Abdul Hamid Aboobakar Coatwala vs Board Of Trustees, Port Of Bom.
2003 Latest Caselaw 467 Bom

JUDGMENT

Nishita Mhatre, J.

1. By this petition, the circulars issued by Respondent No. 1 on 10-7-1985 and 12-3-1986 have been impugned. The petitioner is carrying on business as a sole proprietor and is engaged in the manufacture of shoddy yarn used for making low priced blankets for the weaker section. The petitioner claims to be an actual user and regular importer of premuti-lated woollen and synthetic rags as raw material for the shoddy yarn. Eight consignments of woollen and synthetic rags were imported by the petitioner and, accordingly, eight bills of entry were filled for clearance by the Customs authorities. The allegation of the petitioner is that because of two internal circulars, which are impugned in this petition, Respondent No. 1 is not allotting space for destuffing of all consignments of the importer together, as a

result of which demurrage charges had to be paid by the petitioner unnecessarily. The contention is that these circulars 'permit allotment of space for destuffing of only two consignments at a time for Customs examination and clearance as a result of which demurrage charges escalate and these have to be borne by the petitioner. The petitioner claims that destuffing of these eight consignments was done after much delay because no space was allotted due to several reasons which were beyond the control of the petitioner. On 5-9-1988, the petitioner made an application for remission of demurrage charges. This remission was denied to the petitioner. The petitioner based his claim on the two circulars of 9-5-1988 and 24-6-1988 issued by the Additional Docks Manager to certain authorities informing them of the decision of Respondent No. 1 to permit all uncleared consignments of woollen rags whose general landing bill was prior to 1-3-1988 to be cleared on the payment of demurrage charges at 20% of CIF value of the manifested quantity, provided the consignments were cleared within the time limit indicated in the circular. Respondent No. 1, it appears, denied this facility to the petitioner as petitioner's consignment was received much later and also cleared after 31-3-1988.

2. Being aggrieved by non-remission of demurrage charges, the petitioner filed the present petition. At the time of admission of the petition, the petitioner was directed to clear the goods by permitting destuffing within seven days. It was further directed that the petitioner would be liable to pay demurrage and other charges up to 1-10-1988. This order was challenged by the petitioner in appeal. The appellate Court while disposing of the appeal modified the order of the learned single judge and directed the petitioner to furnish a bank guarantee of a nationalized bank in a sum of Rs. 5 lakhs to the satisfaction of the prothonotary and Senior Master on or before 15-11-1988 which the petitioner has done. The petitioner was also directed to pay to Respondent No. 1 a sum of Rs. 5 lacs on or before 7-11-1988. This payment has also been made by the petitioner. A schedule was specified as to the manner in which the destuffing and the clearance of the goods of eight consignments of the petitioner was to be effected.

3. Mr. Lewis, learned Counsel for the petitioner, submits that the circulars of 10-7-1985 and 12-3-1986, which permit destuffing of only two consignments imported at a time, are without force of law as they have not been issued under any of the provisions of the Major Port Trusts Act, 1963 (for short, 'the Act'). He submits that a bare perusal of the provisions of the Act requires that any circular issued by the Bombay Port Trust is required to be published in the official gazette under Section 132 of the Act. He further urges that in view of the fact that these circulars have not been so published, they have no force of law and cannot be implemented in order to limit destuffing of only two consignments imported, at a time. He relies on the judgments in the cases of Dr. V.K. John v. G. Vasantha Pat and Anr. , Dayanand Pandurang Nerkar v. Daji Narayan Nerkar [(1926) XXVIII Bom. L.R. 1082, Bombay Education Society v. The State of Bombay [B.L.R. Vol.-51 643], Hindustan Aeronautics Ltd. v. Commissioner of Income-tax [2000 (119) E.L.T. 513 (S.C.), Visakhapatnam Port Trust and Anr. v. Ram Bahadur Thakur Pvt. Ltd. in support of his contention that a circular cannot have any legal effect unless it has been issued in accordance with law. He also submits that the notification has been issued granting remission to goods

detained by the Customs though there is no remission of demurrage charges when goods are detained if there is no space available for destuffing the contents.

4. Mr. Makhija, learned Counsel for Respondent No. 1, submits that the circulars impugned are only guidelines for implementation of the policy of the Bombay Port Trust and, therefore, there is no question of publication of the said circulars. He submits that the contents of the circulars made known to the importers and since they are not notifications, no publication is required under Section 132 of the Act. He further submits that it at all the petitioner is aggrieved with the demurrage charged, it is always open for the petitioner to file an application for exemption or remission of rates or charges under Section 53 of the Act.

5. After hearing the learned Counsel for the parties, I am of the view that the impugned circulars are merely internal memos sent for information to the authorities concerned in order to free the docks from congestion. Respondent No. 1 have through the affidavit of their Assistant Manager placed on record the dates on which the consignments were received and the date on which the applications for destuffing was made by the petitioner. It appears that the petitioner has, in respect of the first consignment which was received on 4-5-1988, made an application for destuffing on 1-8-1988 which was granted on the same day. It appears from the material placed on record that permission for destuffing has been sought much after the consignments were received and, therefore, Respondent No. 1 cannot be faulted for the delay caused or the demurrage charged to the petitioner. The so called circulars merely state the policy of Respondent No. 1 and unless the policy is shown to be illegal, unreasonable or not in keeping with the object of the Act in mind this policy cannot be questioned. In order to buttress his argument, the learned Counsel for Respondent No. 1 relies on the case of Vishwanath R. Raut & Co. v. Board of Trustees of the Port of Bombay [1994 Mh.L.J. 359] wherein it has been held that only three grounds are available for scrutiny of the policy to make it subject to judicial review namely, illegality, irrationality and procedural impropriety. The learned judge in Paragraph 16 has observed thus:

"16. Having considered the above submissions, in the light of the authorities and the provisions of law referred to above, I find that there is great substance in the contentions raised by Shri Makhija and it is not possible to accept the contentions raised by Shri Balani. In the first place, I must remind myself of the limitations on the powers of this Court in a Writ Petition of the present nature. I am not sitting in appeal over the order of suspension of the Dock Entry Permits. In the words of Lord Justice Diplock in the case of Council of Civil Service Unions v. Minister for the Civil Service reported in [1984] 3 A.I.R 935 at page 950, only three grounds have been classified as being subject to control of judicial review viz, illegality, irrationality and procedural impropriety. That the court may by inclined to take a different view or even a better view of the matter, is not a ground for entertaining a writ petition of the present nature. I cannot substitute my views for the decision taken by the authority concerned in the absence of any illegality, irrationality or procedural impropriety. I am not concerned with the decision but with the decision making process, as observed by the Supreme Court in Dwarkadas Marfatia's case (supra). It must be pointed out in fairness to Shn Balani that he did not allege any mala fides. There is no perversity alleged either. In the circumstances, there is great substance in Shri Makhija's contention that this Court has limited powers to review the decision taken by the Port Trust authorities in the facts of the present case."

6. The petitioner in this case has not been able to demonstrate that the policy of Respondent No. 1 to permit destuffing of only two consignments at a time is illegal or irrational or procedurally incorrect. The claim made by the petitioner on the basis of the circulars of 9-5-1988 and 24-6-1988 which have been annexed to the petition is unsustainable as the importers were permitted as a one time measure to clear the consignments of woollen rags whose general landing date was prior to 31-3-1988. Admittedly, this is not the case with the consignments of the petitioner. In view of this, I am unable to accept the case of the petitioner that he is entitled to remission based on the circulars of 9-5-1988 and 24-6-1988.

7. Writ petition is, accordingly, rejected.

8. However, in the circumstances of the case, the petitioner may apply for remission under Section 53 of the Act. This application will be dealt with by Respondent No. 1 as expeditiously as possible in accordance with law.

9. The learned Counsel for the petitioner prays that stay of this order may be granted for a period of eight weeks. Accordingly, the Prothono-tary and Senior Master is directed not to encash bank quarantee for a period of eight weeks. The petitioner shall keep the bank guarantee alive during this period.

10. Certified copy expedited.