The central legal point established in the judgment is the requirement of a proper show cause notice and opportunity of hearing before imposing demurrage charges, emphasizing adherence to procedural rules and the principles of natural justice.

JUDGMENT :

Jay Sengupta, J.

1. This is an application challenging an order dated 12.11.2021 passed by the Manager (Cargo Operations), Port Management Board, A & N Administration, Port Blair and for directing the respondent authority not to impose demurrage charges upon the petitioner for utilising the open space so allotted by the respondent authorities to the petitioner and its subsidiary company.

2. The writ petitioner is a company which used to stack river sand in the open space belonging to Port Management Board on the basis of allotment order issued by the Port Management Board and after paying necessary license fee. The respondent alleged that the petitioner was in unauthorised occupation of an excess area of 2922.1 Sq. Mtrs at the Junglighat terminal. Subsequent to an enquiry by the Anti Corruption Unit, the respondent authorities decided to impose demurrage charges on the writ petitioner. On 15.11.2021 the writ petitioner received an order whereby a sum of Rs.229,39,29,784/- was decided to be recovered from the writ petitioner on the ground of illegal occupation of open spaces at the Junglighat and the Haddo wharves.

3. Mrs. Anjili Nag, learned counsel appearing on behalf of the writ petitioner submitted as follows. No show cause notice was issued to the writ petitioner before passing the order dated 12.11.2021. As such, no opportunity of hearing was afforded to the writ petitioner before passing the order. As the impugned order resulted in civil consequences, an opportunity of hearing was a must. First, the notice dated 29.06.2021 issued to M/s. Fairmacs Shipping Trading Company and the reply submitted by the writ petitioner being M/s. Shipping Transport Services Private Limited on 02.07.2021 could not act as a substitute for a proper show cause notice. For one, the notice was not addressed to the writ petitioner. Secondly, the said notice was for the period of 01.02.2021 to 30.09.2021 whereas the impugned order the relevant period was from 23.06.2017 to 15.07.2021. Moreover, the authorities regularized the alleged illegal possession by imposing license fee and by receiving the said amount. Besides, the authorities did a wrong calculation for the purported demurrage charges inasmuch as the same was calculated for the entire land including the allotted land. The authorities could not claim demurrage charges in respect of any land towards which license fee had been paid by the petitioner. The calculations anyway did not have any basis. By filing an affidavit in opposition the respondent authorities clearly showed their intention of not changing their decision. Reliance was placed on the decision in Gurmej Singh Vs State of Punjab & Anr. 2009 (12) SCC 440, H.L. Trehan Vs. Union of India 1989 (1) SCC 764, Shekhar Ghosh Vs Union of India & Anr. 2007 (1) SCC 331, Rajesh Kumar & Ors. Vs. D.C.I.T. & Ors. AIR 2007 SC 181, Gajraj Singh Vs State of U.P. and others Writ petition No. 981 of 2005.

4. Mr. S. Chakraborty appearing with Mr. R. Agarwal represented the respondent authorities and submitted as follows. The writ petition suffered from procedural defects. First, it was filed on the strength of an affidavit affirmed by a person who claimed to be the power of attorney of the Managing Director of the petitioner company. The power of attorney itself did not authorise the filing of the application before this Court. Although the defect was sought to be rectified by filing a supplementary affidavit on 13.12.2021, the same could not be cured retrospectively. On merits, it was an admitted case that the Port authority was the sole arbitrar for calculation of demurrage charges. Indisputably, the demurrage charges were calculated in the instant case as per the rates specified by the statute. Interest was also accordingly charged. The status of the petitioners as unauthorised occupants stood admitted by virtue of the petitioner comply with the notice dated 21.06.2021 asking the petitioner to make payment for occupation charges. A demand not