Case: V.M. Salgaocar &amp; Bros Vs. Board Of Trustees Of Port Of Mormugao

3. Loading operation in relation to iron ore at Mormugao Port was sought to be regulated by the Mormugao Port (Shipment of Ore and Pellets from Mechanised Ore Handling Plant at berth no. 9 and related matters) Regulations, 1979). Respondent No.1 - The Board of the Trustees of Mormugao (hereinafter referred to as the Board) was empowered to divide the storage area into plots of a size sufficient to hold approximately the quantity required to be loaded and to stipulate minimum tonnage turn over for each plot to qualify for allotment of plot The appellant who is engaged in exporting iron ore were also allotted one such plot. Rates were prescribed per tonne of iron ore, handled through Mechanised Ore Handling Plan (MOPH) and revised from time to time. By a notification dated 26th October, 1983, the Board increased the handling rate to Rs. 28.22 per tonne and fixed minimum rental surcharge of Rs. 8.80 per tonne. The Board did this to ensure proper utilisation of berth and MOPH as it was found that there was under utilisation of the same by exporters. The justification for imposing the surcharge of Rs. 8.80 per tonne was that the Board had to pay Rs. 260.30 lakhs to the contractors for dredging a channel and widening the channel, so that all sea going vessels could use berth no. 9. It is further the Boards case that Rs. 7.16 lakhs towards income tax and Rs. 20.00 lakhs towards estimated liability arising out of the contract labour legislation had to be disbursed. As the Board had incurred heavy losses on account of level of utilisation of MOPH between Rs. 55.00 lakhs tonnes to 60.00, surcharge was introduced, which surcharge was to be reduced in proportion to the tonnage exported by the exporters. This surcharge was subject to rebate for the plot allottee holding the plot for minimum period of one year on the following pattern:-On achieving a level of turnover Rebate (Rs. Per Tonne)6.25 times of nominal plot capacity 1.006.50 times of nominal plot capacity 2.006.75 times of nominal plot capacity 3.007.00 times of nominal plot capacity 4.007.25 times of nominal plot capacity 5.207.20 times of nominal plot capacity 6.407.75 times of nominal plot capacity 7.608.00 times of nominal plot capacity 8.804. Appellant had challenged the levy of surcharge of Rs. 8.80 per tonne being illegal, without jurisdiction null and void as it was not co-related to any service rendered by the Board and that the levy was falling outside the purview of Section 48 of the Act. The High Court rejected the said challenge relying upon a judgment of this Court in M/s. V.S. Dempo & Co. Pvt. Ltd. vs. Board of Trustees and Another (1994 Suppl. (2) SCC 349) . An exporter had earlier challenged the levy of surcharge with graded system of rebates in a writ petition before the High Court. The writ petition was dismissed and the order of the High Court was upheld in appeal filed by the writ petitioner. In view of the fact that the power to levy surcharge had already been upheld by this Court the counsel for the appellant did not argue this point before us.5. Appellants case further is that in the event the validity of levy of surcharge is upheld, the action of the Board for refusing full rebate to the appellant and in collecting surcharge of Rs. 7.80 is illegal, arbitrary, unreasonable, contrary to the Act and Rules and Regulations as well as Article 14 of the Constitution on the ground that the surcharge of Rs. 7.80 per tonne has been levied without taking into consideration lapses on the part of the Board as well as non-consideration of shortfall in export of the appellants due to the factors beyond their control. The appellant had also raised dispute relating to the extent of alleged storage plot and the turnover required to be achieved by the appellant during the year to be eligible for full rebate under Notification dated 26th October, 1983. According to the appellant it was entitled to the full rebate on 8,66,192 metric tonnes. The lapses pointed out on the part of the Board were stated to be failure to its obligation by providing barge unloaders to the appellant, commensurate with the appellants export commitments, insufficient barge allocation, break-down of reclaimer no.2, port and dock workers strike etc. According to the appellant, considering the plot capacity of 1,08,274 tonnes, the turnover of 8,66,192 metric tonnes would entitle the appellant a full rebate at the rate of Rs. 8.80 per tonne which comes to Rs. 62,46,548.10 paise, instead of Rs. 7,09,835/- which the Board had agreed to pay. As per appellant, it had in fact exported through berth no. 9, 10,52,910 tonnes and even if nominal capacity of the plot was taken as 1,50,000 tonnes, the appellant would be entitled for full rebate at the rate of Rs. 8,80 per tonne, having turned over its plot of 1,50,000 tonnes. This calculation was based upon the appellants plea that they must be deemed to have exported through berth no. 9, 3,14,000 tonnes, which the appellant was prevented from loading through berth no. 9 due to insufficient barge allocations, break-down of reclaimer no.2 and port and dock workers strike, which amounted to 90,000 tonnes, 70,000 tonnes and 1,54,000 tonnes respectively, thus totalling 3,14,000 tonnes. Alternatively, the appellant claim that the Board had committed breach of statutory duty by failing to provide adequate barrage unloading timings as prescribed by the regulations and by refusing to permit them to load its vessels by trans shippers when the reclaimer of the Board was broken down.6. Another challenge put by the appellant was that, the suit against Central Government or the State Government could be filed within 3 years after giving notice under Section 80 of Code of Civil Procedure. The provision of shorter period of limitation of 6 months under Section 120 of the Act to the Board and its officers who are performing duties and functions similar to the Union and the State Government was irrational, unreasonable and unrelated to the object sought to be achieved by the Act and as such, Section 120 of the Act was unconstitutional and violative of the fundamental rights guaranteed by Article 14 of the Constitution. It was further pleaded that in case the Court finds that Section 120 of the Act was valid, letter dated 12th April, 1984 addressed by it to be defendant Board, be treated as notice under Section 120 of the Act. In short, the appellant prayed for a declaration that the minimum rental surcharge levied by Notification dated 26th October, 1983 bearing No. 3-GA(8)/83 issued by the Board be declared as illegal, unconstitutional, null and void; to declare the recovery to the tune of Rs. 62,46,548.10 paise as illegal being unconstitutional, null and void; and to pay damages / compensation being equivalent to full rebate aggregating to the sum of Rs. 62,46,548.10 paise and to declare Section 120 of the Act as unconstitutional, null and void.7. Another fact which needs to be mentioned is that the Board had admitted in their letter dated 6th April, 1984 that the appellant was entitled to receive rebate of Rs. 7,09,835/- as the appellant had turned over the plot for 6.39 times and were ready and willing to pay over the said amount of Rs. 7,09,835/- to appellant. In view of the admission made by the Board, the appellant sought judgment on admission for the said sum of Rs. 7,09,835/- under Order 12, Rule 6 of C.P.C. The Board in its reply to the application under Order 12, Rule 6 stated that the Board had no objection to the passing of a decree for Rs. 7,09,835/- in favour of the appellant but objected to the payment of 18% interest on the said amount with effect from 6.4.84. In this view of the matter, by judgment on admission under Order 12, Rule 6 C.P.C. dated 12.8.87 the appellants claim to the tune of Rs. 7,09,835/- was decreed. The question of payment of interest and costs was left to be decided at the time of final disposal of the suit.8. The Board in its defence took up the plea that the appellant had achieved turnover of only 6.25 times the nominal capacity of the plot and was entitled to the rebate of only Re. 1/- per tonne and that the surcharge of Rs. 7.80 per tonne was neither illegal nor unconstitutional. The allegations relating to deemed export claimed by the appellant, was denied. It was pleaded that since no notice under Section 120 of the Act had been given by the appellant to the Board the suit was not maintainable. It was further pleaded that the suit which had been filed beyond the period of 6 months from the date of accrual of cause of action, was barred by limitation permitted under Section 120 of the Act.

Reasoning:
We do not think this view taken by the High Court can be sustained. In the first place, it is elementary that waiver is a question of fact and it must be properly pleaded and proved. No plea of waiver can be allowed to be raised unless it is pleaded and the factual foundation for it is laid in the pleadings. Here it was common ground that the plea of waiver was not taken by the State Government in the affidavit filed on its behalf in reply to the writ petition, nor was it indicated even vaguely in such affidavit. It was raised for the first time at the hearing of the writ petition. That was clearly impermissible without an amendment of the affidavit in reply or a supplementary affidavit raising such plea. If waiver were properly pleaded in the affidavit in reply, the appellant would have had an opportunity of placing on record facts showing why and in what circumstances the appellant came to address the letter dated June 25, 1970 and establishing that on these facts there was no waiver by the appellant of its right to exemption under the assurance given by respondent 4. But in the absence of such pleading in the affidavit in reply, this opportunity was denied to the appellant. It was, therefore, not right for the High Court to have allowed the plea of waiver to be raised against the appellant and that plea should have been rejected in limine.In the present case, plea of waiver had neither been taken in the original plaint nor in the amended plaint which was amended subsequent to the passing of the decree on admission for the sum of Rs. 7,09,835/- nor even in the grounds of appeal before the High Court. Question of waiver is not a pure question of law which could be permitted to be raised by the appellant at any stage of the proceedings. The High Court was right in observing that the plea of limitation put up by the Board has to be examined on its own merit. We do not find any merit in the submission of the learned senior counsel appearing for the appellant that the suit having been partly decreed on admission, could not subsequently be dismissed on the ground of limitation for the remainingagree with the observations made by the Division Bench in the said case that merely because a statute not dealing with the limitation in general prescribed period of limitation different from the one in the Indian Limitation Act, 1963 it does not follow that the provisions prescribing the said period of limitation violates Article 14 or 19(1)(f) of the Constitution ofdo not find any merit in this submission. It is well settled that although limitation being intended for quieting title and in the sense looks at the problems from the point of view of the defendant with a view to provide him security against the stale claims, addresses itself at the same time also to the position of the plaintiff. The legislature in its wisdom can make separate provision within which a suit must be filed by the individual from that within which a suit can be filed by a statutory body.