The Board Of Trustees For The Port Of ... vs Swahom Shipping Services Pvt. Ltd. And ... on 12 May, 2006
21. After analyzing the Sections and the decisions cited before us we are not in a position to accept the contention of the respondent that the decision cited by the appellant has no application in the facts and circumstances of this case although Learned Counsel submitted that on 21st October, 1982 Circular was issued by the Port Trust Authorities and relied upon by the Hon'ble Division Bench in its decision dated 11th October, 2001 and the said Board Circular has been replaced by the new Circular of the Board of Trustees held on 28th August, 1991, but a copy whereof has not been furnished by the Learned Counsel on behalf of the respondent before us. Hence, we are not in a position to accept such change in the Circular as the orders so passed by the Hon'ble Division Bench and the Hon'ble Single Bench are much after the Circular tried to be relied upon by the respondent being dated 28th August, 1991. In our opinion, all the decisions cited before us by Mr. Roy Chowdhury about the Circular dated 21st October, 1982. Therefore, we cannot accept the contention that the decisions of the Hon'ble Division Bench as well as the Hon'ble Single Bench cannot be made applicable in this changed circumstances, since we feel that there is no such circumstance. We further have been able to find out from the decision cited before us that the case of the writ petitioners has already been decided on the point as to whether they are liable to make the payment as demurrage as has already been decided by the Court and therefore, order so passed by the Hon'ble First Court that the demurrage charges accrued from the date of expiry of two months till 4th April, 2003 have to be shared equally by the Port Trust Authorities and the writ petitioner is to forego 50% of the amount for the said period whereas the writ petitioner has to bear the rest. We do not find that the Port Authorities was negligent in not taking step after expiry of two months from the date of landing of the containers as contended by the Hon'ble First Court since it appears to us that in an unreported decision in Appeal No. 717 of 1991, Matter No. 3691 of 1990 (The Chairman, Calcutta Port Trust v. Star Iron Works Pvt. Limited) delivered on 18th September, 1997 since , it has been held that Section 62 of the Major Port Trust Act 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 said 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 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 of nature of the goods. Therefore, the Hon'ble Division Bench held that, the said Section cannot be equated with an absolute obligation cast upon the Board that in every case it must issue notice immediately upon expiry of one month from the date of receipt of the goods in the Port area. The Hon'ble First Court in our opinion, interpreted the Section differently and we with such interpretation accept the same following the decision of the Hon'ble Division Bench and we hold that the Port Trust is not negligent since there is no obligation cast upon it that in every case it has to act or to issue notice immediately upon the expiry of one month from the date of receipt in the Port area.