Remanded

Sakthi Shipping Logistics Private Limited and Anr. v. the Hon'Ble Lieutenant Governor and Ors.

Calcutta HC21 Nov 2022WPA/184/2021

Case brief

AI extract

What is this about?

In a challenge to impugned orders imposing demurrage charges and restricting sand removal, this court found disputed issues of fact existed regarding allocation of space, timing of requests, and calculation of dues. The court held that these factual disputes preclude decision in writ proceedings and remanded the matter to the Chief Port Administrator for a trial de novo with hearing.

What did the court decide?

The writ petition disposed by directing the Chief Port Administrator to decide the claim and counter-claim of parties by giving an opportunity of hearing within eight weeks.

Sakthi Shipping Logistics Private Limited… — Civil Procedure and Limitation | Calcutta HC (2022)

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IN THE HIGH COURT AT CALCUTTA (Circuit Bench at Port Blair)

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PRESENT:

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THE HON’BLE JUSTICE AJOY KUMAR MUKHERJEE

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WPA 184/2021

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I.A. No. CAN/2/2021, CAN/3/2021

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Sakthi Shipping Logistics Private Limited and another

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…..Petitioners

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The Hon’ble Lie	Vs. utenant Governor and ors. …….Respondents
For the Petitioners :	Mr. Gopala Binnu Kumar
For the respondents : :	Mr. Shatadru Chakraborty Mr. Ramendu Agarwal
Heard on :	25.08.2022
Judgment on :	21.11.2022

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Ajoy Kumar Mukherjee, J.

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1. The subject matter of dispute in the present writ petition relates to three consignments:-

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(i) Consignment dated 19^th December 2020 wherein 8,000 Mt silica Sand (River Sand) arrived at port Blair at Haddo Wharf in the vessel namely DANUM 101 (Tug) and Global 5 (Cargo Barge).

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(ii) Consignment dated 22^nd December 2020 where in 10,000 MT silica sand (River Sand) arrived at Port Blair at Haddo Wharf in the vessel namely DANUM 105 (Tug) and LINAU 82 (Cargo Barge).

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(iii) Consignment dated 29^th December 2020 wherein 10,000 MT silica sand (River Sand) arrived at Port Blair at Haddo Wharf in the vessel namely Glory 3 (Tug) and Mr. 3322 (Cargo Barge).

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2. Mr. Gopala Binnu Kumar, learned counsel appearing on behalf of the petitioner submits that the writ petitioner completely shifted all the sand pertaining to the consignment dated 19^th December 2020 by 7^th January 2021 and also completely removed the consignment dated 22^nd December 2020 by 11^th January 2021. On 25^th January 2021 the petitioner received a letter dated 25^th January 2021 wherein the respondent No. 6 communicated approval of allocation of open space at Haddo Wharf near Gate No. 4 for the period from 19^th December 2020 to 28^th December 2020 and from 25^th December 2020 to 3^rd January 2021 and directed the petitioner to deposit an amount of Rs. 81,420/- as rental charges pertaining to the consignment dated 19^th December 2020 and 22^nd December 2020 and on the basis of the same the petitioner company paid the license fee. Respondent No. 6 allowed to shift the river sand pertaining to consignment dated 29.12.2020. Accordingly the petitioner shifted the river sand pertaining to consignment dated 29.12.2020 and in the said process the petitioner firm has shifted 45% of the river sand pertaining to the said consignment. Now in order to shift the rest 55% of the river sand pertaining to consignment dated 29.12.2020, the petitioner company made representation on 17^th March 2021 before the respondent No. 5 seeking

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extension on temporary allocation of open space upto 31^st March 2021 which was followed by letter dated 22^nd March, 2021. On 23.03.2021 the respondent No. 6 issued the impugned letter whereby it was informed that no extension could be made in favour of the petitioner company as no space near canteen at Haddo Wharf has been allocated to the petitioner for dumping sand with effect from 30.12.2020 and further direction was made to realize the demurrage charges from the petitioner company and to effect the delivery of sand from the port area to the petitioner company, along with the impugned letter dated 23.03.2021. The respondent No.6 enclosed two vouchers bearing Voucher No. 1021 dated 23.03.2021 for payment of demurrage charges of Rs. 2,32,358/- in respect of consignment dated 22.12.2020 and voucher No. 1022 dated 23.03.2021 for payment of demurrage charges of Rs. 4,62,311/- pertaining to consignment dated 19.12.2020. After issuing said impugned letter dated 23^rd March, 2021 the petitioner company was restrained from shifting the balance 55% of river sand in respect of consignment dated 29.12.2020 from Haddo Wharf.

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3. Apart from the representations submitted by the petitioner company, on 09.04.2021 the petitioner company made a representation before the Secretary Shipping, Andaman and Nicobar Islands seeking intervene and resolve the issue with respect to payment of bills for allotment of open space at Haddo Wharf between the petitioner company and the respondent authorities. It is further submitted that the secretary shipping taken up the matter and on 12.05.2021 written a letter to the Chief Port Administrator, Port Management Board, Port Blair, contending that there is no proper procedure in PMB for

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allotment of space in port area as has been revealed and that there is a need to streamline the procedure for allotment of space by PMB in an expeditious manner to avoid recurrence of such incidents that taken place in respect of present petitioner and it was further informed in the said letter dated 12.05.2021, that PMB may initiate necessary steps to put a definite procedure in place for timely clearance in this regard. It is further submitted that subsequently on 22.04.2021 the petitioner company received another notice dated 22.04.2021 issued by the respondent No. 6 wherein it had incorporated several facts which are foreign to the facts already agitated between the parties and once again called petitioner company to settle the demurrage charges for the period from 29.12.2020 to 07.01.2021 in respect of voucher no. 1022 and from 03.01.2021 to 11.01.2021 in respect of voucher no. 1021 for an amount of Rs. 2,32,358 and Rs. 4,62,311 respectively pertaining to consignment dated 19.12.2020 and 22.12.2020 for delivery of balance consignment stacked in the Bulkyard beyond the expiry of the allotted period.

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4. Challenging the impugned letter dated 23.03.2021 and note dated 22.04.2021, the petitioner filed the present writ application on 12^th July 2021 and served the copy of writ petition to the respondents on 12^th July 2021. On 16^th July 2021 the writ petition was taken up for hearing and after hearing the learned counsel for the petitioner this Hon’ble Court passed an order whereby directed the petitioner to deposit a sum of Rs. 7,00,000/-with the respondents authorities and on such deposit being made the respondents authorities were asked to permit the petitioner to remove the 55% materials without prejudice to the right and contention of the parties. The petitioner accordingly deposited

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the said amount of Rs. 7,00,000/- to the respondent no. 6. After such order was passed by this court on 17.07.2021 the petitioner company tried to serve the copy of the order dated 16.07.2021 passed by this court to the respondents authorities but was unable to serve the same as those staff of the respondent authorities informed that the office of the respondent authorities is closed on Saturday. It appears that subsequently on the same day the respondent authorities serve a notice dated 16^th July 2021 issued by the respondents no. 6 whereby once again they called upon the petitioner to settled the demurrage charges as per the letter dated 23^rd March,2021 and also to pay further demurrage charges of 4,26,83,988/- as on 3^rd July, 2021 in respect of the materials lying in front of the canteen building at Haddo Wharf.

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5. It is submitted by Mr. Kumar that the respondent was very much aware of the fact that writ petition pertaining to the issuance of impugned letter dated 23^rd March, 2021 and notice dated 22^nd April, 2021 is the subject matter of the writ petition in which they are parties and on 16^th July, 2021 an interim order was passed in the said writ petition by this Hon’ble Court, despite of the same the respondent no. 6 issued notice dated 16^th July, 2021, during pendency of the writ petition. It is further submitted after the said order dated 16.07.2021 passed by this court, respondents authorities filed application for modification of the order dated 16.07.2021 passed by this court. The respondent filed an affidavit in opposition in the writ petition and in the said opposition they contended that they allowed company to take delivery of more than 45% of imported river sand out of consignment dated 29.12.2020 on the

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verbal appeal of the petitioner and in anticipation of payment of the applicable charges.

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6. Mr. Kumar further submitted that from the report given under the Right to Information Act, it reflects that extension of temporary allocation in open space in transit area was approved subsequently by the respondent authorities by giving post facto approval and respondents authorities for filing supplementary affidavit narrated that some criminal allegations are there for prosecuting erring officials.

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7. Mr. Binay Kumar further submits that from the information that they received under the Right to Information Act, it clearly reveals that on 29.12.2020 petitioner requested for allotment of storage space for sand w.e.f. 31.12.2020 for stacking 10,000 Metric ton of silica sand imported from Malasiya. It further reflects that the next burg schedule to arrive at Port Blair on 28.01.2021 after 29.12.2020 and there is no request for providing open space at Haddo Wharf by any other port user before 28.01.2021 which proves that the said space was allotted to the petitioner company for a period from 31.12.2020 to 01.04.2021. Furthermore before the order dated 24.03.2021 seeking demurrage charges for first and second consignment by the respondent, no notice was issued to the petitioner from 29.12.2020 to 23.03.2021. He further submits that PMB has been allocating open space to port users in past for storage of consignment of sand at Haddo Wharf on monthly basis on payment of notified licence fee and subsequently granting extension as per the requirement of the port users on payment of the extension fee and at no point of time demurrage charges has been charged for the same

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consignment stacked in the allocated area. So, demurrage charges on the consignment dated 19.12.2020 and 22.12.2020 for which allocation and charges paid by the firm, cannot be made as per the rules, and demurrage charges are levied on all goods left in the transit shed in terms of Rule 6 of “Rules and Scale of Rate for the port services” to be levied at ports of Andaman and Nicobar Islands.

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8. According to the petitioner, in the instant case space allotment was done in terms of the existing Rule and therefore no demurrage can be charged from the petitioner company by invoking Rule 6 of the said rule. Mr. Kumar further submits that after arrival of the third consignment on 29.12.2020 the petitioner company taken the delivery of the said river sand and started the process of shifting the same from Haddo Wharf and in the said process gate pass was issued by Wharf Superintendent, and with the help of gate pass petitioner company shifted the river sand from the Wharf in respect of said consignment dated 29.12.2020 and by the impugned order dated 23.03.2021 the respondent authorities directed the Superintendent Wharf, Haddo Wharf, Port Management Board to realize the demurrage charges and to effect the delivery of sand from the port area, on the basis of such order dated 23.03.2021, the petitioner company was restrained from shifting the rest 55% of river sand pertaining to the consignment dated 29.12.2020 from the Wharf.

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9. He further submits that respondents even challenged the maintainability of the writ petitioner though writ petition is even maintainable in the cases where there is an alternate statutory remedy but in the instant case even the petitioner does not have alternative remedy and by the impugned order dated

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23.03.2021 followed by subsequent orders the respondent authority has violated the fundamental rights guaranted under Article 14 and Article 19(1) (g) of the Constitution of India. Furthermore it had at no point of time before the issuance of letters/notices for payment of demurrage charges no notice was ever issued to the petitioner firm which is also violative of the principles of Natural Justice and as such the writ application is maintainable.

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10. The petitioner in support of his contention relied on

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(i) Whirlpool Corporation Vs. Registrar of Trademarks (1998) 8 SCC 1- Para 13 to 20

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(ii) Harbanslal Sahnia and another Vs. Indian Oil Corpn. Ltd and others, 2003 2 SCC 107 – Para 7

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(iii) M.P State Agro Industries Development Corpn. Ltd. And another Vs. Jahan Khan (2007) 10 SCC 88- Para 10

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(iv) Union of India Vs. Tantia Construction (p) ltd. (2011) 5 SCC 697- Para 27

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(v) Radha Krishna Industries Vs. State of Himachal Pradesh 2021 AIR(SC) 2114, 2021 (6) SCC 771, decided on 20.04.2021- Para 24 to 27

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11. Per contra it is submitted by Mr. Chakraborty on behalf the respondents counsel that against the import of 28,000 Metric Ton of river sand the petitioner has requested for allocation open space in the Bulkyard and near canteen building at Haddo Wharf for stacking of 18,000 Metric Ton only (i.e. for consignment dated 19.12.2020 and 29.12.2020) and did not make any request for any space to stack the remaining quantity of 10,000 Metric Ton.

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The writ petitioner had not applied for allocation of space for stacking of 18,000 Metric Tone of imported sand well in time to consider the allocation prior to or on the day of arrival of the vessel but had made post facto request. He further contended that the writ petitioner has submitted the requisition for allocation of space in the Bulkyard near gate No. IV at Haddo Wharf only on 29.12.2020 for the consignment of 8,000 Metric Ton arrived on 19.12.2020 without mentioning the name of the barge through which the consignment was imported which is on expiry of ten days after dumping of the sand in the Bulkyard near gate no. –IV at Haddo Wharf vide their letter dated 22.12.2020 which has been acknowledged in Port Management Board on 29.12.2020. The Consignment of 10,000 Metric ton river sand arrived on 29.12.2020, the writ petitioner had submitted their requisition for allocation of open space at Haddo Wharf near the canteen for a period of one month from 30.12.2020. Infact writ petitioner had concealed the consignment of 10,000 metric ton in connection with consignment dated 22.12.2020 and did not submit any requisition for allocation of space and had stacked the consignment without the permission of the authority. The authority examined the requisitions submitted for the consignment dated 19.12.2020 and 29.12.2020 and accorded post facto approval for allocation of 1500 square meters open space in the Bulkyard at Haddo Wharf and conveyed vide letter dated 25.01.2020 for a period of 10 days with effect from 19.12.2020 to 28.12.2020 and 25.12.2020 to 03.01.2021 subject to payment of Rs. 81,420/- to PMB within seven days i.e. by 01.02.2021 and it was further intimated that failing which, further allocation of space in favour of writ petitioner would not be considered. The petitioner failed

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to pay the charges within stipulated time and had remitted only on 09.03.2021 that too after passing several directions.

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12. Mr. Chakraborty on behalf of the respondents further submits that the writ petitioner had stacked all the three consignments at Haddo Wharf i.e. 18,000 metric ton river sand in the Bulkyard near gate no. IV and 10,000 metric ton near the canteen building at Haddo Wharf. The writ petitioner had not cleared the cargo stacked in the Bulkyard near gate no. IV at Haddo Wharf within the permitted allocation period and as such port levied the applicable demurrage charges as per their notification no. 310/2019/467 dated 29.05.2019 (Rules and scale of Rates for the port services to be levied at A & N Islands). Similarly, the writ petitioner also failed to clear the disputed consignment of imported river sand stacked near Canteen building at Haddo Wharf for Plant Quarantine and Customs Clearance and for which the demurrage charges under the said notification has been imposed. The petitioner in order to avoid the payment of demurrage charges applied for extension of the open space as at Haddo Wharf near the canteen building upto 31^st March, 2021 but the PMB authority had not allocated any space in reply to the said letter. On the contrary vide letter dated 23.03.2021, the writ petitioner was informed that no extension can be considered as no space near canteen at Haddo Wharf has been allocated for dumping/stacking of river sand imported from Malyasia with effect from 30.12.2020. Accordingly they calculated the demurrage charges for the period from 29.12.2020 to 07.01.2021 which is amounting to Rs 462311/- in connection with consignment dated 19.12.2020. Similarly in connection with consignment dated 22.12.2020 they have

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calculated demurrage charges for the period from 04.01.2021 to 11.01.2021 amounting to Rs.2,32,358/- . It is also submitted that the calculation sheet as mentioned in the affidavit-in-opposition in connection of demurrage charges for the consignment of 10,000 metric ton cargo stack in the open space near canteen building at Haddo Wharf beyond the applicable free period. The writ petitioner sent a notice on 12.04.2021 to settle the bills and also to clear the consignment stacked infront of the canteen building after making payment of the applicable charges including demurrage charges at the earliest.

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13. Mr. Chakraborty submits that this court after hearing the counsel for the writ petitioner had directed the PMB to allow the respondents to remove the materials from the premises of the Port management board but it is to mentioned that the said amount of 7,00000/- is connected with two consignments of river sand i.e. 8,000 metric ton sand in connection with consignment dated 19.12.2020 and 10,000 metric ton sand in connection with consignment dated 22.12.2020 which sand brought under said two consignments had already been removed by the writ petitioner from the port area by 11.01.2021 without making payment of the demurrage charges of Rs. 6,94,669/- and they have suppressed the said fact before the Hon’ble Court. He further submits that the writ petitioner has suppressed material fact to this Court that that the writ petitioner had kept consignment of the 10,000 metric ton of river sand brought on 29.12.2020 in the port area without paying demurrage charges to the petitioner from 05.01.2021 till date. Mr. Chakraborty further submits that after passing that order by the court, petitioner had deposited the amount of Rs.7 lakh, which is practically the due amount for the

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consignment brought on 19.12.2020 and 22.12.2020. The writ petitioner is liable to pay amount of Rs. 4,26,83,988/- to the respondents herein, as on 03.07.2021, being demurrage charges of 10,000 metric ton river sand brought by the petitioner on 29.12.2020 and which is lying in the port area on and from 30.12.2020.

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14. Now taking advantage of the order passed by this court the writ petitioner intending to take 10,000 metric ton river sand which was brought on 29.12.2020 by making payment of Rs. Only 7,00000/- but said amount as already stated are in respect of river sand 8,000 Metric Ton which was brought on 19.12.2020 and 10,000 Metric Ton river sand brought on 22.12.2020 and which have already been removed by the writ petitioner by 11.01.2021 against which PMB has raised bills voucher no. 1021-1022 dated 23.03.2021 and against which the petitioner has not paid any amount and order passed by this court is in connection with the said charges and not in connection with the 10,000 Metric Ton river sand brought by the petitioner on 29.12.2020 which is still lying in the port area.

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15. Mr. Chakraborty on behalf of the Respondents accordingly submits that it is evident that the petitioner has committed an act of fraud and misrepresentation and sought to take out the said consignment of 10,000 Metric Ton brought in by Barge MR 3322 TUG Glory 3 against alleged demurrage charges of Rs. 7,00000/- which is admittedly was not in respect of the said goods but in respect of the goods brought by the other two vessels.

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16. It is also argued on behalf of the respondents /authority that admittedly notice dated 16^th July, 2021 whereby the demurrage charges worked out to be

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of Rs. 4,26,83,988/-, have been sought to be imposed, is not the subject matter in the present writ petition. The writ petitioner is seeking to indirectly circumvent the said notice dated July, 16,2021 without appearing before the authority or challenging the notice in appropriately, instituted independent proceeding. He further submits that the petitioner has challenged the authority of the respondents about imposition of demurrage charges, but the issue as to whether demurrage charges are imposable cannot be decided in a proceeding under Article 226 of the Constitution of India and such dispute can only be resolved by leading oral and documentary evidence and it is settled principle of law that writ court ordinarily does not interfere with a show cause notice except in exceptional circumstances.

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17. He further submits that in view of the fact that petitioner having removed the goods forming subject matter of the notice and vouchers dated March, 23, 2021 and April 22, 2021 prior to the filing of the writ petition, practically nothing survives in the present writ petition and as such Mr. Chakraborty on behalf of respondents has prayed for dismissal of the writ petition for having committed alleged fraud and misrepresentation upon the court by seeking to represent that the 10,000 metric ton of river sand brought by barge MR 3322 TUG Glory 3 could be released by payment of demurrage charged vide notice dated March, 23, 2021, whereas the said notice and/or vouchers only related to the goods brought in by other two vessels . Mr. Chakraborty accordingly concluded if the petitioners are permitted to take out goods without the payment of demurrage charges, the respondents would have no security for recover of the dues payable by the petitioner. Such a situation

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would result in attaching a premium on the dishonesty of the petitioner and would be against public interest besides setting the dangerous precedent for the future.

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18. Having considered the rival contentions it is found from the record that the respondent authority claimed an amount of Rs. 4,26,83,988/- being the demurrage charges which was issued after filing of the writ petition. The claim of the petitioner is that petitioner has kept the sand in the allotted land and PMB cannot claim demurrage charges. It is also found from the record that the petitioner claimed that the petitioner submitted his request on 22.12.2020 which respondent has denied and the respondents have made out a case that the request of the petitioner was received only on 29.12.2020. After going through the record it is found that a disputed question of facts is being raised by the respective parties in the instant writ petition which cannot be decided in a writ proceeding. It is also found that the petitioner has taken a ground for not providing an opportunity of hearing to the aforesaid claim made by the respondent/authorities.

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19. In view of above this court is of the view that it would be proper to dispose of instant writ application by directing competent authority i.e. respondent no. 5 chief Port Administrator, Port Management Board, Andaman & Nicobar Islands to decide the claim and counter claim of the parties by giving an opportunity of hearing to the respective parties within a period of eight weeks from the date of communication of the order.

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20. WPA 184 of 2021 is accordingly disposed off.

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21. However there will be no order as to costs.

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Urgent photostat certified copy of this judgment, if applied for, be supplied to

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the parties upon compliance with all requisite formalities.

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(AJOY KUMAR MUKHERJEE, J.)

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