Case: Kandla Port Trust Vs. Goodrich Maritime Pvt.Ltd

the cargo. The Lines have two options. They can take back the (loaded) containers to the Port of Origin. Alternatively, the Lines can resume custody of the containers and move such containers to any outside private CFS and arrange for de-stuffing of cargo before taking back the empty container. (In such cases, the responsibilities of the Port Trust as a "bailee" will cease as soon as the Line resumes custody of the containers) there are many approved private CFSs available in the vicinity of a Port, and as per the contract carriage of goods a carrier can also dispose of the goods by auction under certain circumstances. That being so, the lines need not depend only on the ports to take action for release of the containers." Annexed hereto and marked as ANNEXURE: "R-1" is the copy of the aforesaid TAMP Order dated 28th August, 2000. It is submitted that based on the above clarification on Issue No.(V) of the TAMP Order, the KPT used to issue request letters to concerned Line Agent requesting to de-stuff long dwell containers (un-cleared containers) and release the empties. It is also further requested to de-stuff the container in the CWS-CFS and collect the empties, after complying with the required formalities as per TAMP Order dated 19.7.2000. However, in the present case, it seems that the duties on the part of the Line Agent are not performed timely and on getting pressure from their principal, the faults of their own are thrown on Port Trust. In that view of the matter, it is submitted that Bill No. 244362 dated 6.6.2006 issued on Line Agent is in order and is also in consonance with the provisions of the MPT Act." 6. The Division Bench did not avert to the counter affidavits filed on behalf of the appellant and allowed the appeals by simply making a reference to the order passed by this Court dated July 24, 2001 in Civil Appeal No.4537 of 2001 - Kutch Shipping Agency Private Limited v. Board of Trustees, Kandla Port Trust and observing that there was no reasonable basis for levy of container storage charges or ground rent because letter addressed by respondent No.1 to the Traffic Manager, Kandla Port Trust for permission to remove the containers to de-stuff the cargo was not attended by the concerned authority. 7. Shri P.H. Parekh, learned senior counsel appearing for the appellant relied upon Sections 48, 49, 59, 61 and 62 of Major Port Trusts Act, 1963 (for short, `the 1963 Act), Sections 11, 111(d) and 112 of the Customs Act, 1962 and orders dated 10.11.1999 and 19.7.2000 issued by the Tariff Authority for Major Port Trusts and argued that the Division Bench of the High Court committed serious error by quashing the demand of container storage charges and ground rent by relying upon order dated 24.7.2001 passed by this Court in Civil Appeal No. 4537 of 2001 - Kutch Shipping Agency Private Limited v. Board of Trustees, Kandla Port Trust ignoring that the containers were confiscated by the Customs officers on the ground that in the garb of Heavy Metal Scrap and Hollow Section Tubes, the consignors and consignees had tried to smuggle used and unused ammunitions in the country. Learned senior counsel submitted that there is no provision in the 1963 Act under which the appellant can de-stuff the goods which are seized/confiscated by the Customs authorities and, therefore, respondent No.1 cannot take advantage of the fact that representations made by it for release of containers after de-stuffing the goods were not entertained. 8. Learned counsel for respondent No.1 supported the impugned order and argued that the Division Bench of the High Court rightly quashed the demand for containers storage charges and ground rent because the appellant failed to take action for release of containers within a reasonable time after de-stuffing the goods. Learned counsel emphasized that respondent No.1 cannot be blamed for attempted import of war material/explosives because its functionaries had no knowledge about the clandestine operation, if any, carried out by the consignors and consignees. 9. We have considered the respective submissions and gone through the relevant statutory provisions as also the orders issued by the Tariff Authority for Major Port Trusts. Undisputedly, the special civil applications filed by respondent No.1 were summarily dismissed by the learned Single Judge without calling upon the appellant and respondent No.2 to file counter affidavits to admit or controvert the averments contained therein. This being the position, the appellant had a legitimate right to file counter affidavits in the appeals preferred by respondent No.1 and the Division Bench of the High Court was duty bound to consider the contents of the counter affidavits and then decide the issue relating to liability of respondent No.1 to pay container storage charges and ground rent in the backdrop of the fact that the containers together with their contents had been confiscated by the Customs Department on the ground that war material/explosives were smuggled in the country under the garb of importing Heavy Metal Scrap and Hollow Section Tubes. The question whether rule of not charging storage charges/ground rent for 75 days would apply if the goods are seized and later on confiscated by the Customs authorities or any other competent authority on the ground that war material/explosives were clandestinely brought in the country certainly called for serious consideration, but without examining the issue in a correct perspective the Division Bench of the High Court granted relief to respondent No.1 only on the ground that representations made by the said respondent for release of containers after de-stuffing the goods were not decided. In Kutch Shipping Agency Private Limited v. Board of Trustees, Kandla Port Trust (supra), this Court did not consider a question like the one raised in the counter affidavits filed on behalf of the appellant. Therefore, the Division Bench was not justified in relying upon the order passed in that case for the purpose of quashing the demand of container storage charges and ground rent.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]9. We have considered the respective submissions and gone through the relevant statutory provisions as also the orders issued by the Tariff Authority for Major Port Trusts. Undisputedly, the special civil applications filed by respondent No.1 were summarily dismissed by the learned Single Judge without calling upon the appellant and respondent No.2 to file counter affidavits to admit or controvert the averments contained therein. This being the position, the appellant had a legitimate right to file counter affidavits in the appeals preferred by respondent No.1 and the Division Bench of the High Court was duty bound to consider the contents of the counter affidavits and then decide the issue relating to liability of respondent No.1 to pay container storage charges and ground rent in the backdrop of the fact that the containers together with their contents had been confiscated by the Customs Department on the ground that war material/explosives were smuggled in the country under the garb of importing Heavy Metal Scrap and Hollow Section Tubes. The question whether rule of not charging storage charges/ground rent for 75 days would apply if the goods are seized and later on confiscated by the Customs authorities or any other competent authority on the ground that war material/explosives were clandestinely brought in the country certainly called for serious consideration, but without examining the issue in a correct perspective the Division Bench of the High Court granted relief to respondent No.1 only on the ground that representations made by the said respondent for release of containers afterthe goods were not decided. In Kutch Shipping Agency Private Limited v. Board of Trustees, Kandla Port Trust (supra), this Court did not consider a question like the one raised in the counter affidavits filed on behalf of the appellant. Therefore, the Division Bench was not justified in relying upon the order passed in that case for the purpose of quashing the demand of container storage charges and ground rent.