JUDGMENT The petitioner No. 1 company claims to be carrying on business, inter alia, as Steamer Agents and Handling Contractors in India, including the Port of Calcutta, for Neptune Orient Lines, Singapore. The petitioner No.2 is a ship-owner and owner and operator of containers, which, in facts, forms the subject matter of the present writ application. 2. It appears that between July 1994 and September 1994, a total No.125 containers belonging to and operated by the petitioner no. 2 filled with poppy seeds, allegedly of Pakistani origin, were unloaded at the Calcutta Port from various vessels which called at Calcutta on various dates. The said containers were landed at Calcutta Port in transit for despatch to Nepal with Cargo for use and consumption in Nepal. The details of the vessels, containers and the names of the consignees, have been set out in Annexure "A" to the writ petition. 3. According to usual practice, Cargo bound for Nepal is cleared by the clearing Agents of the consignees or the notified parties, within 7 days of arrival at the Calcutta Port. It is the petitioners case that in the usual course, the containers would be emptied and be made ready for other use within about a fortnight from the date of their arrival at the Calcutta Port. 4. According to the petitioners, in July 1994 the Calcutta Customs raised certain disputes regarding the said Cargo of poppy seeds meant for Nepal and the same were detained at the Calcutta Port, as a result whereof, the containers containing the poppy seeds also remained detained. 5. Inasmuch as, detention of the cargo of poppy seeds by the Customs authorities resulted in the blockage of the petitioners' containers, the petitioners No. 1 caused a representation to the Calcutta Port Trust and Customs authorities for release of the said containers upon the petitioners' undertaking to destuff the said containers and store the same in sealed packets, after proper identification, in any Bonded Warehouse, as per the directions of respondent Port and Customs authorities. 6. According to the petitioners, despite the representation made by them from time to time, and despite the fact that the detention of the cargo had not been caused because of any act or in action on the part of the petitioners, the respondents concerned have not allowed the petitioners to remove the containers after destuffing the same. 7. 6. According to the petitioners, despite the representation made by them from time to time, and despite the fact that the detention of the cargo had not been caused because of any act or in action on the part of the petitioners, the respondents concerned have not allowed the petitioners to remove the containers after destuffing the same. 7. Appearing in support of the writ petition, Mr. A.P. Sircar, learned senior counsel, contended that pursuant to the letter written by the petitioner No. 1 on 6th January, 1995, the petitioners again sought permission from the Calcutta Port Trust to destuff the containers, but were advised by the Calcutta Port Trust Authorities by letter dated 14th January, 1995, that a no-objection certificate would have to be obtained by the petitioners from the customs authorities in that regard for storing the after destuffing from the containers. 8. Mr. Sircar submitted that by a letter dated 2nd March, 1995, the Customs authorities duly granted permission to the petitioners for destuffing the containers in question, provided suitable sheds were allocated by the Calcutta Port Trust authorities for storing the cargo of poppy seeds. 9. Mr. Sircar submitted that between March 1995 and October 1995 a total No. 43 containers were allowed to be destuffed by the Calcutta Port Trust authorities, but the remaining containers could not be emptied since the Calcutta Port Trust authorities failed to allocate further sheds to the petitioners for storing the cargo after the same was destuffed from the containers. 10. Mr. Sarkar urged that out of a total number of 125 containers, the petitioners have been allowed to destuff 47 containers, leaving a balance of 78 containers which are lying blocked since 25th March, 1994. 11. Mr. Sircar urged that since the petitioners were not the owners of goods in question, the detention of the containers by the Calcutta Port Trust authorities was wholly illegal and arbitrary and appropriate directions were required to be given to the said authorities to allow the petitioners to destuff the remaining 78 containers and thereafter to allow the petitioners to remove the said containers for other use. 12. Appearing for the Calcutta Port Trust and its authorities Mr. Aloke Banerjee, learned Advocate, firstly contended that the cosignees and/or their Clearing Agents were not interested in removing the cargo of poppy seeds on payment of demurrage, as claimed by the Calcutta Port Trust authorities. 12. Appearing for the Calcutta Port Trust and its authorities Mr. Aloke Banerjee, learned Advocate, firstly contended that the cosignees and/or their Clearing Agents were not interested in removing the cargo of poppy seeds on payment of demurrage, as claimed by the Calcutta Port Trust authorities. Mr. Banerjee urged that the owners of the cargo had filed several writ petitions in this court for release of the poppy seeds and the said applications were allowed by this court, leaving the payment of demurrage charges to the good sense of the Customs authorities. 13. Mr. Banerjee submitted that the appeals taken from the order passed in the writ petitions were dismissed on 31st October, 1995 but the Appeal Court came to a finding that the Customs were not responsible for detention of the goods, and, consequently, they could not be held responsible for payment of such demurrage. 14. Mr. Banerjee urged further that the Calcutta Port Trust authorities were not concerned with the question as to whether the petitioners or the Customs authorities were liable to pay demurrage on account of detention of the cargo at the Calcutta Port, but they were entitled to recover the same before the cargo could be released. 15. In support of his aforesaid contention, Mr. Banerjee referred to the decision of the Supreme Court in Board of Trustees for Port of Calcutta vs. Maheskumar Gupta and Others, reported in AI R 1991 SC at page 1243, wherein it was held that without furnishing a Bank Guarantee the goods in questions could not be removed by respondents. Accordingly, the Supreme Court permitted the respondents to export the goods under the supervision of a commissioner appointed by the Court and the entire proceeds of such export were directed to be kept in a separate account in a nationalised Bank. 16. Mr. Banerjee then referred to another decision of the Supreme Court in The Board of Trustees of the Port of Bombay vs. Indian Goods Supplying Company, reported in AIR 1977 SC at page 1622, wherein it was held that in the absence of any evidence that the delay caused in clearing the goods was due to any act of the Port Trust or its authorities, the claim of the Calcutta Port Trust for payment of demurrage could not be resisted. 17. 17. The aforesaid principle was reiterated by the Supreme Court in Board of Trustees of the Port of Bombay vs. Jaihind Oil Mill Co. & Anr. reported in AIR 1987 SC at page 622 and in the case of International Airports Authority of India and Anr. vs. Grand Slam International and others, reported in 1995(3) SCC at page 151. 18. Mr. Banerjee then urged that the petitioners could not be allowed to remove the goods without payment of the demurrage charges, since they came within the definition of 'owners' within the meaning of clause (o) of s. 2 of the Major Port Trusts Act, 1963. 19. •Mr. Banerjee urged that if the containers in question were to be removed by the petitioners, then, in such event, they should be directed to remove the goods as well upon payment of demurrage charges. 20. Mr. S.K. Mitra, who appeared for the Customs authorities, submitted that his clients had no objection to the petitioners removing the cargo of poppy seeds in view of the orders passed on the writ petitions filed by the owner of the said goods. 21. Mr. C.L.Ganguly, Senior Advocate, who appeared for the respondent No.8, submitted that the said respondent was not at all a necessary party in the instant writ proceedings, since no relief had been sought for against the said respondent, nor could any mandatory direction be given to it for use of its warehouse for storing the cargo of poppy seeds. 22. Apart from the above, Mr. Sunil Chatterjee, learned Advocate, appeared and submitted that he had instructions to appear Sind pray for leave to intervene in the matter on behalf of the owners of the cargo of poppy seeds. Mr. Chatterjee submitted that such leave had already been given earlier. 23. Mr. Chatterjee submitted that the consignees of the cargo of poppy seeds were not in a position to remove the cargo on payment of demurrage charges and that such order as may seem appropriate to the Court may be passed in the circumstances. 24. Replying to the submissions made on behalf of the respondents, as also the intervenor, Mr. 23. Mr. Chatterjee submitted that the consignees of the cargo of poppy seeds were not in a position to remove the cargo on payment of demurrage charges and that such order as may seem appropriate to the Court may be passed in the circumstances. 24. Replying to the submissions made on behalf of the respondents, as also the intervenor, Mr. Sircar urged that as owners of the containers, the petitioners could not be brought within the scope and ambit of clause (o) of s. 2 of the aforesaid Act, since the petitioners were not concerned with the cargo in question, either as consignor or consignee, shipper or agent for the sale, custody. loading or unloading of such goods. 25. Mr. Sircar, on the other hand, referred to the Scale of Hates as prescribed by the Calcutta Port Trust by Notification No. 461 upon approval of the said Scale of Rates by the Central Government, under s. 52 of the aforesaid Act. 26. Referring to paragraph 3 (vi) of the said Scale of Rates, Mr. Sircar contended that provision had been made therein for cargo-related charges to be levied on the owners of the cargo or their Clearing and Forwarding Agents, except in cases where the said owners or steamer agents agreed to pay such charges. 27. Mr. Sircar also referred to Ss. 58, 59 and 61 of the Major Port Trusts Act, 1963, which provide that the Board would have a lien on the goods to be removed from its custody, for payment of rent and rates, and the Board may seize and detain the same till such rates and rents were fully paid. 28. Provision has also been made for sale by the Port Trust authorities of goods which have come into its custody after the expiry of two months, or in case of animals and perishable goods, within an earlier period. 29. Mr. Sircar submitted that it is the Calcutta Port Trust and its authorities who have failed to exercise their right under the aforesaid provisions and have, on the other hand, made several deductions amounting to Rs.11,14,074/-by debiting its Marine A/c No. 1-33 and unless prevented from doing so, would deduct further amounts when the remaining containers would be allowed to be destuffed. 30. 30. From the submissions made on behalf of the respective parties, it is clear that neither the Customs authorities nor the Calcutta Port Trust authorities have any objection to the cargo and the containers being removed upon payment of demurrage charges as claimed by the Calcutta Port Trust authorities. 31. It is also clear that the Port Trust authorities are not inclined to allot any further space for the cargo to be stored after destuffing in view of the categorical submission made by Mr. Chatterjee that the owners of the goods were not willing to remove the same, if they were required to pay the demurrage charges. 32. The question which, therefore, emerges for decision is whether the petitioners can be allowed to remove the containers upon destuffing the same, without payment of the demurrage charges of the Port Trust authorities. 33. The answer to the said question has been provided for in Ss. 59, 61 and 62 read with clause (0) of s. 2 of the Major Port Trusts Act, 1963. 34. In order to appreciate the submission of the respective parties, the definition of "owner" in clause (0) of s. 2 of the aforesaid Act is set out herein below :- "2(o) "owner", (i) in relation to goods, includes any consignor, consignee, shipper or agent for the sale, custody, loading or unloading of such goods; and (ii) in relation to any vessel or any aircraft making use of any port, includes any port owner, charterer, consignee, or mortgagee in possession thereof". 35. From the aforesaid definition it will be clear that in order to be brought within its scope one has to be either the consignor or the consignee, shipper or agent for the sale, custody, loading and unloading of the goods in question. 36. The petitioners, who are the owners of the containers only, do not come within the said definition in relation to the goods. At best, the petitioners come within the scope of the second part of the definition, which does not, however, impose any liability on the petitioners for payment of demurrage in respect of the goods in question. 37. 36. The petitioners, who are the owners of the containers only, do not come within the said definition in relation to the goods. At best, the petitioners come within the scope of the second part of the definition, which does not, however, impose any liability on the petitioners for payment of demurrage in respect of the goods in question. 37. Accordingly, the Port Trust authorities cannot have any claim for demurrage against the petitioners and in order to recover the same they are at liberty to take recourse to the provisions of either s. 61 or s. 62 of the Major Port Trusts Act, 1963. As indicated, hereinbefore, under s. 59 of the said Act, the Port Trust authorities have a lien over the goods which come into their custody for payment of the rates and charges. Section 61 provides that in certain cases the Port Trust authorities may even sell the goods within two months from the date when the said goods come into their custody or even earlier in case of perishable items and animals. 38. Section 62 provided that if the goods are not removed within a specified time, the Board would be entitled, after the expiry of one month from such date to sell the goods for realisation of its rents and rates. The said provisions do not provide for the Port Trust authorities to have any lien over the containers of the goods and detention thereof by the Port Trust authorities would not have legal sanction. 39. The decisions cited by Mr. Banerjee does not help the case of the Port Trust authorities, since they can have no claim for demurrage against the petitioner. 40. In that view of the matter, the Calcutta Port Trust authorities, as also the Customs authorities, are directed to allow the petitioners to destuff the cargo in the 78 containers within one week from date, and, thereafter, to allow the petitioners to remove the containers for their use. 41. The Calcutta Port Trust authorities will be at liberty to take recourse to the provisions of s. 61 or s. 62 of the Major Port Trusts Act, 1963, in respect of the cargo of poppy seeds, or to take such other steps as they may be entitled to in law to recover their rents and rates in respect thereof from the persons liable to pay the same. 42. 42. The Calcutta Port Trust authorities are also directed to refund to the petitioners the ground rent debited from the petitioners Marine A/c No.1-33, within a week from date. 43. The writ application is thus disposed of. 44. There will be no order as to costs. 45. All Parties to act on a signed copy of the operative part of this judgment. 46. Prayer for stay of the judgment is considered and refused in view of my aforesaid findings. Application allowed.