, assuming that the KoPT authorities are entitled to levy the charges as done in the present case, then, the charges has to be conscionable. KoPT cannot misutilize its superior bargaining position to impose any charges upon the petitioner. Even in the field of contractual obligations KoPT authorities are required to act reasonably and fairly. The Court should not permit an unconscionable contract. Moreover, if the transactions between the parties are purely commercial and contractual as contended by the KoPT authorities then, the KoPT has to substantiate that, the petitioner had acknowledged the revised rates. An unilateral imposition of rent by KoPT is not binding in the contractual field. Adverting to the auction sale, learned Advocate for the petitioner has submitted that, notice of such sale was not given to the petitioner. The properties belonging to the petitioner were sold at an undervalue without disclosing its valuation. The auction sale, therefore, stands vitiated. The auction was not conducted in accordance with Section 61 of the Major Port Trust Act, 1963. In such circumstances, the reliefs sought for by the petitioner should be granted.;