2009 Supreme(Cal) 634

IN THE HIGH COURT AT CALCUTTA (FULL BENCH)
Surinder Singh Nijjar, CJ, Indira Banerjee & Aniruddha Bose, JJ.
APL (India) Pvt. Ltd. & Ors.
vs.
Board of Trustees for the Port of Kolkata
Snow View Tea Co. (P) Ltd.
vs.
Board of Trustees for the Port of Kolkata
Balajee Enterprise & Anr.
vs.
Board of Trustees for the Port of Kolkata
W.P No. 1116 of 2008;
W.P. No. 14192(W) of 2008;
W. P. No. 1449 of 2008;
Decided On: August 20, 2009

LIEN OF THE KPT UNDER SECTION 59 OF THE MAJOR PORT TRUSTS ACT, 1963 IS LIMITED AND REFERABLE TO SPECIFIC GOODS IN RELATION TO WHICH CERTAIN SERVICES HAVE BEEN PERFORMED UNDER THE ACT. THE POWERS OF KPT UNDER SECTIONS 59 AND 61 OF MPTA WOULD HAVE NO RELATION TO THE GOODS OF A STRANGER LYING AT THE KPT PREMISES WHICH MAY BE UNDER UNAUTHORIZED OCCUPANT.

Headnote:

MAJOR PORT TRUSTS ACT - SECTION 59 - PUBLIC PREMISES (EVICTION OF UNAUTHORIZED OCCUPANTS) ACT - SECTIONS 5 AND 6 - KPT LIEN - INTERPRETATION - SCOPE AND AMBIT - THIRD PARTY GOODS - RENT DUE - PRIVITY OF CONTRACT - CONFLICTING DIVISION BENCH JUDGMENTS - REFERENCE TO LARGER BENCH - VALIDITY - PRELIMINARY OBJECTION - BINDING PRECEDENT - RATIO DECIDENDI - SINGLE JUDGE BOUND BY DIVISION BENCH JUDGMENT - CHIEF JUSTICE'S INHERENT POWER TO REFER TO LARGER BENCH - OBSERVATIONS BY FULL BENCH - DISTINCTION BETWEEN SINGLE JUDGE AND DIVISION BENCH - STAY OF OPERATION OF JUDGMENT REFUSED.

Fact of the Case:

Petitioners, liners and steamer agents of liners, engaged in the business of shipping, inter alia, of providing services and facilities like ocean freighting and logistical support to the exim trade, had entered into agreements with Reftech Container Services Pvt. Ltd. (Reftech) for storage and repair of the containers at a plot of land known as PI Plot of the Kolkata Port Trust. (KPT) at Transport Depot Road, Taratala, Calcutta. Reftech represented to the petitioners that it had a valid licence and permission to carryon business of storage of containers at the aforesaid plot from the KPT. The entire amount due to Reftech on account of ground rent and service charges has been paid. There are no dues outstanding against the petitioners. The petitioners have been using plot PI for the past 3-4 years. On 8th March, 2008 when some representatives of the petitioners had visited the plot for removing their containers, they found that the entrance gate of the plot had been locked. When Reftech was contacted it expressed its surprise and ignorance as to why the gate was locked. Subsequently, the petitioners were informed that Reftech was carrying on business from the aforesaid plot in association with Shalimar Tar Products Ltd., (hereinafter referred to 'Shalimar'). On further inquiry it transpired that KPT had instituted proceedings against Shalimar, sometime ago under the PPA. An order of eviction was passed by the Estate Officer of the KPT on 9th July, 2007 directing Shalimar to vacate the plot and to pay damages for unauthorized use and occupation of the public premises. This amount which was amounting to Rs. 2,46,64,411.00/- calculated upto 30th June, 2005 excluding interest, had accumulated to a sum of Rs. 5,98,77,564.12/- along with accrued interest calculated upto 9th September, 2008. On 01.02.2008 KPT applied for execution of the eviction order. The possession of the premises in question and the containers stacked at the plot was taken by the authorized officer on 19th February, 2008 after making inventories of materials/articles/goods lying in the plot. A notice was issued under section 6 of PPA, 1971, on 24th March, 2008 to remove or cause to be removed any property belonging to the occupant failing which it would be disposed of by public auction. Reftech made representations before the Estate Officer on 8th March, 2008 for grant of permission to remove the containers lying inside the sealed plot. The petitioners have also moved individual representations. None of the representations have been considered. The petitioners, therefore, filed the writ petition challenging the action of the KPT on various grounds.

Finding of the Court:

The lien of the KPT is limited and referable to specific goods in relation to which certain services have been performed under MPTA. This would include a general lien with regard to wharfinger charges plus demurrage. This would be on the basis of section 171 of the Indian Contract Act, 1872. The powers of KPT under sections 59 and 61 of MPTA would have no relation to the goods of a stranger lying at the KPT premises which may be under unauthorized occupant. To this extent we are unable to agree with the observations of the Division Bench in Canoro Resources Ltd. (supra).

Issues: 1. Whether section 59 of the Major Port Trusts Act, 1963, read with sections 5 and 6 of the 1971 Act confers on KPT a right of lien on, or the right to detain, seize and/or sel1 the goods of third parties, lying on the public premises, for realization of arrears of rent due from tenants, irrespective of whether the rent accrued in respect of those goods and irrespective of whether the owner of those goods had any privity of contract with KPT. 2. Whether there is a conflict between the two aforesaid Division Bench judgments of this Court.

Ratio Decidendi: 1. The lien of the KPT under section 59 of the MPTA, 1963 would only be for its rates and rents against the goods on which such rates and rents had accrued. It cannot travel to goods of a third party or even other goods of the contracting party. 2. Section 59 of the MPTA cannot be interpreted in the manner laid down by the Division Bench in the case of Canoro Resources Ltd. (supra). If such an interpretation is accepted sit would lead to an absurdity. Therefore, the earlier view has to be preferred.

Final Decision: The reference is answered accordingly. Let the writ petition be placed before the learned Single Judge for decision on merits.