THE BOARD OF TRUSTEES OF THE PORT v. M/S.GREAT EASTERN SHIPPING CO.

W.A.No.790 OF 2010 : 2 :

arelscoovcour sd

eirreecdt ebdy ttoh em by ine of the judpgamy eRnst.2 vo

, 0th,0

k0ing e l0e/a-

E

r nt xote

.P4

dth Se in

bragels npko gnudaernatnte Judge asls etoew. aApo helrdd

pse clolasntt. s I nw tehree panrodv isRioengus loation 43 that Clause 6

this appeal isf tfihleed M. ajor m Peonrtti oTnreudst Aacbto. v Iet i sa aregg riinecvoends bisyt ethnits jwuditghm etnhte, submi4ss. i oWe 5. Bnrsie m

heaadred. the counsel for the parties and have considered the

the owner of afl yv esstsaetel db,y t nhaem faec "tJs of the case are that the respondent is vPeosrste ol nw a6s. 3b.1ro9u8g8h tf oinrt om tohoer ijnegtt ya

atg tLhaex mCoi"c. h Tinhe O viels Tseelr marirnivale dJe attt yC. o cThhine Preilsopto. n d Aenftte rth athte vessel was b

eurnthdeerd ,c ompulsory pilotage of the Port

with at the time of berthing,

t thhee Pvoerstse lP iclaomt ein ifnotrom ceodn ttahcet

Malsaost e

ar f eonf dtheer avt the jetty causing damage to the fender. Thereupon, the reporlot d igneddic a n

essel arran

atinogte tohfe P droat

geesd amatg.e

AJo w

iJnao

t

sin

Stu a lS

rvueryso voe

o

by

f tawth ina

e

es

d

dcaomndaguect ceadused and. The ap paneldla tnhtetrh

s

esepreounpdoennt d aenmda npdeermd issseicounr itwya sto r etfhues etdu nteo othf e R vs.e1s0se lla ktoh ss afirlo mou tt hoef

3

W.A.No.790 OF 2010 : 3 :

Cwoacsh fiunr Pnort T6. iAshcceod r uusntd. e Undrding rt op r eort comthee rset sapn

p

od

el

n t

li

dh

negen s

circu

ta, mthee

mwsatsa knc Port aeup

es,

tth a

tlhoirv

e b

itei.

ank guarantee

manayd efforts to repair or replace the fender and in respo enss ed itdo nao qt utaekrye

Rdasm.9.

e4 5b yla tkhhesm. , Sthuebyse wquereeaged fender, n tilnyf, oirtm aepdp etahres etshtaimt iantestde acdo sotf o rfe rcetipfayiirnsg wthaes rJaepspanon adnedn tt h ienys tael

tshoe d appellants dad ofe rcided to de

emcided to import a new fender from

respondent before this Ceoctuirfitc ainti oOn.P c

ahnadrg tehse. Treplacement cost from the

the original petition, they filed Crl.M.17869/02.

h iDs wa.P.2931/94 beufroin

s gc hthaell epnegnedde bnycy t hoef

AClcats bs yM failginisgtr Eaxtet,.P E1r ncaku

re the

omplalamin itn.v oTkhiantg c Soemctpiolanin 5t7 w aansd d 5i9sp oofs JIudicial First

Magistrate by Ext.P4 order holding that the respondent e

ndd oiafn b Pyo trhtes

Rdasm.8.a5g leask hsuss ttoawinaerdd st oth teh ere fpelnadceerm aenndt caollsotw oef dth t i

eh fee nadpepre. l lIatn wt

ss tlioa brleea lfioser

ocirricguinmasl tpaentcietiso, nth waat c

as in these

7. In the judgsm hfiaele

lle

ndt.

n ging Ext.P4 and seeking the other reliefs, the reference to Section 57 o fu tnhdee Irn adpiapne aPl,o trhtse Alecat,r n1e9d0 8S,i nSgelcet iJound g1e1 6m aandde

4

W.A.No.790 OF 2010 : 4 :

1an3d1 oDfo the Major Port Trusts Act, 1963, Regulation 43 of the Cochin PortCchoacrhgines c(kQ uRaeyg uDlauteios,n sS, 1975 and Rule 6 of Chapter I of the Port of learned) SRinulgelse, 19

tream Dues, Re

Jud7g5e. Aupfther making re

nt, Hire, Demurrage and other

entertaining the complaint meladd et hbey tjhueri

fsedreicntcioen to o tfh etshee pMroavgiissitornast,e t hine

Jguivdigneg a alsnoy h pelodw tehra tt toh etrhee w Paosr nt oa putrhoovris responden

iitoiens i nto th uen M

t. T

ilaatj

he

eorra P

l

llo

eratr nTey der

dus Scidet

isn A

glcet

ltihaeb iPliotyrt a bnyd aq uvaenssteum in respec

the

Judge, the Port coull db ehrathve i ne nth

te o Pf odratm. aAgcecso rcdaiunsge dto t oth teh ele parronpeedr tsiiensg olef 1ap1p6r oora cbhyi nfigli nthge a jsuuriits daisctional

fo Mrcaed the recovery of damages only by

Trusts Act. provided u

gnisdtreart eSe actsi opnr o1v3i1d eodf tuhned Mera jSoerc Ptioornt conc 8of theer n

. e dIn, saocc foarrd ainsCoc g R teog tuhlaet lieoanr n4e3d a Snindg Clela Juusdeg e6, rthefee Brroeadr dto o fa bToruvest eaeres aPcocrotr Tdrinugst st

hoi A

nh cti

Por

.m ,A

tw Trust could not have framed these rules, which,

proceeding under Aftre

e

tr

re

i

chleo

in

ld

co

2in

ngs is26 osfo

ten

tahn

t dwe C t

i

oath nki

nthge n portoev oisiostitution off tIh

nes of thendifaa,c tth tihsa

Mt ajo Coinu

r

rat

5

W.A.No.790 OF 2010 : 5 :

Scainngnloet J rued-gaep pwreciate evidence unless the same are perverse, the learned Jaumdegnea breleap tpor a

ent into the evidence in detail stating that Ext.P4 is not

before the Judec

niayt eadp ptehlela tmea rteermiaeldy. Acicial First Class M s and e cordingly, the learned Single

that the appellants were unablea gtiost prartoev ean

vidd ehneclde tthat were available

adduced before by any c

hoantv hinec winags esvaitdisefniecde

raeftsepro nsstaibtilneg fo trh

tthhee a Magat it llwegae

is

sd

trate that

n aoctc indeecnets

wthhei cvhe scsael osa used

f tthhee rdeasmpoangde.e n Atg waians,

tdhaamt atghees , ctlhaeim le amrandeed Sbiyn gtlhee J uadpgpee lclaonnts r

si

yd t wer

oe dgoas at

into the quantum of

assessment of d g

haaitn issts uaell aplsroin acinpdle hse oldf

ounnj uthset ernesrpicohnmde

anmt oages for negligence and their attempt was to make

quashed Ext.P4ent.

fI tt hwea Ps oornt bthye fo order and se

i sftiinndgi na totally unsustainable claim

together with cost of Rs.20,00 o0r/d-.ered refun

gds, othfe t lheea ranmedo uSnintg lree aJulidzegde

provis9io. n Isn o sfo t hfaer M aasj othr eP ofirntd Tinrguss tosf A tchte d lieda rnnPort to unilaterally decide the liability and quo etd g Si ingle Judge that the

damages caused to its properties and that thea Rnetu

vme ainny r gulatione

psopwees refc

rt terro

o

efd

tt h

h

toe

e

6

W.A.No.790 OF 2010 : 6 :

aabreo vceo nwceerren eindc, oinn soisutre nvtie wwi,t hsu tchhe fpinrodvinisgiso nosf tohf et hleea Mrnaejodr S Pinogrtle Tsq J ruudsgt eA cist

in uarely against the principles laid by the Division Bench of this CourtLuga Bay Shipping Corporation and another v. Board of Trustees P th o e r t A o p f e x C o C c o h u i r n t [ in 1 9 it 9 s 4 j u ( d 1 g ) KLT 61] was also a case where M.Tm.Leanrtn ianc aA wIRh i1c9h9 j7u dSgCm 5e4nt which was und4e.

w as confirmed byr L a u g co a m B m ay a (sup Por nd o

r f a a )

sgirmav

t Pilot, dashed

iliatyr cfeirncduemrss taare

a sgainst northncesu,s pended a

ern side of the RCC platform on which

upon to deposit the estidmamataegde c ow

nads caasusessesde dd aamndag te to the platform. In

filed before this Court by st of rectification.

h Teh Me oasrtigeirn wala pse ctaitliloend

raised identical contenti^Mon^/Ss ^Lr^ua^gis^ae ^Bd ay (supra), the owners of the vesselrreejaedcst etdhu bsy: this Court in paragraphs a 6nd to a l1l0 t hoof steh ec ojundtegnmtieonnts w wheicrhe

6. Section 116 of the Major Ports Trusts Act, 1963 states that if, through the negligence of any person having the guidance or command of any vessel any damage is caused to any jetty, the amount of such damage shall, on the application of the Board be recoverable, together with the cost of such recovery, by distress and sale, under a Magistrate's warrant, of a sufficient portion of the boats, masts, spares, ropes, cables, anchors or stores belonging to that vessel. It states that no Magistrate shall issue such a warrant until the master of the vessel is duly summoned to appear before him and if he appears, until he has been heard. No such

7

W.A.No.790 OF 2010 : 7 :

warrant shall be issued if the vessel was at the time under the orders of a duly authorised employee of the Board and the damage caused was attributable to the order, act or improper omission of such employee. This provision, according to us, make it clear that the amount of damages is to be determined by the Board. The Section provides the manner in which the said amount is to be recovered. The Board need approach the Magistrate only for effecting the recovery of that amount. When the Port approaches the Magistrate for effecting the recovery, then Magistrate is to issue summons to the master of the vessel and hear him. This hearing is not in any way connected with the quantification of the damages. Similar provision is contained in S.74 of the Harbours, Docks and Piers Clauses Act, 1847. With reference to this Section in River Wear Comrs. v. Adamson, (1877) 2 App. Cas. 743, it was held that the owner or master was not liable under that Section where the vessel had damaged a pier, being driven against it by the violence of the winds and waves, at a time when master and crew had been compelled to escape from on board and had no control over the vessel. This case was explained and distinguished in Great Western Rly Co. v. Mostyn, (1928) AC 57, where it was held that there was liability under the abovementioned section where, although there was no negligence, the vessel at the time of the damage was under the direction of the owner or his agent. From these, it is clear that the liability of the owner or master of the ship, as regards the damages to the Port is concerned, is absolute. Likewise, under S. 116 of the Major Port Trusts Act, 1963, the liability of the master or owner of the vessel in regard to the damage caused to the dock, wharf, quay, mooring, stage, jetty, pier, etc. is absolute.

7. Section 131 of the Major Port Trusts Act states that without prejudice to any other action that may be taken under the Act, a Board may recover by suit any rates, damages, expenses, costs, or in the case of sale the balance thereof, when the proceeds of sale are insufficient or any penalties payable to, or recoverable by, the Board under the Act or under any regulations made in pursuance thereof. This Section gives a remedy by a suit to the Board to recover damages.

8. In exercise of the powers conferred by Ss.48, 49 and 50 of the Major Port Trusts Act, 1963, the Cochin Port Trust, with the previous sanction of the Central Government, made the Scale of Rates and Statement of Conditions for the levy of charges as per

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W.A.No.790 OF 2010 : 8 :

notification dated 8-1-1990. Clause 16 thereon provides for assessment and recovery of compensation for damages. It inter- alia states that the Conservator of Ports shall take the necessary steps to ascertain the amount of damages. A notice specifying such amount of damage so ascertained and demanding its payment shall be served on the master or owner of the vessel. Thereupon it will be lawful for the Conservator to seize the vessel which caused the damages and detain the same till the amount is paid. Conservator may also sell the vessel and out of such sale proceeds pay to the credit of the Cochin Port Trust the amount of damage, the cost of seizure, detention and sale. The Board has thus the right to detain the vessel in the Port until the amount is paid or security is furnished. These provisions, according to us, authorise the Board to estimate the damages and call upon the master or owner of the vessel to pay the same. In case of failure, they can detain the vessel.

9. Where master disputes the quantum of damages or the claim made by the Port, it is open to have the dispute resolved by a competent civil court. This right of the master , or the owner of the ship is not in dispute.

10. According to the learned counsel representing the petitioner, the unilateral action taken by the Port Trust in assessing the damages at Rs.33.82 lakhs is in violation of the principles of natural justice and on that sole ground, the order issued by the Trust has to be set at naught. This argument though quite attractive, we are afraid, cannot be sustained. This is more so because the correctness or otherwise of the decision is open to challenge before the civil court. In the cases involving ships, which are to sail away, the decision has to be arrived at without any delay. In cases where the damages are to be ascertained only after complying with the principles of natural justice, vessels will have to be detained in the Port for sufficiently long periods. This will adversely affect the international trade. This is more so in circumstances where foreign ships are involved. They will have to sail away within the shortest time. If decision is not arrived at, the Port Trust would have no remedy to recover the damages. So also if the damage caused to the Port is not repaired with utmost speed, it will cause dislocation to the traffic. Port Trust will not be in a position to wait until the quantum of damages is determined by a Court or by complying with the principles of natural justice. As

9

W.A.No.790 OF 2010 : 9 :

observed by the Supreme Court in Karnataka Public Service Commn. v. B.M. Vijaya Shankar, (1992) 2 SCC 206, eventhough the procedure of affording hearing is as important as decision on merits yet urgency of the matter, or public interest at times require flexibility in application of the rule as the circumstances of the case and the nature of the matter required to be dealt with may serve interest of justice better by denying opportunity of hearing and permitting the person concerned to challenge the order itself on merits not for lack of hearing to establish bonafide or innocence but for being otherwise arbitrary or against rules. According to us, the case before us can safely be placed in this category, where natural justice, before taking an action, stood excluded. In the instant case, if the petitioner wants to question the quantum of damages fixed by the Port Trust, they can successfully do it by approaching a civil court. Before the civil court, a full review of the order on merit can be asked for. In such a situation, absence of a hearing prior to the decision taken by the respondent cannot in any way vitiate the said decision. In Charan Lal Sahu v. Union Of India ., AIR 1990 SC 1480, a Constitution Bench of the Supreme Court observed:-

"The rules of natural justice can operate only in areas not covered by any law validly made. The general principle as distinguished from an absolute rule of uniform application seems to be that where a statute does not in terms exclude this rule or prior hearing but contemplates a post-decisional hearing amounting to a full review of the original order on merits then such a statute would be construed as excluding the audi alteram partam rule at the pre- decisional stage. If the statute conferring the power is silent with regard to the giving of a pre-decisional hearing to the person affected the administrative decision after post-decisional hearing was good".

In the instant case since the petitioner's right to question the correctness or otherwise of the quantum of damages fixed by the respondent before a Court of law is not taken away, the absence of hearing prior to the decision will not make that decision void or 1^ill0^e.^gal."In appeal, the Supreme Court in Luga Bay Shipping Corporation and another v. Board of Trustees of the Port of Cochin

10

W.A.No.790 OF 2010 : 10 :

a co n n d te n a t n io o n th s e a r n d ( r A e I j R ec t 1 e 9 d 9 a 7 ll th S e C c o 5 n 4 t 4 e ) n , tiorenasp bpyr ehcoiladtiendg tthhues : very same

"6. Sections 48, 49 and 50 of the Major Port Trusts Act empower every Board to frame certain scales of rates and Section 52 of the Act provides that the date so fixed will have effect only when sanction in this behalf is given by the Central Government. We may now notice Sections 48, 49, 50 and 52 which read as under:

"48. Scales of rates for services performed by Board or other person.- (1) Every Board shall from time to time frame a scale of rates at which, and a statement of the conditions under which, any of the services specified hereunder shall be performed by itself or any person authorised under Section 42 at or in relation to the port or port approaches-

(a) transhipping of passengers or goods between vessels in the port or port approaches;

(b) landing and shipping of passengers or goods from or to such vessels to or from any wharf, quay, jetty, pier, dock, berth, mooring, stage or erection, land or building in the possession or occupation of the Board or at any place within the limits of the Port or Port approaches;

(c) carnage or portage of goods on any such place;

(d) wharfage, storage or demurrage of goods on any such place;

(e) any other service in respect of vessels, passengers or goods, excepting the services in respect of vessels for which fees are chargeable, under the Indian Ports Act.

(2) Different scales and conditions may be framed for different classes of goods and vessels."

"49. Scale of rates and statement of conditions for use of property belonging to Board. - (1) Every Board shall, from time to time, also frame a scale of rates on payment of which, and a statement of conditions under which, any property belonging to, or in the possession or occupation of, the Board, or any place within the limits of the Port or the Port approaches may be used for the purposes specified hereunder: -

(a) approaching or lying at or alongside any buoy, mooring, wharf, quay, pier, dock, land, building or place as aforesaid by vessels;

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W.A.No.790 OF 2010 : 11 :

(b) entering upon or plying for hire at or on any wharf, quay, pier, dock, land, building, road, bridge or place as aforesaid by animals or vehicles carrying passengers or goods;

(c) leasing of land or sheds by owners of goods imported or intended for export or by steamer agents;

(d) any other use of any land, building, works, vessels or appliances belonging to or provided by the Board.

(2) Different scales and conditions may be framed for different classes of goods and vessels.

(3) Notwithstanding anything contained in sub-section (1), the Board May by auction or by inviting tenders, lease any land or shed belonging to it or in its possession or occupation at a rate higher than provided under sub-section (1)."

"50. Consolidated rates for combination of services:- A Board may, from time to time, frame a consolidated scale of rates for any combination of the services specified in Section 48 or for any combination of such service or services with any user or permission to use any property belonging to or in the possession or occupation of the Board, as specified in Section 49."

"52. Prior sanction of Central Government to rates and conditions, - Every scale of rates and every statement of conditions framed by a Board under the foregoing provisions of this Chapter shall be submitted to the Central Government for sanction and shall have effect when so sanctioned and published by the Board in the Official Gazette."

7. As can be seen from a plain reading of these provisions, Section 48 empowers the Board to frame the scale of rates for providing certain services while Section 49 empowers the Board to frame the scale of rates for allowing the use of its property. Section 50 further empowers the Board to frame consolidated scale of rates for any combination of services specified in Section 48 or for any combination of service or services with the user of any property belonging to the Board. In none of the three Sections is there any direct mention of recovery of any damage caused by a vessel to any property of the Port or of the Board.

8. The Notification dated January 8, 1980 issued in exercise of powers conferred by Sections 48, 49 and 50 of the Major Port Trusts Act in supersession of the Cochin Port Trust Notification

12

W.A.No.790 OF 2010 : 12 :

dated August 10, 1974 must be read alongside another Notification dated January 1, 1975 issued in supersession of all previous Notifications issued under Section 6 (1) of the Indian Ports Act and Section 29 (1) of the Petroleum Act, 1934 by the Cochin Port Trust in exercise of powers conferred by sub-sections

(f) to (o) of Section 123 of the Major Port Trusts Act, which inter alia provides by Regulation 43 that the "Masters and Owners of vessels shall be held liable for any damage whatsoever that shall have been caused by their vessels or servants to any of the works or property of the Board and the Board may detain their vessels until compensation claimed by the Board is paid or security has been given for the amount of damage caused". The plain language of this regulation therefore shows that the Master or Owner of a vessel can be held liable in damages for any harm caused to the works or property of the Board and empowers the Board to detain a vessel if the compensation/security is not paid or furnished. In substance, the same is the effect of clause (6) of the Notification dated January 8, 1980 extracted earlier. At this stage, reference may be made to Section 65 (ii) of the Major Port Trusts Act which reads as under:

"Section 65. Grant of Port-clearance after payment of rates and realisation of damages etc. - If a Board gives to the officer of the Central Government whose duty it is to grant the Port-clearance to any vessel at the Port, a notice stating, -

(i) xxx xxx xxx

(ii) that an amount specified therein is due in respect of any damage referred to in Section 116 and such amount together with the cost of the proceedings for the recovery thereof before a Magistrate under that section has not been realised. Such officer shall not grant such Port-clearance until the amount so chargeable or due has been paid or, as the case may be, the damage and cost have been realised."

Section 65 (ii)

This provision, read in conjunction with Section 116, reveals the anxiety of Parliament to ensure that, before a vessel leaves the Indian Port, the amount of damages/compensation should be secured. This anxiety is for the obvious reason that once the vessel leaves the Indian shores, it would be well-nigh impossible to realise the dues of the Board. To complete the narration, we may refer to Section 131 which provides, albeit without prejudice to any other action that may be taken under the Act, that a Board may recover by a suit its dues including damages

13

W.A.No.790 OF 2010 : 13 :

when the proceeds of sale are insufficient or any penalties payable to, or recoverable by the Board under the Act or the regulations made in pursuance thereof, are insufficient. This provision grants a remedy in addition to the remedy granted to the Board under the provisions of the Act or the regulations to recover the shortfall through a suit.

9. Section 123 of the Major Port Trusts Act confers a general power on the Board to make regulations. This provision is enacted without prejudice to any power to make regulations contained elsewhere in the Major Port Trusts Act and empowers the Board to make regulations consistent with the provisions of the Act for all or any of the matters enumerated in clauses (a) to

(o) thereof which inter alia include:

"(f) for the safe, efficient and convenient use, management and control of the docks, wharves, quays, jetties, railways tramways, buildings and other works constructed or acquired by, or vested in, the Board, or of any land or foreshore acquired by, or vested in, the Board under this Act;

(n) for ensuring the safety of the Port:

(o) generally, for the efficient and proper administration of the Port."

The learned Counsel for the appellants submitted that the scope of Sections 48,49 and 50 being limited, and not embracing the imposition or recovery of damages, clause (6) of the Notification of January 8, 1980 clearly travels beyond the scope of these provisions and was, therefore, ultra vires. Nor could be said clause be protected by virtue of the regulations for the simple reason that even clauses (f), (n) and (o) of Section 123 do not speak of imposition of damages/compensation for damage caused to the property of the Board. And, in any event, the conferment of power to fix the quantum of damages or compensation unilaterally, without affording the Master or Owner of the vessel an opportunity of being heard, was clearly an infraction of the rule of natural justice.

10.Section 116 extracted earlier, in unmistakable terms states that if, through the negligence of any person having the guidance or command of any vessel, any damage is caused to any dock or other property of the Board mentioned therein, the amount of such damage as is claimed by the Board shall be recoverable by distress or sale of a sufficient portion of the

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W.A.No.790 OF 2010 : 14 :

property on board the vessel under a Magistrate's warrant. This provision therefore entitles the Board to quantify the damage and lay a claim therefor.In the present case, as soon as the damage was noticed on 15th June, 1984 while the vessel was still in the berth, the Agent and Master of the vessel were informed and thereafter the damage was assessed by the Board and claim was made. This action was clearly in terms of the aforequoted Section

116. If the amount so quantified is not paid, the Board can invoke Section 65 (ii) to ensure that Port-clearance is not granted to the vessel until the amount of damages/compensation due to the Board has been paid or realised. This is the scheme of the Major Port trusts Act.

11.Now, we come to the scheme of Sections 48, 49 and 50 of the said Act. Section 48 empowers the Board to frame a scale of rates and a statement of conditions under which any of the services shall be performed by it and these include services to be provided inter alia for landing and shipping of goods from or to vessels in the Port, dock, etc. Besides prescribing the rates to be charged for such services, the Board is expected to frame a statement of conditions under which the services would be performed and this could provide for the remedy in case of damage to the Board's property. So also, under Section 49, the Board can frame the rates and statement of conditions for performing the services set out therein. Under these provisions, therefore, it is left to the Board not only to frame the rates of charges for services rendered, but also to make a statement of conditions under which the services would be performed. Next, Section 123 empowers the Board to make regulations, albeit consistent with the Act, for all or any of the purposes set out therein, which inter alia include the safe, efficient and convenient use, management of docks, etc. This would certainly include consequential remedies in the event of damage to the Board's property. Regulations can be made to ensure the safety of the Port and for its efficient and proper administration which would naturally include providing for the eventuality of damage caused to the Board's property while providing services to the vessels, etc., making use of the Port, dock, etc. Any such provision, if made, would not be inconsistent with Sections 48, 49 and 50 and would certainly be within the scope of Section 123 (f), (n) and (o) extracted earlier.We are, therefore, unable to hold that clause (6) of the Notification dated January 8, 1980 is ultra vires Sections 48,

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W.A.No.790 OF 2010 : 15 :

49 and 50 or Section 123 and is quite consistent with the scheme of Section 116 read with Section 65 (ii) of the Major Port Trusts Act. So also, we see no inconsistency in Regulation 43 of the Notification dated January 1, 1975.

12.That takes us to the next contention namely, whether the unilateral action taken by the Board in assessing the damages is in violation of the principles of natural justice. At first blush, the argument made appears to be attractive but, on closer scrutiny, and having regard to the purpose and object of making the said provision entitling the Board to determine the quantum of damages, it would appear that the urgency of the situation demands that the Board should be allowed to determine the liability and claim payment or security for the same before the vessel leaves the schores of the country. We have already pointed out earlier the anxiety of the legislature to provide for immediate action to be taken before the vessel leaves the shore.Once it has left the shore, it would be impossible for the Board to recover the damage caused by the vessel to its property. In order to protect international trade and at the same time ensure that the damage caused to the property of the Port is recovered before the vessel leaves the Port, it seems essential that the Board should be empowered to determine the quantum of damages and ensure that the vessel does not leave the Port before depositing cash or providing security for the same. Besides, to avoid dislocation of traffic, it is essential that the damage caused to the Port or property of the Board is repaired without loss of time, for which funds would be required. In the circumstances, it is therefore inevitable that the power to determine the damage must vest in the Board for, otherwise, the vessel may leave the Port and the Board would be left to suffer the damage without recovering it from the offending vessel. Therefore, while conceding that the right to be heard before the quantum of damage is determined is an important right, in the very nature of things and having regard to the urgency of the matter, public interest demands that before the vessel leaves the shores of the country, the estimated damage is paid to or secured by the Board. The interest of justice, insofar as the Board is concerned, would not be safe-guarded if this power is not vested in the Board and consequently the vessel is permitted to leave the shores of the country without securing the damages. Besides, if the Master or Owner of the vessel desires to question the quantum of damages determined by the Board, the law does not

16

W.A.No.790 OF 2010 : 16 :

preclude the filing of a civil suit in that behalf. In the civil suit, the basis on which the quantum of damages was worked out by the Board would be fully reviewed and that would provide a post- decisional hearing to the Master or Owner of the vessel. We are, therefore, of the opinion that in the very nature of things, it is not possible that a pre-decisional hearing should be accorded to the Master or Owner of the vessel before the Board determines the amount of compensation. Even if the Board can ensure that a Port-clearance is not granted to the vessel that would not serve the objective as the continued presence of the vessel at the dock or port would block up traffic as urgent repairs would not be possible and the presence of the vessel would not permit other vessels to enter that area. In our opinion, therefore, the High Court was right in coming to the conclusion that in the very nature of things, a hearing before the quantification of damages by the Board is not possible. We, therefore, do not see any merit in this contention ei

Court 1a1

ther."

re. aT choem apbloevtee apnrsinwceipr lteos tlhaeid f idnodwinng sb oyf tthhies lCeoarunret da nSd the Apex donam thaege iss,s iutes roifg htht eto competence of the Board to unilaterally i nagsslee sJsu dthgee

Rore ghuisla atigoennst. w Thhoes dei sp

demand the same an

principles also show t

dh aitts t hentitlement to frame the

suit before the concernuetde sC itvhiel Cqouuantification or

e t hreem lieadbyil iotyf tihse t oM faislete ar

appell1a2n.t s Iwn esroe fnaro ta sa btlhee tfoin pdrinovge

rotf c thhaell elenagrinnegd th Sei nsgalme eJ.udge that the

abcecfoidreen tth eis Mcoangicsetrrnaeted ,that the ves

sbeyl wa acso nrevsinpcoinng evidence adduced the correctness of this finsdibinleg foofr tthhee laelalerngeedd

17

W.A.No.790 OF 2010 : 17 :

Seninqguleir yJu tdhgaet wisi lpl have to be appreciated in the context of the scope ofSection 57 of the Ienrdmiaisns Pibolret su Ancdte, r1 9S0ec8t iroenad 5s7 th oufs t:he Indian Ports Act.

"Ascertainment and recovery of expenses and damages payable under this Act:-

(1) If any dispute arises as to the sum to be paid in any case as expenses or damages under this Act, it shall be determined by a Magistrate upon application made to him for that purpose by either of the disputing parties.

(2) Whenever any person is liable to pay any sum, not exceeding one thousand rupees, as expenses or damages under this Act, any Magistrate, upon application made to him by the authority to whom the sum is payable, may, in addition to or instead of any other means for enforcing payment, r

provis1

e

io3

co

n.

ver the sum

cAa nr ebaed iinnvgo o

a f s S i e f it were a fin ked ifc tainoyn 57(1) e."

any case as expenses or damagdeissp uunte s haroiwsess that the power under this raised, the said dispute shall be deterder the aAsc tto. t hIfe summined b such

to be paid in

application made to him for that purpose byy ethiteh eMra ogfis tr aat ed iusppuotne a ins

wpahritcihes i.s Ttoh ibse p droetveisrimonin, etdhe brye ftohree ,M shaogiwstsr athteat the n the disputing

him is only as to the sum to be paid in any cas oen a sa ne xa

aptuprleic aotfi othne m daisdpeu ttoe

In other words, it is the quantification of the sump tehnaste sis o rp adyaambaleg eass.

18

W.A.No.790 OF 2010 : 18 :

dexepteernmseinsa toiorn d baym tahgee Ms augnder the Act whichto the liability for paymenits torra teex paend an enquiry oifs a dcaisppaubtlee i no fre lbaetiionng

5C7ou. rStu acnhd a t hdeis Appuetex cCaonu rbte i nre tshoel ved

nosnelys ibsy o au tCsiivdiel Ctohuer stc aosp he eoldf Sbeyc ttihoins

eSninqguleir yJu udngdee cro Sueldction 57 of th

L e u g I a n d B i a a y n ( P supra). If that is the scope of

ground that the evid ennocte have

ort Act, 1908, the learned

of the respondents was re aspdodnu

cfoeudn bdy tfahuelmt dwiidth n otth per oapvep ethllaatn tthse o vne stsheel

tbhoanta bfied esso o, nth teh ele qaurnanedtu mSin gle

sJiubdleg efo arl tshoe c aocuclidd ennott c hauavsien gfo duanmd algaecks. oIff

judgmTehnet osfu tmhe alneadr nseudb sSt

oafn dcaem oafg etsh cela aimboevde b yd itshceu rsessiopnon idse ntht.at the

suents aussitdaein aanbdle t.h eA accpordingly

in tghlee jJuuddggmee allowing the original petition ispeal is allowed. nt of the learned Single Judge is Sd/-

ANTONY DOMINIC,

Judge

Sd/-

ALEXANDER THOMAS,

Judge

jes

19