Union of India v. Hariram Shamji Thakkar — 1968 DIGILAW 35 (SC)

JUDGMENT : Shah, J. 1. These two appeals arise out of the judgment of the Bombay High Court confirming the order of K.K. Desai, J., in Writ Petition No. 252 of 1966 filed by Hariram Shamji Thakkar. 2. The Board of Trustees of the Port of Bombay are constituted under the Bombay Port Trust Act, 1879, a body corporate with perpetual succession and common seal, and are invested with the duty to carry out the provisions of the Act subject of conditions and limitations set out therein. The Board is invested with the power to levy tolls, dues, rents, rates and charges, inter alia, for the landing, shipping, wharfage, cranage, storage and demurrage of goods. Section 64-A of the Act provides that if any goods placed in the custody of the Board upon the landing thereof are not removed by the owner or other person entitled thereto from the premises of the Board within one month from the date on which such goods were placed in their custody, the Board may, after notice to the owner, require him to remove the goods forth with, and in default of compliance may, after the expiration of one month from the date of service of the notice, sell the goods by public auction after giving notice of the sale in the manner prescribed. Section 48 of the Customs Act 52 of 1962 provides that if any goods brought into India from a place outside India are not cleared for home consumption or warehoused or transshipped within two months from the date of unloading at a customs station, such goods may, after notice to the importer and with the permission of the proper officer be sold by the person having custody thereof. 3. A large quantity of merchandise unloaded in the Port of Bombay which "could not be connected with invoices and manifests" was lying in the storage yard of the Port Trust. These goods were liable to duty leviable under the Customs Act, 1962, and were also liable to pay the port trust charges. Early in 1966 the Port Trust authorities opened correspondence with the Collector of Customs for obtaining sanction to sell the goods and in anticipation of sanction advertised the goods for sale by public auction by a notice dated April 30, 1966. In the Auction Notice Lots Nos. Early in 1966 the Port Trust authorities opened correspondence with the Collector of Customs for obtaining sanction to sell the goods and in anticipation of sanction advertised the goods for sale by public auction by a notice dated April 30, 1966. In the Auction Notice Lots Nos. 156 and 157 were described as follows: "Unconnected Cargoeslying at Frere Basin 156. 1000 tons (Approx.) Scrap Unserviceable (Wt. to be ascertained at the time of delivery). 157. 1000 tons (Approx.) Scrap Re-rollable (Wt. to be ascertained at the time of delivery)." On May 3, 1966, K.J. Raman, Assistant Collector of Customs issued the following order: "Insofar as no evidence has been produced to this Customs House to show that the goods specified in the schedule to this order which have been shown in the Bombay Port Trust sale list for auction sale to be held on 3rd May, 1966 at 2 p.m. were imported in accordance with the Import Control Regulations, the said goods have become liable to confiscation under Section 111 of the Customs Act of 1952 read with Section 3(2) of the Imports and Exports (Control) Act of 1947. I, therefore, hereby impose a fine in lieu of such confiscation in respect of these items as per particulars given in the said schedule to this order." Items 75 and 76 in the Schedule to that order were described as unconnected cargo-Lots Nos. 156 and 157 "scrap": "the estimated value Rs. 300 per ton," and "fine Rs. I, therefore, hereby impose a fine in lieu of such confiscation in respect of these items as per particulars given in the said schedule to this order." Items 75 and 76 in the Schedule to that order were described as unconnected cargo-Lots Nos. 156 and 157 "scrap": "the estimated value Rs. 300 per ton," and "fine Rs. 150 per ton." Simultaneously there with another order was issued by the Assistant Collector of Customs which recited that the Customs House had no objection to the removal of the goods mentioned in the sale list which were due to be auctioned under Section 64-A of the Bombay Port Trust Act provided that the Bombay Port Trust guaranteed payment of the customs duty chargeable and the fine imposed, if any, under the order; that the particulars of the duty chargeable and the fine recoverable were entered in the copy of the "sale list" which was returned, and that "if after the issue of the above mentioned order any importers have had their bills of entry passed by the Customs House for the clearance of the goods mentioned in the order then pending the revision of the said order in respect of such goods it may be deemed by the Port Trust as not applicable to the good in question". 4. The auction notice set out the general conditions of the auction. Purchaser of each lot had to pay the amount of earnest money graded according to the value of the goods. By clause 7 of the conditions it was provided that if the purchaser fails to pay the earnest money or the full purchase price required, after the lot is knocked down to him, the bid shall forthwith be cancelled and the lot reauctioned on account and at the risk of the defaulting purchaser who shall be responsible for the deficit if any in the price. Condition 12 stated that the goods shall lie at the sole risk and responsibility of the purchaser in all respects from the time of the sale and must be removed by the purchaser within the prescribed period. In respect of Lots Nos. 156 and 157 certain "Special Conditions" were published by the auctioneers. By Condition 3 it was provided that the purchaser will have to "take delivery under customs supervision", and Condition 4 provided that: "Melting and rerollable scrap will not include the following: (i) Gas Cylinder. In respect of Lots Nos. 156 and 157 certain "Special Conditions" were published by the auctioneers. By Condition 3 it was provided that the purchaser will have to "take delivery under customs supervision", and Condition 4 provided that: "Melting and rerollable scrap will not include the following: (i) Gas Cylinder. (ii) Motor vehicle parts viz. axle, shaft, gear-box, wheels, wheel centre etc. (iii) Tin plates. (iv) Boiler tubes, pipes and tubes. (v) Channels. (vi) Tractor chains and tractor parts, (vii) Structural materials such as channels etc. (viii) Drums in good condition, (ix) Stainless steel tubes, bars, sheets etc. (x) Machinery parts. (xi) Buoys and other materials belonging to the Controller of Stores, B.P.T. (xii) Anchor, chain etc." A copy of these conditions was sent to the Assistant Collector of Customs and he was requested to ensure that the necessary Custom Staff was posted at such points as he may deem fit following the date of sale. 5. At the time fixed for auction of the goods a large number of bidders were present. Some bidders asked for clarification about the goods excluded from the auction by the Special Conditions, especially items such as rails, wires, sheets and plates. N.M. Gandhi the auctioneer's representative announced that "melting" and "re-rollable" scrap will include "all materials which fell within the general description of goods announced including rails, wires, sheets and plates and will be available to the successful bidder for delivery". There was also some discussion about the total quantity of scrap which may be available for sale under Lots Nos. 156 and 157. Gandhi announced that as the weight of those lots was not ascertained and the Supervising Officers also had no definite information about the quantity of goods comprised in those lots, particularly after the exclusion of the various items and materials not forming part of those lots, it was decided that the deposit will be collected for only 500 metric tons at the time of auction sale and delivery order will be issued for 400 metric tons in the first instance keeping the value of 100 metric tons in deposit, until a true estimate of the weight of the goods in the lots available for sale was made. It also appeared that Lots Nos. It also appeared that Lots Nos. 156 and 157 could not be sold separately because the lots were mixed up and were lying in a heap at one spot at the Frere Basin. 6. At the auction for Lots Nos. 156 and 157 the bid offered by Hariram Shamji Thakkar hereinafter referred to as "petitioner" of Rs. 421 per ton was accepted, and pursuant thereto he deposited Rs. 1,72,400 being the value of 400 metric tons and "town duty", and Rs. 42,100 being the value of 100 tons which was to be kept as deposit until completion of the delivery of the goods sold. Between May 21 and 31, 1966 the petitioner took delivery of 400.980 tons under the supervision of the officers of the Port Trust and the Customs Department. The petitioner thereafter deposited another amount of Rs. 42,100 and on June 1, 1966, commenced loading the goods out of the two lots. But under an order made by the Deputy Manager, Princess and Victoria Docks he was prevented from removing the goods. On June 2, 1966, the petitioner's advocate addressed a letter to the trustees of the Port Trust protesting against obstruction to the removal of the goods purchased by the petitioner. On June 7, 1966, the Assistant Collector of Customs, Special Investigation Branch, Appraising Department, issued the following order: "Whereas there are reasons to believe that the goods such as round bars, billete, shaftings, prime quality, lying at the open plot of land adjoining the plot of Messrs Mahendra and Mahendra Ltd. at Tile Bunder and belonging to Shri Hariram S. Thakkar of Messrs. Velhari Steel Industries, Bombay, are liable to confiscation under Section 111 of the Customs Act, 1962. Now, therefore, in exercise of the powers vested in me by Section 110(1) of the Customs Act, 1962, I seize the said goods and order the owner thereof not to remove, part with or otherwise deal with the said goods except with the previous permission of the undersigned." On June 8, 1966, the Appraiser, Special Investigation Branch, issued a summons, under Section 108 of the Customs Act, 1962, requiring the petitioner to appear in person before the Special Investigation Branch of the Customs House with certain documents. 7. 7. The petitioner then preferred on June 9, 1966 a petition in the High Court of Judicature at Bombay on its original side challenging the action of the Docks Manager, Princess and Victoria Docks, stopping delivery of goods sold to the petitioner, and also the order of the Assistant Collector of Customs, Special Investigation Branch, dated June 7, 1966. The Court on June 16, 1966, ordered that inventory be made in the presence of the representatives of the petitioner, Customs and the Port Trust Authorities of 100 tons out of 400 tons of goods delivered to the petitioner, and of goods out of Lots Nos. 156 and 157 lying at Frere Basin. By another order, the Court Receiver was appointed to "demarcate the location in Frere Basin where Lots Nos. 156 and 157 were lying" and to submit his report. The Receiver reported that the parties were not agreed about the location of Lots 156 and 157. According to the petitioner Lot No. 156 "was lying at a place which was demarcated in lines marked out in white paint", and Lot No. 157 was lying "around the Sheds Nos. 1, 2 and 3 (excluding the packed cases and drums lying in the said location) and near the latrine at the Main Gate". According to the representatives of the Port Trust and the Customs Department the two Lots Nos. 156 and 157 were lying within the area marked out in white paint. The Receiver "demarcated the location of Lot No. 157" as shown by the petitioner in red paint. It is common ground that the total quantity of scrap within the area marked in white paint was 632 tons. 8. 156 and 157 were lying within the area marked out in white paint. The Receiver "demarcated the location of Lot No. 157" as shown by the petitioner in red paint. It is common ground that the total quantity of scrap within the area marked in white paint was 632 tons. 8. At the trial of the petition it was contended on behalf of the Union of India and the Port Trust that goods permitted to be sold by order of the Customs Authorities and the goods agreed to be sold by the Port Trust authorities consisted only of "melting and re-rollable" scrap lying at Frere Basin and did not include "prime quality goods", and no permission was or could be granted to the petitioner for removing "prime quality goods" from the Frere Basin; that 400 tons which were delivered to the petitioner between May 21 and 31, 1966 included "prime quality goods" and since no permission for removal of "prime quality goods" had been granted, the Customs Officer who issued the order on June 7, 1966, had reasonable grounds to come to the conclusion that "prime quality goods" delivered to the petitioner were "offending goods liable to be confiscated" and accordingly in exercise of the power under with Section 111 of the Customs Act he issued the impugned order for seizing the goods delivered to the petitioner and lying in his warehouse; that "prime quality goods" were delivered to the petitioner by mistake and the officers who supervised delivery of the goods had no power to assent to or permit removal of those goods as scrap from the Customs area. 9. The principal issue in controversy between the parties was whether at the auction sale it was intended to sell out of Lots Nos. 156 and 157 in the auctioneer's list only goods which would commercially be known as scrap and that "prime quality goods" were not intended nor offered to be sold. The petitioner contended that he purchased the two Lots 156 and 157 excluding therefrom only 12 items of goods mentioned in Special Condition 4. On behalf of the Customs and Port Trust authorities it was contended that "prime quality goods" out of Lots Nos. 156 and 157 were not intended to be sold and were not offered to be sold and it was so made clear to all the intending bidders. On behalf of the Customs and Port Trust authorities it was contended that "prime quality goods" out of Lots Nos. 156 and 157 were not intended to be sold and were not offered to be sold and it was so made clear to all the intending bidders. The parties to the petition filed affidavits in support of their respective cases. No request was made before the learned Trial Judge that either party desired to cross-examine the persons who had filed the affidavits in support of the respective claims of the parties. K.K. Desai, J., held that the only goods excluded at the auction from the description of Lots Nos. 156 and 157 were those described in Condition 4 of the Special Conditions and that there was no other reservation or exclusion in respect of "prime quality goods", and that permission for sale of all goods except those specified in Condition 4 of the Special Conditions was granted. With that view, the High Court in appeal agreed. The High Court held that the order passed by the Customs Officer on June 7, 1966, seizing the goods of which delivery was given to the petitioner was unauthorised, and the action of the Port Trust authorities in obstructing removal of the goods purchased by the petitioner from the Frere Basin was contrary to law. 10. It is necessary to determine in the first instance whether the Customs Authorities had sanctioned sale of the entire contents of Lots Nos. 156 and 157 in the auctioneer's list. The Assistant Collector of Customs had by his letter dated May 3, 1966, imposed fine in respect of Items 156 and 157 mentioned in the Schedule. The Assistant Collector sanctioned sale of goods in the Schedule described as "unconnected cargoes lying at Frere Basin Item 156 1000 tons (Approx.) scrap unserviceable and Item 157 1000 tons (Approx.) scrap re-rollable". The order does not evidence an intention to exclude from the sanction given by him for sale, the goods which have been later called "prime quality goods". In terms, the order refers to the goods specified in the Schedule to the order as having become liable to confiscation under Section 111 of the Customs Act of 1962 read with Section 3(2) of the Imports & Exports (Control) Act of 1947, and on that account subject to payment of fine in lieu of confiscation. In terms, the order refers to the goods specified in the Schedule to the order as having become liable to confiscation under Section 111 of the Customs Act of 1962 read with Section 3(2) of the Imports & Exports (Control) Act of 1947, and on that account subject to payment of fine in lieu of confiscation. In the supplementary order it was recorded that if after the issue of the order, any importers had their bills of entry passed by the Customs House for clearance of the goods mentioned in the order, then pending the revision of the said order, in respect of such goods the sanction may be deemed by the Port Trust as not applicable to the goods in question. It is clear that when it was intended that the sanction was not to operate in respect of certain classes of goods an express order in that behalf was made. The order refers to the Bombay Port Trust "sale list" for auction which was submitted to the Assistant Collector of Customs. A copy of that "sale list" was apparently returned to the Port Trust. Neither the "sale list" nor its copy has been produced, on the plea that the auctioneer's list alone was submitted to the Assistant Collector, but for that, in our judgment, there is no warrant. There was correspondence between the Port Trust and the Customs Authorities lasting over several months in connection with the proposed sale by the Port Trust authorities of the unclaimed goods. Evidently a separate schedule consisting of 76 items was prepared: Lots Nos. 156 and 157 in the auctioneer's list are Items Nos. 75 and 76 in the Schedule to the order of the Assistant Collector. The principle on which the Schedule was prepared is not explained. The correspondence with the Port Trust authorities which might have thrown some light on this question has also not been produced. There is nothing in the order or in any other record which indicates that apart from what was reserved for sale by the supplementary order dated May 3, 1966, was intended to be excluded from sale out of Lots Nos. 156 and 157. There is nothing in the order or in any other record which indicates that apart from what was reserved for sale by the supplementary order dated May 3, 1966, was intended to be excluded from sale out of Lots Nos. 156 and 157. It is a matter of regret that in a case in which sale of property of considerable value was involved, the officer who passed the order did not swear an affidavit that he intended to and did in fact sanction sale only of a part of the goods to be put up for sale under the description of Lots 156 and 157. One Kalyanpur Rao, Assistant Collector of Customs, Investigation Branch, Bombay, who had no personal knowledge about the goods sanctioned for sale has filed, on behalf of the Customs Department, an affidavit on "the basis of information obtained from records in the office of the Customs Department and from the various persons mentioned". His assertion that "from the outset it was never the intention to auction any goods other than melting and re-rollable scrap in Lots Nos. 156 and 157" has no evidentiary value. In the auctioneer's list Lot 156 is referred to as "scrap unserviceable" and Lot No. 157 as "scrap re-rollable". There is nothing in the list or in the conditions on the basis of which bids were offered which excludes any "prime quality goods". It is to be noticed that the Customs Officers were present at the time of delivery of 400 metric tons of goods to the petitioner, and no objection was raised by them to the delivery of any part of those goods. Under Section 47 of the Customs Act goods entering for income consumption not being prohibited goods can only be cleared if the "proper officer" makes an order permitting clearance of the goods for home consumption. An objection was raised before the High Court that the Officer who was present at time of clearance of the goods was not a "proper officer" within the meaning of Section 47 of the Customs Act. The High Court rejected that content and it has not been pressed before us. The contention that a large percentage out of 100 tons attached from the petitioner's warehouse consisted of "prime quality goods" which were not intended to be delivered has little substance. The High Court rejected that content and it has not been pressed before us. The contention that a large percentage out of 100 tons attached from the petitioner's warehouse consisted of "prime quality goods" which were not intended to be delivered has little substance. It is not the case that any intimation in writing was sent by the Customs Authorities to the Port Trust authorities to exclude from sale "prime quality goods". The expression "prime quality goods" is not a trade-term: it appears to have been picked out of the Iron & Steel Control Order, 1956 (which had ceased to be in operation before the date of auction in question). According to the Iron & Steel Control Order, 1956, "prime quality goods" are goods mentioned in the Schedule to the order. In the Schedule there are several items mentioned, for instance, plates, black sheets, wires which may be regarded as "prime quality goods" within the Iron & Steel Control Order, 1956, and still the auctioneer in the presence of the Customs Authorities informed the bidders that those goods were put up for sale. The expression "scrap" is also not a trade term with any definite connotation: an article may be scrap to one person, to another person it may be serviceable. Scrap cannot be defined, having regard either to the use to which the article has to be put or the reason why the article has been discarded. In the auctioneer's list of articles, Item 156 was designated "scrap unserviceable" and Item 157 as "scrap re-rollable". In the absence of any reservation expressly made, it cannot be said that merely because certain articles included in the two Lots were capable of being used or could be regarded as "goods of prime quality" whatever that expression may mean they were intended to be excluded from the auction sale. 11. The Port Trust had power to dispose of the goods lying with it though it was not the owner of those goods. The Port Trust advertised the goods for sale in lots subject to the reservation applicable to goods described in the Special Conditions. The goods were lying in the open as unclaimed good for a long time and were regarded as scrap i.e. rusted goods which could not be used efficiently for the purpose for which they were imported. The Port Trust advertised the goods for sale in lots subject to the reservation applicable to goods described in the Special Conditions. The goods were lying in the open as unclaimed good for a long time and were regarded as scrap i.e. rusted goods which could not be used efficiently for the purpose for which they were imported. Assorted goods lying in a heap or heaps in the yard of the Port Trust were, it is common ground, intended to be sold in bulk, and no intimation was given by the Port Trust authorities to the bidders excluding any specific classes of goods other than goods described in Items (i) to (xii) of Special Condition No. 4 from sale. 12. In para 4 in the affidavit of Gandhi it was averred that the bidders were informed that apart from the twelve items mentioned in the Special Conditions, all materials which fell within the general description of goods announced including rails, wires, sheets and plates would be available to them for delivery. This statement is not susceptible of the interpretation that only those articles which may be found to be "commercial scrap" were intended to be sold, and other goods were to be excluded from sale. Gandhi has not stated that goods other than those referred to in clause 4 of the Special Conditions were intended to be excluded from sale. On a careful consideration of the evidence in the light of the order sanctioning the sale of "unconnected cargo", we are of the view that the Customs Authorities had not excluded from the sanction goods now described as "prime quality goods". At the trial of the petition it was claimed that out of the total quantity of goods remaining to be delivered from the heap which contained Lots Nos. 156 and 157 a very large fraction was "prime quality goods and serviceable material". If that was so, especially when inventories were prepared and letters were exchanged for a long time between the Customs and the Port Trust authorities, some record relating to the goods intended to be sanctioned for sale ought to have been made available to the Court. 156 and 157 a very large fraction was "prime quality goods and serviceable material". If that was so, especially when inventories were prepared and letters were exchanged for a long time between the Customs and the Port Trust authorities, some record relating to the goods intended to be sanctioned for sale ought to have been made available to the Court. We are unable to believe that responsible officers of the Customs Department who were concerned with the levy of customs duty on the goods which had remained to be delivered would be so negligent in respect of the vast quantity of goods as not to prepare separate inventories of goods which were intended to be sold after confiscation and of goods which were not intended to be sold. But the Customs Authorities have withheld from the Court the relevant record in their possession on which the order dated May 3, 1966, was passed and have, after the Port Trust authorities had taken the step of stopping delivery of goods which remained to be delivered, been persuaded to make an order under Section 110 of the Customs Act, which was, in our judgment, wholly uncalled for. 13. Counsel for the Union of India contended that the matter was one which was incapable of being tried in a writ petition by the High Court. He contended in the first instance that a writ petition for the relief claimed was incompetent and the only remedy of the party aggrieved by the order was either to appeal against the order or to file a suit for setting aside the order. In the alternative, counsel contended that even if the writ petition was maintainable, since disputed questions of fact arose in the case for determination, the High Court should not have dealt with the matter on affidavits and should have directed that evidence of the parties and their witnesses be recorded. We are unable to agree with counsel for the Union that a writ petition is not maintainable for the relief claimed by the petitioner. In the present case the Customs Authorities had passed an order which was challenged as unauthorised. Prima facie, in respect of such an order a writ may issue if the petitioner satisfies the Court about the truth of his contention. In the present case the Customs Authorities had passed an order which was challenged as unauthorised. Prima facie, in respect of such an order a writ may issue if the petitioner satisfies the Court about the truth of his contention. Recourse to the High Court for an appropriate writ is not always barred because the order is capable of being rectified in appeal to the departmental authorities. If there exists an adequate alternative remedy the High Court may leave the party aggrieved to seek relief before the Tribunal of appeal. But the Rule is not inexorable. Existence of a right of appeal does not bar the jurisdiction of the High Court to entertain a writ petition at the instance of an aggrieved party. If the alternative remedy is onerous or may not be equally efficacious or for other sufficient reason, the High Court may examine the validity of acts done by official bodies, alternative remedy notwithstanding. The question is one of discretion and not of jurisdiction. Again in a petition for the issue of a writ under Article 226 of the Constitution, the High Court, where the right to relief depends upon a decision on disputed questions of fact, ordinarily relegates the party aggrieved to agitate the dispute in a civil suit. That is however a rule of practice and not an incident of the jurisdiction of the High Court. In a case in which a plea of infringement of a fundamental right of a party is raised, the High Court may ordinarily enter upon investigation of fact, as well as law. Even if the claim to relief is not founded on infringement of a fundamental right, the High Court may in the exercise of its discretion in appropriate cases try disputed questions of fact in determining the right of a party claiming the issue of a high prerogative writ on the ground that a public authority has acted to his prejudice. Even if the claim to relief is not founded on infringement of a fundamental right, the High Court may in the exercise of its discretion in appropriate cases try disputed questions of fact in determining the right of a party claiming the issue of a high prerogative writ on the ground that a public authority has acted to his prejudice. The Bombay High Court has, in the rules governing the trial of proceedings on its original side, framed rules permitting evidence of witnesses to be recorded in proceedings under Article 226 as in a suit and Rule 630 of the Rules states: "If cause be shown or answer upon affidavit putting in issue any material question of fact the Court may allow oral testimony of witnesses to be taken and for that purpose may adjourn the hearing of the rule to some other date. In such a case either party may obtain summonses to witnesses, and the procedure in all other respects shall be similar to that followed in a suit." 14. The rule it need hardly be said confers no new jurisdiction: it merely affirms the jurisdiction and prescribes the procedure to be followed in the exercise of that jurisdiction. The High Court may, therefore, at the request of a party direct that a person who has filed an affidavit be called before the Court for cross-examination before his affidavit may be taken into consideration; or the Court may allow oral testimony of witnesses to be taken for the purpose of determining any material issue of fact. It is common ground that no request was made before K.K. Desai, J., that any of the deponents of affidavits be called before the High Court for cross-examination, nor was the Court requested to set down the case for trial on evidence viva voce. The parties were willing to have the matter tried on affidavits only. It is now too late to contend that the discretion exercised by the learned Judge to try the matter on affidavits was improperly exercised. 15. If the contentions of the parties are analysed, there does not arise any issue depending upon determination of complicated fact on which it was necessary to set down the case for trial on evidence viva voce. 15. If the contentions of the parties are analysed, there does not arise any issue depending upon determination of complicated fact on which it was necessary to set down the case for trial on evidence viva voce. The main issue between the parties relating to the question whether in sanctioning sale of goods by public auction, any goods were directed to be excluded from sale had of necessity to be determined by reference to the record of the customs Department and the Port Trust. The two orders dated May 3, 1966, passed by the Customs Authorities do not support the case, and the case of the Port Trust that at the time of the auction it was expressly announced that "prime quality goods" were excluded from sale is not supported by the affidavit of Gandhi. It is true that Rangnekar who filed an affidavit on behalf of the Port Trust swore that "it was made absolutely clear to all the intending bidders before the auction that what was being offered for sale was unconnected (unclaimed) unserviceable scrap only in the said Lots Nos. 156, 157 and that iron and steel materials other than unserviceable were not offered for sale. I deny that the auction sale was in respect of all the goods in Lots Nos. 156 and 157 excluding sale of 12 items mentioned in Condition 4 of Exhibit B. * * * In reply they (the intending bidders) were informed that apart from the 12 items * * * all materials which fell within the general description of goods announced for sale would be available to them for delivery, inasmuch as the auction was only in respect of unserviceable scrap in the said Lots Nos. 156, 157 and not the other iron and steel materials (prime quality materials) which were lying mixed up in the said lots". On the other hand, the petitioner swore that all the goods described as Lots Nos. 156 and 157 were, subject to the reservation in the Special Conditions, sold to him. The assertion by Kalyanpur Rao that it was never the intention of auctioning any goods other than melting and re-rollable scrap in Lots Nos. 156 and 157 is, in our judgment, futile. Kalyanpur Rao has no personal knowledge: his information is, it is claimed, gleaned from record which is withheld from the Court. The assertion by Kalyanpur Rao that it was never the intention of auctioning any goods other than melting and re-rollable scrap in Lots Nos. 156 and 157 is, in our judgment, futile. Kalyanpur Rao has no personal knowledge: his information is, it is claimed, gleaned from record which is withheld from the Court. The Officer who made the order sanctioning sale has made no affidavit, and the order recorded by him does not support the contention. Undoubtedly a disputed question of fact fell to be determined, but it was not a question of any great complexity. Rangnekar had, it is clear, made inconsistent statements in his affidavit, and Kalyanpur Rao's affidavit had no evidentiary value. The case of the Customs Department and the Port Trust was not supported by any documentary evidence. An order directing the trial of the petition on affidavits only is not in the circumstances open to any serious criticism. We, therefore, reject the application made before us that the Union of India and the Port Trust be given an opportunity to have the question determined on evidence viva voce. 16. Counsel for the Port Trust adopted the arguments of counsel for the Union and submitted in addition that the claim made by the petitioner was in substance a claim for specific performance of a contract, and it is the normal practice of the High Court, that to enforce the rights and obligations arising out of a breach of contract, the High Court will not entertain a petition under Article 226 of the Constitution, but will relegate the parties to a civil suit. It is true as held by this Court in Lekhraj Satramdas Lalvani v. Deputy Custodian-cum-Managing Officer, (1966) 1 SCR 120 that to enforce obligations arising out of a breach of contract, the High Court will not entertain a writ petition. But in the present case, the petitioner was, not seeking to enforce a contractual obligation. Under the general conditions of the auction when the bid of the petitioner was accepted, he became the owner of the goods. After the bid of the petitioner was accepted, the goods auctioned remained in the custody of the Port Trust for and on behalf of the petitioner. The petitioner was not thereafter seeking to enforce the terms of any contract: he was enforcing his right to the goods on payment of the price. After the bid of the petitioner was accepted, the goods auctioned remained in the custody of the Port Trust for and on behalf of the petitioner. The petitioner was not thereafter seeking to enforce the terms of any contract: he was enforcing his right to the goods on payment of the price. Counsel for the Port Trust relied upon Sections 57 and 58 of the Sale of Goods Act, 1930, and contended that even in a suit where the title to the property has passed, the Court may award damages and may not order delivery of specific goods. But that, in our judgment, is wholly irrelevant. A public authority refusing to deliver goods belonging to a citizen must, if called upon, show some adequate ground for his refusal, and must set up adequate grounds for his claim that the citizen be driven to a long and costly litigation by filing a suit for the value of the goods or for damages for non-delivery. The only ground suggested before us was that the sale of "prime quality goods" was not authorised and was never intended to be made. That contention we have already negatived. Apart from that plea, there is no other ground of justification set up by the Port Trust for refusing to deliver the goods of the petitioner. 17. It was somewhat faintly urged before us by counsel that if the Port Trust are compelled to part with the goods in respect of which claims were made by the importers, the Port Trust would be faced with litigation at the instance of the importers of those goods. But, in our judgment, there is no substance in that contention. The Port Trust is by the terms of Section 87 of the Bombay Port Trust Act, 1879, not liable to be sued for anything done, or purported to have been done, in pursuance of the Act, without a notice of the intended suit or other proceeding, and of the cause thereof, nor after six months from the accrual of the cause of such suit or other proceeding. In exercise of the statutory authority which the Port Trust possesses under Section 64-A of the Bombay Port Trust Act, 1879, the goods in its custody were disposed of. In exercise of the statutory authority which the Port Trust possesses under Section 64-A of the Bombay Port Trust Act, 1879, the goods in its custody were disposed of. If, thereafter any claim was made, it had to be made after giving a notice in writing and within six months from the date of sale. It is not said that any suit to enforce such a claim has been filed. Again in order to protect the rights of the Port Trust the learned trial Judge had made a reservation in his order that if any of the goods have been claimed or are liable to be delivered to any person, the Customs Authorities and the Port Trust will be at liberty to inform the petitioner of that fact and for that purpose to withhold delivery to the petitioner. That reservation clearly protects the Port Trust against any claims which have been made. 18. Counsel for the Port Trust contended that even if it be held that the claim by the petitioner was only in respect of delivery of goods belonging to him, the High Court was still not justified in entertaining a writ petition for enforcement of the claim. The writ petition, said counsel for the Port Trust, is not intended to be a substitute for a suit in the civil court, for delivery of property wrongfully withheld by a public authority. It is not contended, and cannot be contended, that jurisdiction to order delivery of goods withheld by a public authority cannot be exercised by the High Court exercising jurisdiction under Article 226 of the Constitution. The High Court has exercised its jurisdiction on the view that the action of the Port Trust authorities in stopping delivery of the goods was arbitrary, and we see no reason to hold that the discretion of the High Court was improperly exercised. 19. The plea that between the Port Trust and the petitioner there was no contract of sale at all, because the parties were not agreed as to what was intended to be sold, is, in our judgment, futile. We have held, agreeing with the High Court, that the goods described in Lots Nos. 156 and 157, excluding only the goods of the description mentioned in the Special Conditions, were offered to be sold. We have held, agreeing with the High Court, that the goods described in Lots Nos. 156 and 157, excluding only the goods of the description mentioned in the Special Conditions, were offered to be sold. In the auctioneer's list and in the order passed by the Assistant Collector of Customs there was reference to the sale of "scrap", but from that it cannot be inferred what the Port Trust offered to sell was only such goods as may commercially be regarded as scrap, and no other goods. On a reasonable interpretation of the auction sale list, the general and special conditions, and the bid made by the petitioner and acceptance thereof which has been recorded on the auction list by the auctioneer, the petitioner's bid for the entire quantity of goods in Lots Nos. 156 and 157 excluding goods in the special conditions incorporated in the terms of the sale as clarified by the auctioneer was accepted. The theory that there was no concluded contract is belied by the delivery of more than 400 tons out of the goods sold. For some reason which is not clear from the record, the Port Trust authorities have sought to raise a dispute about their obligation to deliver the goods. We do not think, on the materials placed before this Court, that on the findings recorded by the High Court, there was a bilateral mistake which would justify the Court in holding that there was no contract at all. 20. It was then contended that the goods were sold by description the description being that they were scrap, and property in those goods only out of Lots Nos. 156 and 157 which could commercially be regarded as scrap passed to the petitioner. We do not think that the hypothesis that the sale was in respect of scrap out of Lots Nos. 156 and 157 is correct. The goods, it is true, were sold by description. But the description was "Lots Nos. 156 and 157" and both the parties regarded the lots in their entirety as "scrap unserviceable" and "scrap re-rollable". There is therefore no scope for the argument that only a part of the goods described in Lots Nos. 156 and 157 was agreed to be sold. 21. But the description was "Lots Nos. 156 and 157" and both the parties regarded the lots in their entirety as "scrap unserviceable" and "scrap re-rollable". There is therefore no scope for the argument that only a part of the goods described in Lots Nos. 156 and 157 was agreed to be sold. 21. The suggestion that the goods were offered for sale by the Port Trust authorities pursuant to an order of the Customs Authorities and the Customs Authorities had granted permission with reference to the "tariff entries" in the Customs Act has no merit whatever. There is no evidence on the record that sanction was accorded for sale of scrap by reference to any "tariff entry". In the orders recorded on May 3, 1966, there is no reference to scrap at all: the expression "scrap" occurs only in the Schedule to the first order indicating the nature of the goods in Lots Nos. 156 and 157. Our attention has not been invited to any specific entry in the relevant tariff list in the Customs Act with reference to which the order was or could be passed. There is also no evidence that it was intended by the Customs Authorities to exclude from their permission any of the goods except those specifically referred to in the supplementary order dated May 3, 1966. It is pertinent to note that reference to the so called "prime quality goods" which it is alleged were to be excluded was made for the first time in the order issued on June 7, 1966, by the Assistant Collector of Customs, and even that somewhat indirectly. In the preamble to the order dated June 7, 1966 it was recited that there were "reasons to believe that the goods such as round bars, billete, shaftings, prime quality are liable to confiscation under Section 1ll of the Customs Act, 1962". Thereafter at the trial the theory that "prime quality goods" were not intended to be sold was apparently evolved. We are of the view that what was offered for sale and agreed to be purchased by the petitioner was all the goods covered by Lots Nos. 156 and 157 but excluding goods mentioned in the special conditions. There is no dispute that the goods in respect of which claims had been made and were pending could not be delivered to the petitioner. 22. 156 and 157 but excluding goods mentioned in the special conditions. There is no dispute that the goods in respect of which claims had been made and were pending could not be delivered to the petitioner. 22. In each of the two Lots 156 and 157 the goods were described as "Approximately 1000 tons". The petitioner claimed that he was entitled to the goods in the two lots which in his submission were lying at different places. Tulzapurkar, J., directed the Receiver to "demarcate the places" where the two lots were lying. Before the Receiver it was contended on behalf of the petitioner that lot No. 157 was lying in different heaps at several places, whereas on behalf of the Port Trust authorities it was contended that the two lots were mixed up, and were lying in one heap. There is no dispute that the total weight of the goods remaining at a place which was by lines marked in white paint after delivery of 400 tons to the petitioner between May 21 and 31, 1966, was a little more than 632 tons. The petitioner claimed in addition to these goods certain other goods which were lying in the premises of the Port Trust and which he pointed out to the representative of the Receiver. The places so pointed out were marked in red paint by the Receiver's representative. If there was any prima facie grounds to believe that the goods agreed to be sold were not the goods lying only at the places marked in white paint, but also in the areas marked with red paint, a substantial question of fact might have arisen for determination, and it would have been necessary to direct evidence to be taken by the High Court. But, in our view, on the materials on the record, there is no doubt that what was agreed to be sold was one heap of goods which were referred to as two Lots 156 and 157. That is clear from the affidavit of Gandhi the auctioneer. It is true that in the judgment of K.K. Desai, J., there is no clear finding as to what was the quantity of goods remaining to be delivered. That is clear from the affidavit of Gandhi the auctioneer. It is true that in the judgment of K.K. Desai, J., there is no clear finding as to what was the quantity of goods remaining to be delivered. But the learned Judge has in his judgment observed: "The remaining balance of mixed goods relating to the Lots 156 and 157 sold to the petitioner only weighed 632 tons." He again observed after discussing various points raised before him that "as regards the balance of the goods sold to the petitioner there was no warrant in preventing delivery thereof sold to the petitioner". The learned Judge has not, however, set out what in his view the "balance of the goods" was. In the final order passed by him, the learned Judge made the rule absolute in terms of prayer (b) of the petition and directed the Union of India and the Port Trust to deliver to the petitioner the remaining goods of Lots Nos. 156 and 157 sold to the petitioner by auction on May 3, 1966, subject to exclusion of the goods referred to in Condition 4 of the Special Conditions. In the judgment of the High Court, it is recited that after delivery of 400 metric tons was taken by the petitioner, about 632 tons remained to be delivered. But the High Court also did not clearly record a finding about the weight of the total quantity of goods agreed to be sold at the auction, and merely confirmed the order of the trial Judge. Before us counsel for the petitioner did not seek to contend that his client was entitled to claim delivery of any goods in excess of 632 tons lying in the place marked in white paint under the order of Tulzapurkar, J. We, therefore, while confirming the order think it necessary to clarify the directions of the High Court as follows: (1) That the goods sold at the public auction held on May 3, 1966, to the petitioner were those in Lots Nos. 156 and 157 lying at Frere Basin as mentioned in the Auction List but excluding therefrom only Items (i) to (xii) of Condition 4 set out in the Special Conditions. 156 and 157 lying at Frere Basin as mentioned in the Auction List but excluding therefrom only Items (i) to (xii) of Condition 4 set out in the Special Conditions. The expression "etc." in Items (ii), (vii), (ix) and (xii) of Condition 4 only means goods of the kind and description referred to in those items and that rails, wires, sheets and plates, if any, included in Lots Nos. 156 and 157 are liable to be delivered, notwithstanding that they fall within the description of the Special Condition 4. (2) That the total quantity of goods sold at the public auction dated May 3, 1966, was 400.89 tons plus 632 tons out of which 400.89 tons had already been delivered and the remaining 632 tons now lying in the area marked by white paint lines referred to in the Receiver's report remained to be delivered. (3) That out of 632 tons remaining to be delivered goods falling within items (i) to (xii) of Special Condition No. 4 and goods in respect of which claims have been made will be excluded, and the balance will be delivered on payment of the price at the rate accepted at the auction. 23. We accordingly direct that the Port Trust will deliver to the petitioner the balance of 632 tons lying in the area marked by white paint lines referred to in the Court Receiver's report, and of which inventory had already been made, except goods of the description in 12 items mentioned in Condition No. 4 of the Special Conditions and the goods mentioned in Items 11 to 17 mentioned in Exhibit B to the affidavit of Noel de Cuhna dated October 17, 1967, filed in this Court. Delivery shall be effected within two months from the date of the order of this Court free of any rate or rent and thereafter the petitioner will pay rent at the rate prescribed in the Dock Scale of Rates. 24. Counsel for the Union of India contended that this Court should give a direction about payment of customs duty due in respect of the goods. But the Port Trust authorities have undertaken to pay the duty and that is so clearly directed under the supplementary order dated May 3, 1966, passed by the Assistant Collector of Customs. 24. Counsel for the Union of India contended that this Court should give a direction about payment of customs duty due in respect of the goods. But the Port Trust authorities have undertaken to pay the duty and that is so clearly directed under the supplementary order dated May 3, 1966, passed by the Assistant Collector of Customs. We are at this stage not concerned to decide as to what is the appropriate duty payable in respect of the goods which have been sold by the Port Trust. 25. The petitioner claimed delivery of 2000 tons approximately of scrap. On the view taken by us he has succeeded only in respect of 1032 tons 400 tons which have been already delivered, and 632 tons remaining to be delivered. The order of the learned Single Judge and the High Court was not clear and it would have led, if allowed to stand, to considerable litigation. Before us, counsel for the petitioner did not seek to press his case for delivery of goods exceeding 632 tons. The High Court had also given no directions with regard to the exclusion of goods which by virtue of the direction given by the Customs Authorities, the Port Trust authorities were not bound to give delivery of and in respect of which claims had been made. In the circumstances we think that there should be no order as to costs of the petition out of which these appeals arise throughout. 26. The order of the High Court is therefore affirmed with the clarifications set out hereinbefore. The appeals are dismissed subject to the directions hereinbefore given. The parties will bear their own costs throughout.