BHASKAR BHATTACHARYA, J. ( 1 ) THIS mandamus-appeal is at the instance of a writ-petitioner and is directed against the order dated 19th march, 2001 passed by the learned Single Judge thereby dismissing the writ-application. ( 2 ) IN the writ-application, the appellant prayed for direction upon the port Trust Authority to withdraw and cancel the revision in the scale of rent appearing in the circular dated April 4, 1981 thereby imposing treble the amount of the usual rent fixed on the consignments imported by the appellant and for the refund of the same to the tune of rs. 2,74,239. 90 p which the appellant had paid to the respondents pursuant to the demand of the respondent in tune with the said circular. ( 3 ) ACCORDING to the writ-petitioner, due to stoppage of production at the factory of the appellant during the months of October, 1980 - January, 1981 and for the reasons of labour-troubles and power-shortage, the appellant was unable to release the consignments which had arrived between the months of December 1980 and February 1981. Those consignments were stored in the Custom warehouse in the port-area. The goods had been earlier removed from the Haldia Dock to the warehouse under the surveillance of the Customs authorities. The appellant claims that the Port Trust Authorities had wrongfully and illegally levied rent on the basis of penal rate, being three times the usual rent and according to the appellant, in the event of any change in the existing procedure in fixing the rate of rent, such fact must be made public and known to all concerned. The appellant contended that the circular dated April 4, 1981, had not been made public in any manner and at any rate, the same could not have any retrospective effect. The appellant asserted that the Board of Trustees under Rule 6 (i) were entitled to charge the usual rent as mentioned therein after the lapse of three rent-free-days. ( 4 ) THE writ-application was opposed by the Port Trust Authority and according to the respondents, Section 21 of the Major Port Trust Act, 1963 empowered the respondents to act on behalf of the Board of Trustees and the Port Trust Authority had levied charge at the penal rate for storage on and from April 1, 1981 in accordance with the provision contained in the circular. ( 5 ) THEREFORE, the only question that had fallen for determination before the learned Single Judge was whether on the basis of circular dated April 4, 1981 the Port Trust Authority can charge at the penal rate of three times the usual charge for storage of the goods prior to that date. ( 6 ) THE learned Single Judge, as indicated earlier, turned down the contention of the appellant and came to the conclusion that the said circular merely stated that the Chairman had approved the recovery of triple-rent on all cargoes at Haldia, if not cleared from the date of landing in spite of sufficient opportunity of clearing those goods, and the order was to take effect from April 1, 1981 but the right of the trustees to charge penal rent at the rate of three times the usual rent was already provided in the scale of pay of the Calcutta Port Trust and as such, by the said circular the existing rate was applied. The writ-application was, accordingly, dismissed. ( 7 ) MR. Banerjee, the learned counsel appearing on behalf of the appellant, however, has raiser two pure questions of law. ( 8 ) FIRST, he has contende. d that the learned Single Judge erred in holding that the existing Rules permitted the Port Trust Authority to charge the penal ren. t of three times the usual rate by totally overlooking the provisions contained in Section 52 of the Major Port Trust Act which enjoins a duty upon the Port Trust Authority to take permission of the central Govemme nt before imposing such charge at the enhanced rate. Secondly, Mr. Banerjee submits that at the most, the charge could be effective from storage of goods after April 4, 1981, the date of the circular. ( 9 ) MR. Majumdar, the learned counsel appearing on behalf of the Port trust Authority opposed the aforesaid contentions of Mr. Banerjee and submitted that the existing scale of rate, which has been already published in the Calcutta Gazette on 30th June, 1975 with due permission of the central Government, itself provides for penalty at tire rate of three times the existing rate in the situations mentioned therein. Mr. Majumdar, in this connection, relied upon Section 6 of the said scale. ( 10 ) TO appreciate the aforesaid contention put forward by Mr. Mr. Majumdar, in this connection, relied upon Section 6 of the said scale. ( 10 ) TO appreciate the aforesaid contention put forward by Mr. Majumdar, it win be appropriate to refer to the provision contained in Section 6, which is quoted below: "section 6 -RENT.- A- Imports goods are rent free for three clear working days after the date of landing. Sundays, days declared by the Trustees as public holidays and days on which the Customs Treasury is closed are not counted as working days. When goods are landed on a day that is not a working day, the landing date is taken to be the next working day. Goods not removed by the evening of the third working day are charged rent from the following day at the rates given in the schedule below whether that day is or is not a working day. (ii) On cases of wines including those received in damaged condition, rent free time counts from the date of receipt in the wine godown provided that in case of damaged cases of wines removal instructions are filed within the free time as computed under (i) above. (iii) On goods for despatch by Railway or removal to the Trustees' warehouses, rent is charged at the rates given in the Schedule below upto the date of loading of the cargo into wagons or of removal of cargo. (iv) On all goods received by the Trustees in a damaged condition and for which a claim is preferred against the Steamer Agents, rent is not charged until the fifth clear working day after the day of landing provided that notice of survey is given to the docks Manager or Superintendent, Jetties and Wharves, as the case may be, within two clear days after the goods have been landed. This concession is also given whenever General Average has been declared provided that written notice of declaration is given to the Trustees by Steamer Agents before any goods are landed from the vessel. (v) On goods landed in a good Condition but subsequently damaged for which an application for survey is received by the Docks manager or the Superintendent, Jetties and Wharves, as the case may be, within five clear working days, no rent is charged after the date of landing upto the second clear working day after the date on which survey is held by the Trustees. (vi) On general Import cargo sold by public auction by the Trustees, rent will be charged at the rates given in the schedule below on the expiry of a free time of three clear working days after the day the goods are available for delivery. The Trustees reserve to themselves the right to charge three times the rates given in the schedule below on any goods which in their opinion could have been removed from their premises before rent was incurred. " Schedule No. Description of goods Charges per Rates Rs -P. Bale per day 0. 90 1. Cotton, cotton yarn waste, jute, hemp, all other fibres , wool, cotton piece, goods and all kinds of cotton twist and yarn in bales 2. Horse Boxes Each per day 11. 80 3. Motor vehicles, bodies, chassis, earth moving and similar equipment not in cases and not heavy lifts Do 59. 00 4. Sugar in bags, rice, wheat, all other cereals, pulses, seeds including ground nut kernel, all flour and atta Tonne per week 1. 90 5. Salt (i ) Tonne per day for the first 3 days (ii) Tonne per day for the fourth and subsequent days 0. 25 0:70 6 (A) AD other goods on which the landing charge is levied by weight- (a) goods other than heavy lifts (i ) Tonne per day far the first three days 4:30 (ii) Tonne per day from the 4th to the 6th day 5:90 (iii) Tonne per day lor the 7th and subsequent days 7:10 (b)heavylifts (on each package) (i ) Tonne per day for the first 3 days 9:40 (u) Tonne per day from the 4th to the 6th day. 11:80 (iii) Tonne per day for the 7th and subsequent days. 14:20 6 (B) All other goods on which the landing chargwe is levied by measurement (i ) Cu. Metre per. day for the first 3 days. 3:80 (ii)Cu. Metre per day from the 4th to the 6th day 4:70 5:90 (iii) Cu. Metre per day for the 7th and subsequent days. On unmanifested cargo, rent is charged at the schedule rates given above from the date of delivery of the out-turn report if the goods are not cleared within five clear working days after delivery of the out-tern report to the vessels' Agents. Metre per day for the 7th and subsequent days. On unmanifested cargo, rent is charged at the schedule rates given above from the date of delivery of the out-turn report if the goods are not cleared within five clear working days after delivery of the out-tern report to the vessels' Agents. No rent is charged an goods detained by the Customs authorities for special examination and chemical test under Section 17 of the. Customs Act 1962, from the actual date of detention up to the fast clear working day after the date of release of the goods by the Customs provided. ate detention is certified by the Collector of Customs to be not attributable to any fault or negligence on the porl of the importer. No rent is also charged on goods when the removal of such, goads is delayed through no fault or negsgence on the part of the importers owing to the reasons specified in column 2 of the schedule below Jar such periods and subject to such conditions as are specified in column 4 thereof. Schedule Reasons for delay Rate of vent to be charged No. Period. 1 Detention of Packages by the Police under the No rent From the date of detention or the date of filing of May Challan whichever is later upto the seventn clear working day after the date off advice of the lifting of the restriction. Criminal Procedure Code. 2 Goods not traceable when delivery was applied for in reject of which a "not found" remark was made. No rent From the day following the date on which the "not fraud" remark was made upto the first dear working day after the date it was found if traced within a week and upto the seventh dear working day after the date of advice if traced after a week No concession is admissible traced within forenoon of the day after the day on which the remark was made. 3 Goods shown as short landed in the No rent From the day following the date on which a 'not found" Out-turn Report of the vessel but subsequently traced. remark was made or from the date of issue of a' B' form whichever is earlier upto the fifteenth day from the date of advice. 4 Delay in clearance due to nonavailability of crane. remark was made or from the date of issue of a' B' form whichever is earlier upto the fifteenth day from the date of advice. 4 Delay in clearance due to nonavailability of crane. (Dummy Wharf Rent Bin will be attached to the Jetty Challan ) No rent For the period during which the crane was not available provided that an endorsement on the" Hoisting Application is obtained from the Shed Master or Shed Foreman concerned, but in the latter case, countersigned by the Inspector oil duty. The concession must be applied for prior to delivery. 5 Delay in clearance due to misdelivery No rent For period from the date following the date on which a "not-found" remark was made up to the seventh clear working day after the date of advice. 6 Goods intended for charitable purpose imported by Charitable Organisations recognised or treated as such by the Truste provided exemption has been obtained in respect of Customs duty. No rent . For the period for which rent is due. On goods detained in the Port on account of analytical tests under the Drugs Control Act and compliance with Import Trade Control formalities rent will be levied at one-sixth for the first sixty days, one third for the next thirty days, one-half for the next thirty days, and two-thirds for the next thirty days of the highest rate applicable under sub-Section A of Section 6 provided that the detention in each case is certified by the Customs. On goods the clearance of which is delayed on account of loss or misplacement of shipping documents in the Custom House, the trustees may, if they so wish, remit in whole or in part the rent charges payable under sub-Section 6a provided that the importers can substantiate the detention by production of a certificate signed by an officer not below the rank of Deputy Collector of Customs. Exception (1) - When the removal of goods is delayed through no fault or negligence on the part of the importers owing to the reasons specified in column 2 of the Schedule below, the Trustees may, if they so wish, charge rent at the rates specified in column 3, instead of the rates payable under Section 6a, for such periods and subject to such conditions as are specified in columns 4 thereof. Schedule No. Reasons for delay Rate of Rent to be charged Period 1. Schedule No. Reasons for delay Rate of Rent to be charged Period 1. Detention under injunction from court 50 per cent of rent due under Section 6a From the date of detention or the date of filing of Jetty Challan whichever is later upto the seventh clear working day after the date of advice of the lifting of the restriction. 2. Goods held up due to Railway operational restrictions and taken delivery of by gate for despatch by rail or steamer from Howrah , Sealdah or local Steamer Ghat on production of evidence. 3. Cargo intended for other Ports over carried (not ordinary transshipment cargo) landed here and subsequently transhipped. 50 per cent of rent due under Section 6a For the period detained. 50 per cent of rent as under Section 6a For the period during which the cargo was detained. The concession is given only to steamer Agents. 4 consignments of dunnage wood landed ex-vessels other than manifested cargo and if clearance is effected within a month from the date of landing. Do From the landing date upto the of delivery. ( 11 ) MR. Majumdar laid emphasis on the second paragraph of Clause (vi) of Section 6 and submitted that his client invoked the aforesaid clause and the Circular impugned herein is a mere suiplusage. ( 12 ) AFTER hearing the learned counsel for the parties and after going through the aforesaid scale of rent, we find substance in the contentions of Mr. Majumdar that the Trustees reserved to themselves the right to charge three times the rate given in the schedule on any goods which in their opinion could have been removed from their premises before the rent was incurred and such right is not restricted to Sub-clause- (vi) alone but on all the clauses viz. (i) to (vi ). ( 13 ) IN our view, such night, however, can be exercised only after giving an opportunity of hearing to the importer to explain whether the goods could really be removed before the rent was incurred, In the case before us, it does not appear from the records that the treble the usual rate was imposed on the ground that those could not be removed without just cause before the rent was incurred. It is rather clear from the records that the penalty was forced solely on the basis of circular issued on April 4, 1981 by which the Chairman had conveyed his approval to recover triple the usual rent on an cargoes; at Haldia, if not cleared within one month from the date of landing. It is, therefore, apparent that the Chairman bad no intention of considering whether in a given situation, the importer realty could remove the goods before the rent was incurred as mentioned in Section 6 of the existing rate of rent, but his peremptory decision was to impose triple the visual rent on all goods whatever may he the reason for not removing those, if not cleared, within one month from the date of landing there -by giving a go-by to the rate of rent fixed in the chart approved by the Central Government. ( 14 ) THEREFORE, the imposition of penal rent at the treble the usual rent was not imposed in terms of the discretion mentioned above in Rule 6 but purely on the basis of circular dated 4th April, 1981 which is in conflict with the rate of rent for a period of mute than one month mentioned therein. ( 15 ) WE, the before, find that on the basis of the circular dated 4th April, 1981, the Port Trust Authority decided to impose penal rent at the flat rate without ascertaining whether the importer could have removed it earlier so as to bring the case within the proviso to Section and of the exi sting scale of rent approved by the Central Government. ( 16 ) THE basis of imposition being not in conformity with the existing scale but on the basis of a totally new decision of the Chairman without taking approval of Central Government in terms of Section 52 of the Major Port trust Act was ultra vires the said Act and thus, was liable to be set aside. ( 16 ) THE basis of imposition being not in conformity with the existing scale but on the basis of a totally new decision of the Chairman without taking approval of Central Government in terms of Section 52 of the Major Port trust Act was ultra vires the said Act and thus, was liable to be set aside. ( 17 ) IN our view, in order to exercise discretion of imposition of treble the usual rent mentioned in the existing scale of rent, the Port Trust authority must ascertain from the importers whether they had any negligence or inaction for not removing the goods before the rent was incurred and after considering their explanation, if any, it can impose the penal rate of rent.- ( 18 ) IN this case, the Port Trust Authority did not try to ascertain such fact and on the other hand, on the basis of the circular dated 4th April, 1981, simply because the goods were not removed within one month from the date of landing, decided to charge the penal rent which is unauthorized having been enforced without taking prior consent of Central Government in terms of Section 52 of the Major Port Trust Act. . ( 19 ) WE, thus, set aside the imposition of penalty and hold that realization of the amount of Rs. 2,74,239. 90 p. was illegal. As by virtue of an interim order, the appellant has already got back that amount one furnishing Bank guarantee, the same is not required to be renewed. ( 20 ) THE appeal is, thus, allowed. The order impugned is set aside. In the facts and circumstances, there will be, however, no order as to costs. Appeal allowed.