Kalyan Jyoti Sengupta, J.:— By this writ application, the petitioners have prayed for writ of mandamus directing the respondents to destuff two containers Nos. VMLU 330004 and VMLU 3304430 which contained 430 bags of Damarbatu weighing 30,000 Kgs and to deliver the said two containers after destuffing, refund of a sum of Rs. 1,29,267/- realized by the Port on account of demurrage charges in relation to the said two containers and further not to charge any demurrage charges in relation to the said two containers. The short fact of the case which led to filing of this application is stated hereunder:

First petitioner claims to be the agent of one M/s. Vasco Maritime Private Ltd., a Singapore based Company. This Company is a non-vessel operator container carrier. On or about 13th November, 2001, a consignment consisting of 430 bags of Damarbatu weighing as mentioned above arrived at the Port of Calcutta per vessel M.V Cambodia Star in the above two containers. The said consignment was shipped from Djakarta by P.T Singeri Samudera having its Office at Graha Nampan, 2nd Floor, JL Mampang, Prapatan Raya No. 100, Djakarta-12760, in favour of one M/s. Shyam Trading, the respondent No. 5. On arrival of the said goods at the port the respondent No. 5 did not clear the same under the provisions of Customs Act, 1962, nor anybody came forward to claim the ownership of said goods. As a result, the containers could not be destuffed nor the same could be removed or cleared. The petitioners made repeated representation to the Port Authority as well as the Customs Authorities for destuffing of the containers and disposal of the goods contained therein. The respondent Authorities and each of them failed and/or refused to take steps under the provision of Customs Act, Rules and regulations framed thereunder and further the Major Port Trusts Act and the rules and regulation framed thereunder.

2. Mr. P.K Mallick, learned Senior Advocate, with Mr. Talukdar in support of the writ petition contends that their clients took all reasonable steps in order to ensure destuffing of the imported material from the said containers to take delivery of the said containers. Under the provisions of Sections 48 and 150 of Customs Act, 1962, the detail procedure has been laid down for dealing with the uncleared goods within 30 days from the date of unloading. The Customs Authorities should have taken steps for disposal of the same and not doing so either within 30 days or thereafter, unnecessary detention and demurrage charges have been allowed to accrue. Similarly under the provisions of Sections 61, 62 and 63 of the Major Port Trusts Act, 1963, the Port Authority after expiry of two months from the time when the goods had been placed in his custody should have taken steps for sale and/or disposal of the stuffed goods by public auction. Detailed procedure has been laid down under the said Section. It has been further contended that under the provisions of Uncleared Goods (Bill of Entry) Regulations, 1972, the Port Authority should have taken steps for entering Bill of Entry for dealing with and/or disposing of the unclaimed goods. There-fore, the petitioners are not at fault at all for destuffing of the containers as the same were lying in the custody of the Port Authority. The action taken against the petitioners by the Port Authorities is wholly illegal, arbitrary, without and/or excess of jurisdiction. Their further contention is that demurrage is chargeable in case of fault of a person responsible for clearance of goods from port area within free time. In support of their contention, they have relied on two Supreme Court decisions reported in AIR 1977 SC 1624 and 1987 (30) E.L.T 633 (S.C) : (1987) 1 SCC 648 : AIR 1987 SC page 622.

3. The petitioner during pendency of the writ petition has filed a supplementary affidavit stating costs and expenses incurred on account of the sale of the goods in terms of the Court's order. It is said that total expenses of a sum of Rs. 54,128/- incurred by the petitioner shall be re-imbursed out of the sale proceeds being held by the Special Officer. Mr. Suhrit Roychowdhury, Senior Learned Counsel, appearing for the Port Authority submits that it is the negligence and/or lapse of the writ petitioners as they being container agent allowed the containers to remain in the port premises from the dates of its arrival on 13 November, 2001. They did not take any step for destuffing or removal of the same, only they approached the Port Authorities for the first time on the advice of the Customs Authorities on 4 April, 2003, for destuffing the containers nearly after 17 months from the date of arrival of the containers. The Port Authority duly signified its consent to put up the content of the containers for sale on auction. No response has been received from the writ petitioner. As a result, demurrage on containers alone came to be Rs. 5,75,899/- as on 31st March, 2004, that is for two years 5 months calculated and at the rate of Rs. 681.85 per day. On account of the demurrage charges on cargo inside the containers and aggregate sum of Rs. 25,80,931/- is due as on 25 November, 2003. Thus, the Port Authorities have no fault nor any negligence for destuffing or disposal of the goods contained in the aforesaid containers. Under these circumstances, the Port Trust is entitled to recover the statutory port charges. In support of his contention the petitioners relied on the decisions of Supreme Court reported in 1995 (77) E.L.T 753 (S.C) : (1995) 3 SCC 151, (International Airports Authority of India v. Shyam International). The aforesaid decision according to him has ruled amongst others that the Board of Trustees for the Port, under the Statute, that created it, is entitled to charge demurrage even in respect of the periods during which the importer was unable to clear the goods from its premises for no fault, no negligence on its part. He further contends, taking support of another Supreme Court decision reported in 1995 (80) E.L.T 241 (S.C) : (1995) 3 SCC 730, (Trustees of Madras Port v. Nagavedu Lungi Company), that even the goods illegally detained by the Customs, liability for demurrage charges to Port Trust remains and the fact that they belonged to either importer consignee or the exporter consignee does not make any difference. The responsibility of destuffing the containers is with the importer-agent/container owner/slat hirer and the Port Trust give permission for such destuffing upon getting clearance from the Customs as under Section 45(2) of the Customs Act, the Port Trust as the custodian of the imported goods “shall not permit such goods to be removed from the Customs area or otherwise deal with except under and in accordance with the permission in writing of the proper Officer”. Under the aforesaid provision of Customs Act, he argues the goods can be sold by the custodian only on receipt of permission of the Customs Authorities.

4. He further submits that it has been held by the Division Bench of this Hon'ble Court in an unreported decision that the provisions of Section 62 of the Major Port Trusts Act is an enabling Section. It had been further held by the above judgment that Section 62 of the Major Port Trusts Act is subject to Section 48 of the Customs Act.

5. He further submits that under the Notification No. 440 dated 1 February, 1988, vide by law No. 55C of the Port Trust, the Port Authority has no right to accept the custody of the containers for the goods therein unless the same are destuffed by the Master, owner or the Agent of the vessel. He further submits that the Division Bench of this Hon'ble Court in another unreported decision held that Port Authority became statutory bailee after destuffing of the cargo from the containers and not before that. He further submits that the writ petition should be dismissed and these containers should not be allowed to be taken away or removed without paying the demurrage charges of the same. The sale proceeds should be allowed to be made over to Port Authority for adjustment of the Port dues in relation to the goods.

6. The Customs authority was served with a notice and they have not filed any affidavit in opposition, despite direction being given, nor they have come forward with any claim of duty. As such I am not in a position to hold whether the said goods imported is dutiable one or not. Actually this question has not fallen for consideration in this matter.

7. The point of controversy involved in this matter is who is at fault for accrual of demurrage charges for keeping the goods along with container at the port premises till the Special Officer appointed by this Court sold the same and the same were removed. It is settled position of the law irrespective of the fact and circumstances if the goods are not removed from the port areas the same are liable to be charged with the port duties including demurrage charges. The subject goods arrived in the port areas on 13 November, 1991 admittedly and these goods were brought in two containers owned and supplied by the superior principal of the writ petitioner. Therefore, after giving free time for removal, the goods together with container are fallen to the chargeability of the demurrage. Therefore, going by the facts it is an admitted position the port authority is the custodian of both the things. The custodian in my view is in a position of the trustee of the goods and to see unnecessary wastage and destruction of the same do not occur either in its materiality or in its vulnerability to unjust legal charges, dues.

8. In this case the importer has not come forward to claim the goods, as such the goods were not cleared from the port areas. This situation could apparently be dealt with under provision of Section 48 of the Customs Act, 1962 which is quoted hereunder:

“48. Procedure in case of goods not cleared, warehoused, or transhipped within thirty days after unloading. — If any goods brought into India from a place outside India are not cleared for home consumption or warehoused or transhipped within thirty, days from the date of 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 custody thereof:

Provided that—

(a) animals, perishable goods and hazardous goods, may, with the permission of the proper officer, be sold at any time;

(b) arms and ammunition may be sold at such time and place and in such manner as the Central Government direct.

Explanation.— In this section, ‘arms’ and ‘ammunition’ have the meanings respectively assigned to them in the Arms Act, 1959 (54 of 1959).”

9. Over and above under Section 61 of the Major Port Trusts Act, 1963 has also empowered if not cast duty upon the port authority to sell the goods if the rates and rents are not paid after two months from the time when any goods have passed into in its custody. The Section provides as follows:

“Section 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 ex-/piry 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 case as the Board considers it necessary so to do, for reason 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 goods have not been paid, or

(b) if any rent payable to the Board in respect of any place 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 charge 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 in the Port Gazette, or where there is no Port Gazette, in Official Gazette and also in at least one of the principal local daily newspaper:

Provided that in the case of animals any perishable or hazardous goods, the Board may give such shorter notice and in such mariner as, 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 time of a bom fide purchaser of such goods shall not be invalidated by 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.

Explanation.— In this section and Section 62—

(a) ‘arms’ and “ammunition” have the meanings respectively assigned to them in the Arms Act, 1959 (54 of 1959);

(b) ‘controlled goods’ means goods the price or disposal of which is regulated under any law for the time being in force.”

10. Section 62 of the above Port Act provides for disposal of the goods not removed from premises within the time limit. The said Section is reproduced hereunder:

‘Section 62. Disposal of goods not removed from premises of 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 month 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 in 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, on 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 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 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 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.”

11. Section 63 of the Port Act provides if the goods are sold by the port authority under the provisions as above, how sale proceeds thereof is to be applied or appropriated. The aforesaid two Sections are also quoted hereunder:

“Section 63. Application of sale proceeds.— (1) The proceeds of every sale under section 61 or section 62 shall be applied in the following order—

(a) in payment of the expenses of the sale;

(b) in payment, according to their respective priorities, of the liens and claims excepted in sub-section (2) of section 59 from the priority of the lien of the Board;

(c) in payment of the rates and expenses of landing, removing, storing or warehousing the same, and of all other charges due to the Board in respect thereof including demurrage (other than penal demurrage) payable in respect of such goods for a period of four months from the date of landing;

(d) in payment of any penalty or fine due to the Central Government under any law for the time being in force relating to customs;

(e) in payment of any other sum due to the Board.

(2) The surplus, if any shall be paid to the importer, owner or consignee of the goods or to his agent, on an application made by him in this behalf within six months from the date of the sale of the goods.

(3) Where no application has been made under sub-section (2), the surplus shall he applied by the Board for the purposes of this Act.”

12. It is thus, clear irrespective of the act and conduct of the importer of goods or the container owners the port authority is not only empowered but in my view is duty bound to take steps under the aforesaid provisions of the law if the goods brought are not removed within the time above, for disposal including sale of the unclaimed goods. The Port authority as being the statutory custodian of the goods brought within its premises is bound to take steps within the time as mentioned in the aforesaid Act, Rules and regulations framed contrary to the aforesaid provisions hindering from taking action are not an excuse for not taking any action. It appears that writ petitioners of course wrote letters for taking steps but the port authority with some unjustified excuse or otherwise did not take any action.

13. It is argued by Mr. Roy Chowdhry taking support of an unreported decision of this Court (Matter No. 3691 of 1999, the Chairman, C.P.T v. Star Works IPI Ltd.), and Notification No. 440 dated 1 February, 1988, that the port authority is not custodian of the goods until the same are unstuffed for taking steps under the law. I am unable to accept this argument that the port authority is helpless to take action under law even if the container owner does not arrange for unstuffing the goods. The container owner, in my view, cannot unstuff nor remove the goods from the container lying within Customs Zone at port area, unless owner or importer of the goods clear the same in accordance with law. Moreover, I do not find any restriction or embargo under the law in taking action by the port under the aforesaid provision.

14. As rightly contended by Mr. Mullick appearing with Mr. Talukdar the port authority failed and/or neglected to discharge the aforesaid statutory obligation coupled with power by not disposing and/or selling the goods after expiry of two months from the date of landing under Section 61 of the Port Act read with Section 48 of the Customs Act, 1962. Mr. Roychowdhury submits that the writ petitioner approached the port authority for the first time on the advice of the customs on 4 April, 2003 for destuffing the container after 17 months from the date of arrival of the container. This excuse is not acceptable under the law, as such I do not accept the same. The aforesaid provisions nowhere provide the consent of the owner of the goods or the containers, is required, only requirement is service of notice upon the owner of the goods or the container thereof. In spite of receipt of such notice, if either the owner of the goods or the containers would not have appeared or taken steps for removal then it was absolutely open for the port authority to sell the same, in the manner as provided under the provisions of Port Act. I agree with the submission of Mr. Mullick that the owner of the container cannot take any step within the port area. For destuffing it is absolute jurisdiction and authority of the port authority to take steps to facilitate the sale. Therefore, I think that port authority cannot avoid its statutory duty to discharge consequently losses occurred due to such failure. Had the port authority taken action under the aforesaid provision after expiry of two months from the date of arrival of the goods, subject to provision of Customs Act, there would not have been accrual of so much of demurrage under the law as the moment goods are landed at port, the port authority becomes custodian of the same. A feeble attempt had been made by the port authority that since the goods were lying in the Customs' zone in the port it was not possible for taking action. I am unable to convince myself this logic and plea as Section 48 of the Customs Act makes it clear what is to be done if the goods are not cleared by the importer nor claimed by anybody else. The methodology provided under the law is that the port authority being the custodian is to prepare a bill of entry in respect of the goods to be sold at an auction under the provisions of Uncleared Goods (Bill of Entry) Regulations, 1972.

15. There was no difficulty for taking steps, I find only difficulty was the unwillingness and/or culpable negligence of the port authority for not taking any step. Under such circumstances I hold that the port authorities is entitled to realize the demurrage charges for a period of two months in connection with the goods as well as the container. The writ petitioner is also liable to pay the demurrage charges for the containers as even after having found inaction of port authority after expiry of the free time, the writ petitioner did not take lawful action by approaching the Court.

16. Now the question remains who is to bear the demurrage charges in relation to the goods as well as container, as I find the sale proceeds is not sufficient to cover the claim of the port authority. Under the law the accrual of demurrage charges after expiry of free time is a matter of course. Law is very clear in case of failure or lapses of the port authority the question of waiver of the same may arise, but that wili depend upon the facts and circumstances of each case. I am of the view the port authority in this case is so negligent for not taking any step after expiry of two months as to disentitle it to claim demurrage charges.

17. Another question is whether the petitioner is entitled to waiver in full for the period calculated from the date of expiry of two months till the date of filing of tire writ petition or not because of negligence of port. In my view the petitioner is not entitled to get full exemption. The petitioner is also equally contributory to this negligent act. When port authority did not take step after expiry of two months from the date of arrival the petitioners merely went on making correspondences with the port authority till the date of filing of the writ petition. From examination of the documents and papers I find the petitioner's representation was received by the port authority for the first time on 4 April 2003 and before that no representation is proved to have been made.

18. Therefore, the demurrage charges accrued from the date of expiry of two months till 4 April, 2003 has to be shared equally by the port authority and writ petitioner, meaning thereby the port authority is to forego 50 per cent of the amount for the said period, while writ petitioner has to bear the rest. The demurrage charges from 5 April 2003 till the date of removal of goods after sale and till date so far container is concerned are to be waived by the port authority. I, therefore, direct the port authority to re-calculate the demurrage charges for the aforesaid period separately and adjust the dues already realized from the petitioner. I hold as rightly submitted by Mr. Mullick the petitioner is entitled to be reimbursed for all costs expenses incurred for sale of the goods in terms of the Court's order. Before such reimbursement I think the remuneration of the Special Officer and his clerk has to be paid and/or deducted out of the sale proceed first, thereafter the reimbursement is to be made to the petitioner. Accordingly I direct the Special Officer to pay a sum of Rs. 54,128/- to the petitioner on account of reimbursement of costs of sale and initial remuneration, and further direct to retain a sum of Rs. 30,000 + Rs. 3,000 on account of his final remuneration and his clerk respectively. The balance amount together with interest if accrued, shall be made over to the port authority. The port authority shall allow the container to be removed.

19. There will be no order as to costs.