PRANAB KUMAR CHATTOPADHYAY, J. ( 1 ) THE steps taken by the Port Trust Authorities, Kolkata regarding sale of the imported goods of the petitioner-company as uncleared/unclaimed cargo in terms of Sections 61 and 62 of the Major Port Trusts Act have been challenged in this Writ Petition. ( 2 ) THE petitioner-company imported three consignments of copper scrap in six containers through Haldia Dock Complex. Even though the petitioner-company is carrying on business at Nepal but for import and / or export of goods through sea, it has to depend on the Ports of India due to geographical reason. Since Nepal is a land-locked country, petitioner company uses territory of India as corridor for transit facility through Ports. ( 3 ) BY a treaty between the Government of Nepal and the Government of India, a traffic-in-transit facility has been accorded to the goods imported and/or exported by Nepalese citizen or a company. In the present case, petitioner has imported the goods for transit to Nepal and the goods arrived at Haldia Port for its ultimate destination to Nepal. ( 4 ) THE petitioner-company appointed one M/s. Kapur and Co. as the clearing agent but according to the petitioner, the said clearing agent failed and/or neglected to take adequate steps for clearing the cargo of the petitioner-company and transportation of the goods to Nepal, which resulted in huge demurrage charges. ( 5 ) THE petitioner ultimately filed an application before the Port Trust authorities for waiver of the demurrage charges in respect of the aforesaid imported goods. It has been alleged that during the pendency of the aforesaid application for waiver of the demurrage charges before the Port trust authorities, steps were taken for sale of the aforesaid imported goods even without serving any notice to the petitioner company. !t has also been submitted on behalf of the petitioner company that presently, the petitioner is ready and willing to pay necessary charges as per direction of the Port trust authorities. ( 6 ) IT has been specifically submitted on behalf of the petitioner company that the Customs House Agent appointed by the petitioner did not act properly for removal of the goods to Nepal and the said Clearing Agent even did not take any step for shifting the goods in the area earmarked for nepal cargo within the Port area where no demurrage is required to be paid. ( 7 ) FROM the records it appears that the petitioner company made a representation before the Chairman, Kolkata Port Trust on 11th February, 2004 for waiver of demurrage charges so that the goods could be taken to nepal without further delay. Thereafter, further applications were submitted on behalf of the petitioner company before the Port Trust authorities on march 2, 2004 and March 19, 2004. ( 8 ) IT has been urged on behalf of the petitioner company that the Port trust authorities neither raised any billtowards the Port rent i. e. demurrage charges nor served notice upon the petitioner company for removal of the goods under Section 62 (1) of the Major Port Trusts Act. The provisions of sections 61 and 62 of the Major Port Trusts Act, 1963 are quoted hereinbelow :-"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 writing, 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, or (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 of 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 Gazettee, in the Official Gazette] and also in 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. (3) If the address of the owner of the goods has been stated on the manifest of the goods or in any of the documents which have come into the hands of the Board, or is otherwise known, notice shall also be given to him by letter delivered at such address, or sent by post, but the title of a bona fide purchaser of such goods shall not be invalidated by a reason of the omission to send such notice, nor shall any such purchaser be bound to inquire whether such notice has been sent. (4) Notwithstanding anything contained in this section, arms and ammunition and controlled goods may be sold at such time and in such manner as the Central Government may direct. "" 62. Disposal of goods not removed from premises of board within time limit.- (1) Notwithstanding anything contained in this Act, where 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. "" 62. Disposal of goods not removed from premises of board within time limit.- (1) Notwithstanding anything contained in this Act, where 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 nonth from the date on which such goods were placed in their custody, the Board may, if the address of such owner or person is known, cause a notice to be served upon him by letter delivered at such address or sent by post, or if the notice cannot be so served upon him or his address is not known, cause a notice to be published [the Port Gazette or where there is no Port Gazette, in the Official Gazette] and also in at least one of the principal local daily newspapers, requiring him to remove the goods forthwith and stating that in default of compliance therewith the goods are liable to be sold by public auction [or by tender, private agreement or in any other manner] : provided that where all the rates and charges payable under this Act in respect of any such goods have been paid, no notice of removal shall be so served or published under this sub-section unless two months have expired from the date on which the goods were placed in the custody of the Board. (2) The notice referred to in sub-section (1) may also be served on the agents of the vessel by which such goods were landed. (3) If such owner or person does not comply with the requisition in the notice served upon him or published under sub-section (1), the board may, at any time after the expiration of two months from the date on which such goods were placed in its custody, sell the goods by public auction after giving notice of the sale in the manner specified in sub-sections (2) and (3) of Section 61. (4) Notwithstanding anything contained in sub-section (1) or sub-section (3)- (a) the Board may, in the case of animals and perishable or hazardous goods, give notice of removal of such goods although the period of one month or, as the case may be, of two months specified in sub-section (1) has not expired or give such shorter notice of sale and in such manner as, in the opinion of the Board, the urgency of the case requires ; (b) arms and ammunition and controlled goods may be sold in accordance with the provisions of sub-section (4) of Section 61. (5) The Central Government may, if it deems necessary so to do in the public interest, by notification in the Official Gazette, exempt any goods or classes of goods from the operation of this section. " ( 9 ) IT has been submitted on behalf of the petitioner company that while pursuing its application for waiver of demurrage charges in the office of the Kolkata Port Trust, the representative of the petitioner company came to know for the first time on March 26, 2004 that the goods of the petitioner company had been put up for sale in auction on February 26, 2004 although no notice was served upon the petitioner company in terms of Sections 61 and 62 of the Major Port Trusts Act. ( 10 ) THE petitioner company challenged the aforesaid steps taken by the Port Trust authorities by filing the present writ petition upon notice to the respondents. ( 11 ) ON March 29, 2004, this Hon'ble Court passed an interim order restraining the Port Trust authorities from giving physical delivery of the goods in question till April 2, 2004 or until further order whichever is earlier. Thereafter on March 31, 2004 the aforesaid interim order passed on March 29, 2004 was extended on the condition that the petitioner should furnish bank guarantee of Rs. 40 lakhs within a fortnight from the date and the Port authority was also directed to consider the petitioner's application for waiver of demurrage charges within a period of three weeks from the date of communication of the aforesaid order. 40 lakhs within a fortnight from the date and the Port authority was also directed to consider the petitioner's application for waiver of demurrage charges within a period of three weeks from the date of communication of the aforesaid order. ( 12 ) AS the petitioner company was a foreign company and the nationalised banks have been restrained by the Reserve Bank of India from issuing any guarantee to the foreign national, the petitioner applied for modification of the aforesaid order before this Court and in terms of the subsequent order dated 4th May, 2004 a pay Order of Rs. 40 lakhs was made over by the petitioner company to the Port Trust authorities which was duly accepted by the said authorities. ( 13 ) THE Board of Trustees for the Port of Kolkata thereafter, passed an order on the appeal of the petitioner company for waiver of demurrage charges on 23rd August, 2004 which was forwarded to the petitioner company under the signature of the Chairman, Kolkata Port Trust. According to the petitioner company, no step could be taken for release of the aforesaid goods in compliance with the aforesaid order dated 23rd August, 2004 passed by the Board of Trustees for the Port of Kolkata in view of the subsisting interim order passed by this Court restraining the Port Trust authorities and/or its officials from giving physical delivery of the goods in question. ( 14 ) IT has been submitted on behalf of the respondent Kolkata Port trust authorities that no notice was served upon the writ petitioner before putting up the goods for sale as the address of the writ petitioner given in the manifest did not disclose who was the ultimate party to take delivery of the goods from the Port Trust authorities. The learned Counsel of the respondent Port Trust authorities further submits that a combined notice under Sections 61 and 62 of the Major Port Trusts Act was served upon the steamer agent of the ship which brought the goods and unloaded the same at the port. The learned Counsel of the respondent Kolkata Port Trust authorities also submits that non-service of the notice upon the petitioner company cannot invalidate the sale effected by the Port Trust after publication of notice in this regard in the newspapers and Calcutta Gazette in terms of the provisions of Section 61 of the Major Port Trusts Act. The learned Counsel of the respondent Kolkata Port Trust authorities also submits that non-service of the notice upon the petitioner company cannot invalidate the sale effected by the Port Trust after publication of notice in this regard in the newspapers and Calcutta Gazette in terms of the provisions of Section 61 of the Major Port Trusts Act. ( 15 ) MR. Roy Chowdhury, learned Counsel of the Kolkata Port Trust authorities urged before this Court that the bona fide purchasers are not concerned witht he service of notices nor are they under an obligation to enquire whether such notices were sent in compliance with the provisions of Section 61 (3) of the Major Port Trusts Act before purchasing the goods at the auction/tender. ( 16 ) MR. P. K. Das, learned Senior Counsel appearing on behalf of one of the added respondents, namely, M/s. Surajmal Baijnath Industries Private limited submits that as soon as the Kolkata Port Trust accepted the offer of his client alongwith the amount of earnest money and issued the sale order, the title of the goods passed to his client although the goods are yet to be delivered. Mr. Das further submits that the writ petitioner wilfully and deliberately did not clear the consignments in question and therefore, any decision of the Port Trust authorities regarding waiver of the demurrage charges will cause heavy financial loss to the Government exchequer. Mr. Das also submits that Sections 53, 61 and 62 of the Major Port Trusts Act, 1963 are quite independent of each other and are not interlinked or interconnected. ( 17 ) ACCORDING to Mr. Das, the present case specifically comes under the provisions of Section 61 and the provisions of Section 62 have no application to the facts and circumstances of the case. ( 18 ) REFERRING to the application filed by the petitioner-company under section 53 of the Major Port Trusts Act, Mr. Das submits that the petitioner-company is not really in a position to get any relief although the Board of trustees for the Port of Kolkata passed an order in favour of the petitioner-company in this regard. Mr. ( 18 ) REFERRING to the application filed by the petitioner-company under section 53 of the Major Port Trusts Act, Mr. Das submits that the petitioner-company is not really in a position to get any relief although the Board of trustees for the Port of Kolkata passed an order in favour of the petitioner-company in this regard. Mr. Das also referred to the subsequent application submitted on behalf of the petitioner-company regarding grant of instalments for payment of the reduced demurrage charges and submits that the petitioner- company was never ready and willing to take delivery of the goods due to shortage of necessary funds. ( 19 ) MR. pas further submits that under Section 53, only in special cases, waiver or reduction of demurrage charges can be granted to an importer and in the facts of the present case, according to Mr. Das, no such special case has been made out and furthermore, the application was made by the petitioner-company after a considerable lapse of time which cannot be ignored. ( 20 ) MR. Moloy Chakraborty, learned Counsel appearing on behalf of another added respondent, namely the respondent No. 8, submits that the petitioner-company herein is not entitled to any discretionary relief in the present proceeding in view of delay and/or laches on the part of the said petitioner-company. Mr. Chakraborty submits that the Port Trust authorities have rightly exercised their statutory right for holding auction of the imported goods of the petitioner-company as the rates and rents were not paid by the petitioner-company within two months in terms of Section 61 of the major Port Trusts Act. ( 21 ) MR. Chakraborty further submits that the writ petitioner herein has neither challenged the publication of the notice for holding auction nor took any step to stop the sale of the aforesaid imported goods of the petitioner-company by the Port Trust authorities. According to the respondent No. 8, the petitioner-company approached this Hon'ble Court after the conclusion of the sale and full payment of the sale price by the said respondent No. 8. Mr. Chakraborty also submits that the title of the goods have already passed to the respondent No. 8 after payment of the sale price even though the goods have not yet been delivered. ( 22 ) MR. Mr. Chakraborty also submits that the title of the goods have already passed to the respondent No. 8 after payment of the sale price even though the goods have not yet been delivered. ( 22 ) MR. Chakraborty however, referred to and relied upon various decisions of the Hon'ble Supreme Court in support of his aforesaid contentions but in my view, those are not at all relevant for deciding the real issue involved in this case. ( 23 ) THE learned Counsel of the respondent No. 5 submits that the customs authority has no objection if the Nepalese importer, namely the petitioner-company herein, takes delivery of the imported goods and despatches the same to Nepal after observing all the formalities prescribed in the Indo-Nepal Treaty. ( 24 ) IN the present case, no notice was admittedly served upon the petitioner-company before putting up the goods for sale by the authorities of the Kolkata Port Trust. ( 25 ) IN my view, the conditions laid down in the Major Port Trusts Act should be fulfilled before taking any step for sale of goods under Section 61 of the said Act. ( 26 ) ALTHOUGH it has been submitted on behalf of the Kolkata Port Trust authorities that a combined notice under Sections 61 and 62 of the Major port Trusts Act was served on the steamer agent but no attempt was made by the said authority to serve notice upon the owner of the consignments, namely the petitioner-company. Admittedly, the relationship of the petitioner- company with its Customs House Agent was not cordial and as a matter of fact, the petitioner-company had to file a suit against its agent wherein the kolkata Port Trust was a proforma respondent. ( 27 ) HAVING heard the learned Counsel appearing for the parties and scrutinising the documents available before this Court, I am satisfied that the petitioner-company had no knowledge in respect of the steps taken by the Kolkata Port Trust authorities for holding auction of the aforesaid goods of the petitioner-company in terms of Section 61 of the Major Port Trusts act. Furthermore, the Board of Trustees for the Port of Kolkata did not pass the necessary order on the application filed by the petitioner-company under section 53 of the Major Port Trusts Act regarding waiver of demurrage charges before taking steps for sale of the said imported goods of the petitioner-company and undisputedly during the pendency of the aforesaid application filed by the petitioner-company under Section 53 of the Act, respondent authorities of the Kolkata Port Trust took steps for sale of the aforesaid imported goods by holding auction. ( 28 ) THE Board of Trustees for the Port of Kolkata in terms of the order passed by this Hon'ble Court on March 31, 2004 however, passed the order allowing the application of the petitioner-company regarding waiver of the demurrage charges on August 23, 2004. By the said order, petitioner- company was allowed to take delivery of the goods upon payment of rent. The said order of the Board dated August 23, 2004, by necessary implication, set aside the sale intended in favour of the aforesaid two intending purchasers. In view of the order passed by the Board on August 23, 2004, it can be construed that Port has recalled its order of sale. ( 29 ) SECTION 61 (1) of the Major Port Trusts Act provides for the demand of Port Rent. In terms of the aforesaid provision, Port Trust authority can direct the owner to pay Port Rent and remove the goods. If the owner of the goods does not pay the Port Rent within the stipulated time after issuance of the demand by the Port Trust authority then only it can be said that the owner of the cargo did not pay Port Rent. Before taking steps in respect of sale of goods under Section 61 of the Act, competent authority of the Port is required to assess outstanding Port Rent and levy the same. In the present case, there was no assessment till the matter was adjudicated by the Board of Trustees on 23rd August, 2004. Section 61 (3) of the Act can be invoked in respect of the goods where Port Rent has been assessed and has not been paid. If there is no assessment, there is no levy and nothing is payable. In the present case, there was no assessment till the matter was adjudicated by the Board of Trustees on 23rd August, 2004. Section 61 (3) of the Act can be invoked in respect of the goods where Port Rent has been assessed and has not been paid. If there is no assessment, there is no levy and nothing is payable. Condition precedent for invocation of Section 61 (3) is that there should be a default in payment of rates which means there should be a demand asking payment of rent and which has not been paid. Where there is no assessment, there cannot be any demand of rent, and therefore, there is no liability to pay and consequently, goods cannot be put up for sale under Section 61 of the Major Port Trusts Act, 1963 as it cannot be said that rates payable to the Board have not been paid. ( 30 ) FURTHERMORE, Port Trust Authorities cannot take any step regarding the sale of the goods without serving proper notice upon the owner of the goods in terms of the provisions of Major Port Trusts Act. ( 31 ) IN the present case, prior to the impugned sale there was neither any assessment of rates and levy and/or demand towards Port Rent nor any notice of demand was issued to the petitioner. Unfortunately, the respondents Port Trust Authorities herein took steps regarding sale of the imported goods of the petitioner by holding auction even without intimating the same to the said petitioner although the petitioner-company is undisputedly the owner of the said goods. Therefore, the goods in question could not have been put up for sale in terms of the provisions of Sections 61 and 62 of the Act. The aforesaid illegalities and/or irregularities thus vitiate the sale of the imported goods of the petitioner-company. ( 32 ) SCRUTINISING the provisions of Sections 61 and 62 of the Major port Trusts Act, I am of the opinion that the protection under Section 61 (3) of the said Act is limited to omission to send notice under Section 61 (2) of the Act. Protection of Section 61 (3) of the Act cannot be extended to unauthorised sale where there are no dues payable to Port or where two months have not passed after discharge of the goods or where proper notice under Section 62 (1) has not been issued. Protection of Section 61 (3) of the Act cannot be extended to unauthorised sale where there are no dues payable to Port or where two months have not passed after discharge of the goods or where proper notice under Section 62 (1) has not been issued. The added respondents are therefore, not entitled to seek any protection under Section 61 (3) of the major Port Trusts Act. ( 33 ) IN any event, it has been specifically mentioned in the tender condition that a Traffic Manager may without assigning any reason cancel the sale. The relevant provisions in the Tender condition is quoted hereunder :- "the Traffic Manager may without assigning any reason, cancel the sale of such of Lot. In such cases, the amount deposited by the respective purchaser will be refunded without interest and such purchaser will not be entitled to any compensation whatsoever. " ( 34 ) FOR the reasons mentioned hereinbefore, the goods in question could not have been put up for sale in auction and therefore, the steps taken by the Port Trust authorities in this regard were totally unauthorised and illegal. Accordingly, the sale of the imported goods of the petitioner- company by holding auction by the respondents Port Trust authorities cannot be sustained and the same is therefore, quashed. ( 35 ) IN the aforesaid circumstances, the added respondents will have no claim over the aforesaid imported goods of the petitioner-company. ( 36 ) THE respondent Kolkata Port Trust authorities are directed to take immediate appropriate steps for delivery of the goods in question to the petitioner-company within 15 days from the date of communication of this order subject to payment of demurrage charges as mentioned in the order dated 23rd August, 2004 passed by the Board of Trustees for the Port of kolkata and without demanding any no objection certificate from the aforesaid intending purchasers, namely, the added respondents herein. Needless to mention that if the petitioner-company herein fails to take delivery of the goods in question in terms of this order within the time mentioned hereinabove, then the authorities of the Kolkata Port Trust will be at liberty to deal with the goods in question in terms of the aforesaid order dated 23rd August, 2004 passed by the Board of Trustees for the port of Kolkata. ( 37 ) WITH the aforesaid observations and directions, this Writ Petition stands disposed of. ( 37 ) WITH the aforesaid observations and directions, this Writ Petition stands disposed of. ( 38 ) THERE will be, however, no order as to costs. All parties concerned are to act on a xerox signed copy of this judgment and order on the usual undertaking. Later-After pronouncement of the judgment, learned Counsel of the added respondents prays for stay of the operation for the judgment and order. I find no reason to grant such stay. Accordingly, the prayer for stay is refused.