1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1473 OF 2000 ... M/s.Faiz & Co. and anr. ...Petitioners v/s The Trustees of the Port of Bombay & others ...Respondents ... Mr.Mangal Bhandari with Mr.N.M.Shah for the Petitioners. Mr.V.J.Makhija with Mr.Pankaj Khandar i/b Mulla & Mulla for the Respondents Nos.1 to 3. Mr.A.M.Sethana with Mr.S.C.Pal i/b T.C.Kaushik for Respondent No.4. ... CORAM: D.K.DESHMUKH, & R.G.KETKAR, JJ DATED: 14th September, 2009 2 P.C.: 1. By this petition the Petitioner challenges the validity of the provisions of Section 63(2) of the Major Port Trusts Act, 1963. The relevant facts are that the consignment meant for the Petitioner was received by the Port Trust. The Petitioner did not clear cargo. Therefore, the Petitioner was informed that if the goods are not cleared within two months from that date the cargo will be placed in the custody of the Port Trust. It was made clear that under Sections 61 and 62 of the Major Port Trusts Act the cargo is liable to be sold by public auction. Accordingly the cargo was sold on 11-8-1997. Sub-section 2 of Section 63 of the said Act lays down that after deducting 3 expenses which are mentioned in sub-section 2 of Section 63, if there is any surplus amont then it can be refunded either to the importer or to the owner or consignee or his agent if an application is made in this behalf within six months from the date of sale of the goods. In the present case, the sale took place on 11-8-1997. An application for refund was made on 14th October, 1999 by the Petitioner. That application was rejected by communication dated 12th November, 1999, because the application was made beyond the period of six months from the date of sale. It is this communication at Exh.C whereby the Port Trust refused to refund the amount which is challenged in this petition. 2. The learned Counsel appearing for the Petitioner submitted that the period of six months which is laid down by Sub-section 2 of 4 Section 63 for consignee or owner or the importer to make an application for refund is unreasonable. He submits that an application is required to be made within a period of six months from the date of sale of goods. In case where the importer, owner or consignee does not know that the goods are to be sold or are sold and comes to know subsequently the fact of sale, he is deprived of an opportunity to make an application for refund. The learned Counsel further says that in the present case the Petitioner was not aware of the sale. When he came to know of the sale, he made an application and therefore his application should not have been rejected. 3. We have heard the learned Counsel appearing for the Respondents also. 5 4. Section 61 of the Act lays down that the Port after expiry of two months from the time when any goods have passed into its custody, unless the goods which are not perishable or hazardous, sale the goods by public auction. Sub-section 2 lays down that before making such sale the Port 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. Under sub-section 3 of Section 61, even the owner of the goods is to be served with a letter informing him about the proposed sale. Section 62 lays down that where any goods are 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 6 were placed in their custody, then the Board may, after following the same procedure as laid down in Section 61, sale the goods. 5. Thus, it is clear that when the goods are sold either under Section 61 or Section 62, they are sold by the Port after issuing public notice of the same and also after serving individual notice of sale on the owner or consignee. In the present case, the Petitioner does not challenge the sale or validity of the sale. Therefore, we have to assume that the sale of the goods was conducted as per the provisions of either Section 61 or Section 62 of the Act. Therefore, we will have to attribute the knowledge of the date of sale to the Petitioner. In the present case apart from such deemed knowledge being attributed to the Petitioner, in fact the communication dated 7 7th July, 1997 addressed by the Port Trust to the Petitioner is on record, it is stated in that letter that for failure of the Petitioner to clear the goods, the goods were placed into the custody of the Port Trust and that the Port Trust proposes to sale the goods in accordance with the provisions of Sections 61 and 62 of the Act by public auction or tender. That the goods will be sold either on 21-07-1997 or any other subsequent date. The Port has also placed on record a postal acknowledgement which shows that this communication was received by somebody on behalf of the Petitioner. In the rejoinder that is filed , though it is claimed that the communication dated 7-7-1997 was sent at a wrong address, neither inspection of the original of the acknowledge is sought nor the authenticity of the signature found on the acknowledgement is 8 disputed. In our opinion, therefore, we have to assume that the Petitioner was aware of the date of sale because of public notice published and also because of the communication dated 7th July, 1997, and therefore, he should have applied within a period of six months from the date of sale. Even assuming that the Petitioner had no knowledge and therefore he could not have applied within a period of six months of the sale, then also we see that in the application dated 14th October, 1999 the Petitioner does not state the exact date when he came to know when he became aware of the sale. He refers to a communication from Shipping Company M/s.Lloyd Triestino, but the copy of the communication is not annexed nor is it produced. In our opinion, therefore, so far as the facts are concerned,the Petitioner cannot claim that he had no knowledge of the 9 sale and therefore, the Port was perfectly justified in rejecting his application. So far as the validity of the provisions of sub- section 2 of Section 63 is concerned, in our opinion, the limitation of six months laid down also cannot be said to be unreasonable. Because, the provision is made in a scheme by the Legislature. We have to read the provisions of Sections 61, 62 and 63 of the Act together. They appear in one scheme. Several steps are to be taken in relation to the clearance of the goods, sale of the goods and for refund of the surplus amount. In our opinion, providing period of six months for making an application for refund cannot be said to be unreasonable because the sale itself is conducted after public notice in official gazette as also in newspapers and after giving notice to the owner. Six months, in our opinion, would be ample time to make 10 an application, if you know the date of the sale. Thus, we do not find that the period of six months laid down for making an application under Section 63(2) of the Act can be called unreasonable. There is no substance in the petition. Petition fails and is dismissed. Rule discharged. No order as to costs. (D.K.DESHMUKH, J.) (R.G.KETKAR, J.)