Y. R. MEENA, J. ( 1 ) BY this writ petition the petitioner has prayed that respondents be directed to arrange for destuffing of the cargo contained in FCL containers and further direct the respondents that they are not to charge any rent/or demurrage in respect of the containers particulars whereof are given in Annexure "p". The respondents be further directed not to debit the petitioner's marine account in respect of the containers in question and respondents be directed to return the empty containers to the petitioner without charging any demurrage or rent in respect of the containers. ( 2 ) THE petitioner No. 1 is carrying on business as Shipping Agents. At all material times acted as the agent of a foreign principal, petitioner No. 2. ( 3 ) 10 Containers of Urea arrived at Calcutta Port from Dubai on 25. 6. 96 and further 10 containers of Urea arrived at Calcutta from Dubai on 6. 10. 96. Petitioner duly filed cargo declaration with the respondent port authorities declaring the same as to be Nepal cargo and given the names of the Nepalees consignees, these are respondent Nos. 12 and 13. Upon arrival of the Cargo notices sent by the petitioner to the consignees and the notified parties however, inspite of the repeated requests and demands respondents Nos. 12 and 13 have not taken delivery of cargo. ( 4 ) ON 28. 4. 97 petitoner No. 1 made request to Custom Authorities for auction of the cargo in question. On 14. 6. 97 petitoners have also made the request to Port Authorities for destuffing of the Cargo from the containers so that containers may be released and re-exported by the petitioners. On 20th June, 1997 by a letter of respondent No. 6 to petitioner with a request to contact Nepal Transit Warehousing Corporation. On 3. 7. 1997 there was a letter from Custom authorities to the petitioner seeking certain particulars with regard to the unclaimed cargo so that immediate action could be taken by the said authority. Particulars as desired by the Custom authorities, duly furnished by the petitioner on 16. 7. 1997. In July, 1997 there was a request made by the respondent Port authorities to the Nepalese Consulate seeking their consent to the sale of the cargo in terms of the Major Port Trust Act, 1963. Particulars as desired by the Custom authorities, duly furnished by the petitioner on 16. 7. 1997. In July, 1997 there was a request made by the respondent Port authorities to the Nepalese Consulate seeking their consent to the sale of the cargo in terms of the Major Port Trust Act, 1963. ( 5 ) THE case of the petitioner, when the consignee did not take charge of cargo in question the respondent Port authorities have under the obligation to sell the same in accordance with the provision of section 62 of the Major Port Trust Act, 1963. They are not entitled to claim any demurrage from the petitioner, as the detention of the containers was not on account of petitioner's fault. ( 6 ) ON the other hand learned counsel for the Port authorities has submitted that so long the cargo is in the containers, the Port authorities cannot sell that cargo and when the delay was partly due to the petitioners and partly due to the Custom authority who till today did not give their consent for the sale of the cargo. Port authorities should not suffer for the fault of petitioners or for the Customs Department. They are entitled for the demurrage for the period the containers remained in the port premises. ( 7 ) IN view of these facts the limited controversy for my consideration is who is at fault for not removing the cargo from containers for sale, when the consignee have not taken the delivery of cargo nor prepared to take the delivery of cargo and if there is fault on the part of the petitioners they are liable for the demurrage, for the period containers remained at the Calcutta Port for the fault of petitioners. ( 8 ) SECTIONS 60 and 61 of the Major Port Trust Act 1963 (hereinafter referred to as an Act 1963) provides that if any amount is payable by the party entitled for such goods, those goods can be retained by the Port Trust against the amount payable by such party. Provision of section 61 further provides, if the dues against rent or lien for freight has not been paid, Board may after the expiry of two months from the time, when any goods have passed into tis custody, can sell those goods but before making such sale the Board shall give 10 days notice of the same. Provision of section 61 further provides, if the dues against rent or lien for freight has not been paid, Board may after the expiry of two months from the time, when any goods have passed into tis custody, can sell those goods but before making such sale the Board shall give 10 days notice of the same. The relevant provision of section 60 and 61 of Act 1963 reads as under:-"60. Ship-owner's lien for freight and other charges.- (1) If the master or owner of any vessel or his agent, at or before the time of landing from such vessel any goods at any dock, wharf, quay, stage, jetty, berth, mooring or pier belonging to or in the occupation of a Board, gives to the Board a notice in writing that such goods are to remain subject to a lien for freight or other charges payable to the Ship-owner, to an amount to be mentioned in such notice, such goods shall continue to be liable to such lien to such amount. (2) The goods shall be retained in the custody of the Board at the risk and expense of the owners of the goods until such lien is discharged as hereinafter mentioned; and godown or storage rent shall be payable by the party entitled to such goods for the time during which they may be so retained. (3) Upon the production before any officer appointed by the Board in that behalf of a document purporting to be a receipt for, or release from, the amount of such lien, executed by the person by whom or on whose behalf such notice has been given, the Board may permit such goods to be removed without regard to such lien, provided that the Board shall have used reasonable care in respect to the authenticity of such document. 61. 61. Sale of goods after two months if rates or rent are not paid or lien for freight is not discharged.- (1) A Board may, after the expiry of two months from the time when any goods have passed into its custody, or in the case of animals and perishable or hazardous goods after the expiry of such shorter period not being less than twenty-four hours after the landing of the animals or goods as the Board may think fit, sell by public auction (or in such cases as the Board considers it necessary so to do, for reasons to be recorded in written, sell by tender, private agreement or in any other manner) such goods or so much thereof as, in the opinion of the Board, may be necessary- (a) If any rates payable to the Board in respect of such goods have not been paid, (b) If any rent payable to the Board in respect of any place on or in which such goods have been stored has not been paid, or (c) If any lien or any ship-owner for freight or other charges of which notice has been given has not been discharged and if the person claiming such lien for freight or other charges has made to the Board an application for such sale. (2) Before making such sale, the Board shall give ten days notice of the same by publication thereof (the Port Gazette, or where there is no Port Gazette, in the Official Gazette) and also at least one of the principal local daily newspapers: provided that in the case of animals and perishable or hazardous goods, the Board may give such shorter notice and in such manner as, in the opinion of the Board, the urgency of the case admits of. " ( 9 ) COUNSEL for the Port Trust submits that they cannot sell the goods unless the goods are in their possession and there should be permission from the Customs Authorities for sale of such goods. " ( 9 ) COUNSEL for the Port Trust submits that they cannot sell the goods unless the goods are in their possession and there should be permission from the Customs Authorities for sale of such goods. Sections 48 and 49 of the Customs Act, 1962 provides that if any goods brought into India from a place outside India are not cleared for home consumption or warehoused or transhipped within 30 days from the date of the unloading thereof at a Customs station or within such further time as the proper officer may allow or if the title to any imported goods is relinquished, such goods may, after notice to the importer and with the permission of the proper officer be sold by the person having the custody thereof. Section 49 of the Customs Act 1962 further provides if any goods entered for home consumption and if that goods cannot be cleared within a reasonable time, the goods may, pending clearance, be permitted to be stored in a public warehouse, or in a private warehouse if facilities for deposit in a public warehouse are not available but such goods shall not be deemed to be warehoused goods for the purpose of the sale. ( 10 ) ADMITTEDLY the goods were imported by a party in Nepal, the party has backed out and did not take delivery of the goods. Therefore, the port charges can be recovered only by sale of the cargo contained in the containers or sale of containers, but who will sell the goods or containers and how the goods in containers could be sold and who is at fault? ( 11 ) CHAPTER VII relates only for clearance of imported goods and export goods but regarding the goods in transit the relevant chapter is VIII. Section 53 of Act 1962 provides that any goods imported in a vessel or aircraft and mentioned in the import manifest as for transit in the same vessel or aircraft to any port or airport outside India or any customs port or customs airport may be allowed to be so transited without payment of duty. Section 54 of the Act further provides, where any goods imported into a customs port or custom airport are intended for transhipment, a bill of transhipment shall be presented to the proper officer in the prescribed form. Section 54 of the Act further provides, where any goods imported into a customs port or custom airport are intended for transhipment, a bill of transhipment shall be presented to the proper officer in the prescribed form. The proper officer may allow the goods to be transhipped, without payment of duty. Section 56 further provides that imported goods may be transported without payment of duty from one land customs station to another, and any goods may be transported from one part of India to another part through any foreign territory, subject to such conditions as may be prescribed for the due arrival of such goods at the place of destination. ( 12 ) THE admitted facts are that the goods were not imported for consumption in India, they are imported by the party in Nepal. Therefore, so far Calcutta Port is concerned the goods were in transit and not liable for custom duty. But even then clearance from the Department of customs is necessary before they are transported from port to destination. ( 13 ) IN the case in hand the facts are peculiar. Though the goods were in transit but Nepal party has not taken the delivery nor any other person claimed these goods which are lying in containers, at Calcutta Port. ( 14 ) THE petitioner agent for the containers requested that after destuffing the cargo from the containers, their containers should be released. The Port authorities before releasing the containers requires, before the containers are released their port charges and demurrage charges should be paid. ( 15 ) AS nobody is claiming, the cargo in the containers the demurrage charges can be recovered by sale of the cargo which is in the containers or can recovered by sale of containers. As containers are occupying the port premises, the container owners are also liable to pay the demurrage charges. ( 16 ) THE demurrage charges are for use of the port facilities where the containers are lying after unloading from the ship. Thus the main question in this petition is as to how much demurrage is payable by the petitoners, under the provisions of the Port Trust Act, for the period their containers lying at the port premises. ( 16 ) THE demurrage charges are for use of the port facilities where the containers are lying after unloading from the ship. Thus the main question in this petition is as to how much demurrage is payable by the petitoners, under the provisions of the Port Trust Act, for the period their containers lying at the port premises. ( 17 ) LEARNED counsel for the petitioner submits that steamer agent is not liable to pay the demurrage and he placed reliance on the decision of this Court in M/s. Seahorse Shipping and Ship Management Pvt. Ltd. and another v. The Board of Trustees for the Port of Calcutta and others AIR 1989 Calcutta 212. ( 18 ) IN M/s. Seahorse Shipping and Ship Management Pvt. Ltd. (supra) in para 54 of the decision of this Court observed as under:-"54. In my judgment, the contention of the petitioners must be upheld. The Port Trust Authority has not been authorised to demand payment of cargo rent from Steamer Agents who act as agent of vessels carrying the cargo to the Port of Calcutta. I am not expressing any opinion on the question whether such cargo rent can be levied upon Clearing Agents or Forwarding Agents who are the agents of the consignor and the consignee. But an agent of an owner of the vessel cannot be made liable for storage charge of cargo because he has no authority to remove the cargo from the port area. The rent due on cargo landed in the port area can be recovered from the importers, consignors, consignees or their agents or any other person entitled to take delivery of the cargo. " ( 19 ) IN Trustees of the Port of Madras through its Chairman v. M/s. K. P. V. Sheikh Mohd. Rowther and Co. Pvt. Ltd. and another AIR 1995 SC 1922 at page 1923 the apex court observed as under:-"therefore, the provisions of the Port Trust Act cannot add to the liability of the steamer or its agents which was not contemplated by the shipper or the shipowner at the time of entering into the contract. Rowther and Co. Pvt. Ltd. and another AIR 1995 SC 1922 at page 1923 the apex court observed as under:-"therefore, the provisions of the Port Trust Act cannot add to the liability of the steamer or its agents which was not contemplated by the shipper or the shipowner at the time of entering into the contract. Having regard to the functions and the obligations which a steamer has undertaken with the shipper under the contract, we cannot say that the steamer has undertaken the responsibility for the safety of the goods till the goods are cleared by the customs and taken delivery of by the consignee. As earlier referred to, the duty of the steamer is normally to deliver the goods to the consignee on the quay side but that place of delivery has been shifted by the provisions of the Port Trust Act to the warehouse where the Port Trust had stored the goods. " ( 20 ) IT is true that petitioner No. 1 is a Shipping agent of petitioner No. 2 but when no one claimed the cargo which is inside the container and containers are lying in the port premises, for that the port authority is entitled for port charges. If petitioners will not pay then the port charges in any case be recovered by sale of cargo as well as containers. ( 21 ) THE petitioners in this case are interested only in containers. The interim order for release of containers were given by this Court on 23. 9. 98 subject to the condition that petitioner shall pay demurrages upto June 97, in that case containers can be released, but final liability against port charges of the petitioners shall be subject to decision of the writ petition. ( 22 ) LEARNED counsel for the petitioner submits that when the importer in Nepal is not claiming the goods or not ready to take delivery, the port authorities could sell the goods without any delay. Learned counsel for the port authorities submits that port authorities are not competent to sell the cargo unless there is permission from the custom authority or the customs authority only competent to sell the goods if the importer is not claiming the goods. He placed reliance on the decision of this court in National Steel Corporation v. Union of India 1990 (49) ELT 18 cal ). He placed reliance on the decision of this court in National Steel Corporation v. Union of India 1990 (49) ELT 18 cal ). ( 23 ) THE issue before the court was that once the goods were sold by the customs authorities and thereafter the Port Trust Authorities sell the same goods in question to other parties in that case the dispute was that as what happens, when the goods are sold by port authority, when those goods are already sold by the Customs authority, but in the case in hand we are concerned when the imported goods are in fact lying in the container and they are yet to be sold and the petitioners are interested only in containers and not in cargo. ( 24 ) THEREFORE in view of the peculiar facts of this case, the decision in National Steel Corporation is not applicable. Whether the goods can be sold by the Port Trust Authority or by Customs authority, that is a matter between two departments of the Government. If they have not taken the proper steps within reasonable time for releasing the containers and recover their charges by sale of cargo or containers, beyond reasonable time petitioners are not liable to pay port charges. ( 25 ) LEARNED counsel for Port Trust Authority submits that when the goods are detained by the Customs Authorities and the importer is put to loss by having to pay demurrage charges for a period of such detention, the Central Government is empowered to direct not to levy demurrage charges for a period covered by such detention, but the importer should pay port charges to Port Authority, even for the period during which the goods are illegally detained by Custom Authority. ( 26 ) AS the Central Government is empowered under section 35 of the International Airports Authority Act 1971 issued directions not to levy demurrage charges for periods covered by the detention on account of laches on the part of Customs Authorities. What has been stated in the International Airports Authority Act 1971 and the Major Port Trusts Act 1963 applies as well to the Central Warehousing Corporations. ( 27 ) IN International Airports Authority of India and Ors. v. Grand Slam International and Others (1995) 3 SCC 151 Their Lordships observed in para 44 as under:-"44. What has been stated in the International Airports Authority Act 1971 and the Major Port Trusts Act 1963 applies as well to the Central Warehousing Corporations. ( 27 ) IN International Airports Authority of India and Ors. v. Grand Slam International and Others (1995) 3 SCC 151 Their Lordships observed in para 44 as under:-"44. It cannot be gainsaid that, by reason of unjustified detention of his goods by the Customs Authorities, the importer is put to loss by having to pay demurrage charges for the periods of such detention. The Central Government is empowered by section 35 of the International Airports Authority Act, 1971 and section 111 of the Major Port Trusts Act, 1963 to issue to the Authority and the Board to Trustees, respectively, directions on questions of policy after giving them an opportunity, as far as practicable, of expressing their views. The Central Government can, if so advised, after giving to the Authority and the Board of Trustees the opportunity of expressing their views, direct them, under the aforementioned provisions, not to levy demurrage charges for periods covered by detention certificates. " ( 28 ) THE Court has further observed in para 45 as under: -"45. The provisions of the Warehousing Corporations Act are substantially similar to those of the International Airports Authority Act, 1971 and the Major Port Trusts Act, 1963. What has been said above in regard to the International Airports applies as well to the Central Warehousing Corporation. " ( 29 ) IN Trustees of Port of Madras v. Nagavedulungi and Co. and others (1995) 3 SCC 730 following the decision in International Airports Authority of India and others v. Grand Slam International and others (1995) 3 SCC 151 , Their Lordships held that the importer consignee cannot avoid his liability to pay demurrage charges and other incidental charges in respect of its goods illegally detained in the customs area of the port by customs authorities under the Customs Act. ( 30 ) ADMITTEDLY the Customs Authorities have not detained the goods in the case in hand. First time the letter was written to the Customs Authorities for clearance only in June 1997. For sale of cargo in question, if permission of Custom Authority is necessary in case of sale of unclaimed goods, it is between Port Authority and Custom Authority. First time the letter was written to the Customs Authorities for clearance only in June 1997. For sale of cargo in question, if permission of Custom Authority is necessary in case of sale of unclaimed goods, it is between Port Authority and Custom Authority. If permission is not given within reasonable time or permission is not obtained by Port Authority from Custom Department within reasonable time, how petitioners are responsible for such delay? ( 31 ) LEARNED counsel for the Port Trust Authorities also brought to my notice that Port Trust Authority cannot take possession of the cargo so long the cargo remained in containers. He drew my attention to bye-law No. 55c of the Port of Calcutta vide case No. 440. The relevant Bye-law No. 55 C which reads as under:-"by-LAW No. 55c-Receipts for cargo contained in imported containers- The Trustees shall not accept custody of nor give any receipt for nor be responsible in any manner whatsoever in respect of any goods or cargo landed from any vessel in containers, except when such goods are unstuffed from the container by the Master, Owner or Agent of the vessel are directly received in a transit shed or a warehouse assigned for the purpose by the Traffic Manager or his authorised Officers. " ( 32 ) WHEN under the Bye-law Port Trust cannot accept the custody of the cargo in the container unless it is unstuffed from the container how it can sell the cargo in container? First time on 14th June 1997, request has been made by the petitioners to the respondent's port authorities for destuffing of the cargo from the containers. Therefore, before 14th June, 1997 when in the custody has not been taken by the port authorities under bye-laws there is no question of sale of that cargo by the port authorities under section 61 or 62 of the Act 1963 and even after the custody of cargo taken by the Port Trust authorities, they cannot sell the cargo without prior permission of the Customs Authorities. Therefore, even after the application of the petitioner dated 14th June, 1997 to destuff the cargo from the container and to take the permission from the Customs Authority some reasonable period is to be allowed to the port authorities for release of containers. Therefore, even after the application of the petitioner dated 14th June, 1997 to destuff the cargo from the container and to take the permission from the Customs Authority some reasonable period is to be allowed to the port authorities for release of containers. ( 33 ) IN the case in hand the containers are released as per direction of the court under an order dated 23. 9. 98, whereby the Court has directed that release the containers in case petitioner pay the charges for the period until June, 1997 and also furnished a bond for payment of amount against port charges and final liability of payment will be subject to decision in writ petition. ( 34 ) THEREFORE, the petitioners have paid the demurrages until for the period of June, 1997. As the first time petitioner requested for destuffing of cargo from the containers vide letter dated 14th June, 1997. After the letter of petitioners for destufing the cargo from the containers and to sell the cargo for recovery of the demurrage charges and other port charges, some procedure is to be followed. Therefore after letter from petitioners in June some reasonable time is to be allowed to port authority to complete this procedure. Till then the petitioners are liable for payment of port charges for the use of port premises. In my view two months period is just and reasonable to complete that procedure. ( 35 ) IN the result the petitioners are directed to pay port charges including the demurrage charges for the period until 14th August 1997. The petitioners have already paid the demurrage charges until 14th June, 1997. In compliance of my order dated 23. 9. 1998, the petitioners are further directed to pay the balance amount against port charges including the demurrage charges for the period from 15th June till August 1997, within two months. ( 36 ) IN this case as stated above importer has not claimed the cargo. Therefore how cargo will be disposed of is matter between Port Authority and Custom Department. Petitioners have nothing to do with the cargo. Therefore, for the period after 14th August 1997 if port authority is entitled for any port charges that can be charged by sale of cargo or can be charged from customs authority, in accordance with law. Consequently, the petition is partly allowed. Petition partly allowed.