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2006 DIGILAW 128 (CAL)

NOOR ALAM v. CALCUTTA FORT TRUST

2006-03-02

JAYANTA KUMAR BISWAS

body2006
JAYANTA KUMAR BISWAS, J. ( 1 ) THIS writ petition dated April 7, 2000 was taken out praying for an order directing the Port Trust to release the petitioner's motor vehicle AS-13/0505. ( 2 ) ON the basis of a valid permit issued by the competent authority, in terms of the by-laws of the Port of Calcutta (No. 206 dated July 22, 1948), the vehicle was being used within the port area in the month of October 1990. It was working for one M/s. United forwarding Agency, a custom's house agent. On October, 16, 1999 it got involved in an accident. At the time of discharging the logs from the vessel onto the trailer of the vehicle one log fell on a bollard and smashed it. Consequently the port trust detained the vehicle. ( 3 ) THEREAFTER it called upon the forwarding and clearing agent to take steps for payment of Rs. 1,60,474/- on account of charges necessary for repairing the damaged bollard. The clearing and forwarding agent by letter dated November 10, 1999 called upon the consignee (Mascot Woodcrafts Private Limited) to instruct the transporter to clear the charges and get the vehicle released. A copy of that letter was sent to one Shanti Enterprises. By a legal notice dated November 12, 1999 the petitioner (he was the owner of the vehicle) called upon the Port Trust to release the vehicle. It was alleged that the vehicle had been wrongfully detained, because the accident had taken place because of negligence on the part of mem bers of the staff of the Port Trust arid 'the dock labour board. Since the vehicle was not released, he took out the present writ petition. ( 4 ) BY order dated May 17, 2000 the Port Trust was directed to release the vehicle on the condition that the petitioner should secure the demanded amount by submitting a bank guarantee. I am told that the vehicle was released, and that the bank guarantee was submitted for the amount in question. ( 5 ) ADVOCATE argues that the petitioner could not be made liable for the damage, if any, caused to the property of the Port Trust because of the fall of the log. He says that the forwarding and clearing agent was responsible for the entire work, and hence the liability if any, was to be discharged by that agent. ( 5 ) ADVOCATE argues that the petitioner could not be made liable for the damage, if any, caused to the property of the Port Trust because of the fall of the log. He says that the forwarding and clearing agent was responsible for the entire work, and hence the liability if any, was to be discharged by that agent. He says that the vehicle of the petitioner was hired by the forwarding and clearing agent. ( 6 ) THE position is disputed by advocate for the Port Trust. By referring me to the letter of the forwarding and clearing agent dated November 10, 1999 (annexure 'h' to the writ petition) he says that the consignee engaged the carrier and the carrier engaged the petitioner for the work in question. He produces a copy of the permit that was issued to the petitioner so that he could engage his vehicle within the port area. ( 7 ) FACING with the situation, advocate for the petitioner says that copy of the permit was not annexed to the opposition. He, however, finds little to say about the genuineness of the document bearing the petitioner's signature. In the circumstances, he argues that in the absence of any mode of determination mentioned in the permit, the Port Trust was not authorized to determine any amount on any account. ( 8 ) FOR this he cites to me a Single Bench decision of this Court in Sri Surendra Kumar Ray Chowdhury v. The Collector of Calcutta and Ors. reported at 1985 (1) CLJ 332, holding that in the absence of a right given by the contract for adjudication, the authority would not possess the power to determine the liability of the private party. He says that, if at all, the Civil Court could have determined the liability of the petitioner arising out of the accident in question. ( 9 ) HE has given me the single bench decisions in Amal Kumar Ghosh v. The State of West Bengal, reported at 2003 (2) CLJ 155 : ( AIR 2004 Cal 148 ) and Ashok Kumar Singh v. State of West Bengal, reported at 2003 (4) CHN 496 : ( AIR 2004 Cal 46 ) (holding in both that no authority possesses power to deprive a person of his property without due process of law ). ( 10 ) ADVOCATE for the Port Trust cites to me the Apex Court decision in Muga Bay Sikkim Corporation v. Board of Trustee, Port of Cochin, reported at AIR 1997 SC 544 , and submits that the principles which are applied for determining liability of a vessel causing any damage to any property of the board would apply to the present case. ( 11 ) I am unable to agree with advocate for the petitioner that since the terms and conditions of the permit granted to the petitioner did not mention the method of determining the liability, in case of damage to any property of the Port Trust caused or by through the vehicle, the Port Trust was not empowered to determine the liability. In my view, according to terms and conditions of the permit, granted under by law 4-B of the by-laws mentioned before, the Port Trust possessed the requisite power and authority to assess the damage and determine the amount payable by the petitioner. ( 12 ) IT was mentioned in the permit that any dispute about its working and also all question arising in connection therewith, would be decided by the traffic manager of the Port Trust, and that his decision should be final and binding. As a result, against the demand made by the Port Trust, the petitioner was at liberty to approach the traffic manager raising the dispute. ( 13 ) I do not find any reason to accept the case of the petitioner that the liability could not have been imposed on him. I also do not say that he was the person liable to pay the amount demanded by the Port Trust. The question was to be decided, if a dispute was raised by the petitioner, by the traffic manager of the Port Trust. In the absence of a dispute raised, the Port Trust, in my view, was entitled to impose the liability on the petitioner. The authorities given to me in my reading and understanding do not improve the case of the petitioner. ( 14 ) IN the present case, the terms and conditions of the permit empowered the Port Trust to assess the amount payable because of damage to its property caused by or through the vehicle concerned. The by-laws also empowered the authorities of the Port Trust to detain the vehicle unless the demanded amount was paid. ( 14 ) IN the present case, the terms and conditions of the permit empowered the Port Trust to assess the amount payable because of damage to its property caused by or through the vehicle concerned. The by-laws also empowered the authorities of the Port Trust to detain the vehicle unless the demanded amount was paid. It therefore cannot be said that the vehicle was detained without any authority of law. In this context provisions of the Major Port Trusty Act, 1963 should be kept in view. I therefore do not find anything wrong with the steps taken by the Port Trust regarding detention of the vehicle. ( 15 ) FOR these reasons I do not find any merit in the writ petition. It is accordingly dismissed. Since the vehicle was released in terms of order of this Court, I give liberty to the Port Trust to encash the bank guarantee. I, however, make it clear that encashment of the bank guarantee will be subject to the result of any dispute, if raised by the petitioner in terms of provisions in para 11 of the permit, on the strength whereof he was using the motor vehicle for the work in question. Nothing in this order shall, however, prevent the petitioner from raising such a dispute with the traffic manager of the Port Trust. Needless to say that if a dispute is raised within a reasonable period, then the traffic manager shall give his decision in accordance with law. There shall be no order for costs in the writ petition. ( 16 ) ADVOCATE for the petitioner prays for stay. I have dismissed the writ petition. So what he wants me to do is to make an interim order restraining he authorities from encashing the bank guarantee. In my view, after dismissing the writ petition, I should not make any restraint order. Hence I am unable to give any relief to the petitioner. Petition dismissed.