- (1.) The Court: The point of controversy involved in this appeal lies in a very short and narrow compass. A consignment of goods belonging to the respondent/writ petitioner was received, after import in the area of the Calcutta Port Trust on 2nd May, 1990. Till 19th November, 1990 these goods were not removed from the custody of the Calcutta Port Trust. The case of the respondent/writ petitioner is that it had no knowledge about the arrival of the goods on 2nd May, 1990 and that it was only on 29th October, 1990, for the very first time, that it became aware about the arrival of these goods through a notice issued by the Customs Authorities. The writ petitioner/respondent made a representation under section 53 of the Major Port Trusts Act, 1963 for exemption and waiver of the demurrage charges which in the meanwhile had amounted to more than Rs. 11 lacs. Since no relief was given to the petitioner, he filed a writ application in this court under Article 226 of the Constitution. The learned single Judge vide the Judgment under appeal passed on 30th September, 1991 allowed the writ application of the respondent/writ petitioner and directed that he was liable to pay only demurrage charges for 30 days from the date of arrival of the goods in the Port of Calcutta.
(2.) The only ground on which the learned single Judge has held that the liability of the respondent was confined to 30 days on demurrage charges is the interpretation put by him upon section 62 of the Major Port Trusts Act, 1963. Section 62 reads thus:- "62. Disposal of goods not removed from premises of Board within time limit- (1)Notwithstanding anything contained in this Act, where any goods placed in the custody of the Board upon the landing thereof are not removed by the owner or other person entitled thereto from the premises of the Board within one month from the date on which such goods were placed in their custody, the Board may, if the address of such owner or person is known, cause a notice to be served upon him by letter delivered at such address or sent by post, or if the notice cannot be so served upon him or his address is not known, cause a notice to be published 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, requiring him to remove the goods forthwith and stating that in default of compliance therewith the goods are liable to be sold by public auction or by tender, private agreement or in any other manner; Provided that where all the rates and charges payable under this Act in respect of any such goods have been paid, no notice of removal shall be so served or published under this sub-section unless two months have expired from the date on which the goods were placed in the custody of the Board. (2)The notice referred to in sub-section (1) may also be served on the agents of the vessel by with such goods were landed. (3)If such owner or person does not comply with the requisition in the notice served upon him or published under sub-section (1), the Board may, at any time after the expiration of two months from the date on which such goods were placed in its custody, sell the goods by public auction after giving notice of the sale in the manner specified in sub-section (2) and (3) of section 61. (4)Notwithstanding anything contained in sub-section (1) or sub-section (3)- (a)The Board may, in the case of animals and perishable or hazardous goods, give notice of removal of such goods although the period of one month or, as the case may be, of two months specified in sub-section (1) has not expired or give such shorter notice of sale and in such manner as, in the opinion of the Board, the urgency of the case requires; (b)arms and ammunition and controlled goods may be sold in accordance with the provisions of sub-section(4) of section 61. (5)The Central Government may, if it deems necessary so to do in the public interest, by notification in the official Gazette, exempt any goods or classes of goods from the operation of this section"
(3.) The learned single Judge has taken the view that the expression "the Board may ?? cause a notice to be served" occurring in sub-section(1) of the section 62 of the Act casts an obligation upon the Board in every case to take steps for removal of the goods from the Port area immediately after the expiry of one month from the date these are received and placed in the custody of the Board, and thus correspondingly also issue a notice to the owner of the goods for their removal from the Port area. On carefully going-through section 62 of the Act we find that the true intent and meaning which can be assigned to the expression "the Board may ?? cause a notice to be served" occurring in sub-section (1) of section 62 of the Act, in the context in which it is used by the legislature, is that it is for the Board in a given set of circumstances and in a particular fact situation, to take a decision whether, immediately after the expiry of one month of the arrival of the goods in the Port area, these are required to be removed by the owner of the goods and therefore to achieve this purpose, cause a notice to be served upon such owner asking him to remove the goods from the Port area. The aforesaid expression does not cast any obligation upon the Board, in every case, in all circumstances, and in all fact situations, to every time issue a notice to every owner of the goods to remove the goods after the expiry of one month period from the date of their receipt in the Port area. The section is only an enabling provision. It merely permits the Board, in its discretion, in a particular fact situation and in a set of circumstances, to decide whether the goods received in the port area should or should not be removed immediately after the expiry of one month. The section does not say that in every case the goods must be removed after one month. It is only in some conditions that the Board may have to take a decision that the goods are required to be removed The basis for taking such a decision can be for a variety of reasons, such as the lack of space in the port area, some unforeseen eventuality, some emergency or the quality and nature of the goods. There can be goods which do not permit being stored in the port area for longer periods. There can be hazardous goods which are not to be stored, kept in the port area for longer periods. There can be goods which cause pollution or which cause other environmental or ecological problems if they are kept for longer periods. So, therefore, it is for the Board to decide if the goods are to be kept or should they be removed and only in a case where the Board takes a decision that the goods are to be removed, it may issued a notice under section 62 of the Act to the importer. This surely cannot be equated with an absolute obligation cast upon the Board that in every case it must issue that notice immediately upon expiry of one month from the date of receipt of the goods in the port area.;