TMI Blog1995 (12) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... Licence in September 1994 but without DEEC book (Import). The Bill of Entry was filed in February 1995. The goods arrived in February 1995. According to the Petitioners, they were pursuing with the Officers of the Director General of Foreign Trade for issue of DEEC book but the same was not issued in February 1995. According to the Petitioners, books were issued only on 22-9-1995 and 3-10-1995. In the meantime, the goods were not cleared because of non-availability of the said books/certificates. Since the goods were not cleared, B.P.T. charges started mounting. On 11-7-1995, B.P.T. gave final notice of sale of the uncleared cargo. By the said notice, Petitioners were informed that if the goods are not cleared within two months, the goods would be put to sale by public auction/tender under Sections 61 and 62 of the Major Ports Trust Act, 1963. By the said notice the Petitioners were informed that that was the final notice. The Petitioners did not clear the goods. The Petitioners, however, made payment of B.P.T. charges on 21-7-1995 up to date. On 17-8-1995, B.P.T. gave second notice to the Petitioners asking the Petitioners to clear the goods failing which goods would be sold by p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1995, the general landing date of the goods was 14-2-1995 and the Petitioners were obliged to clear the goods by 17-2-1995 failing which demurrage become payable and the time under Section 62 started running. However, Petitioners did not clear the goods by 17-2-1995 and the goods remained in the port premises for a period exceeding two months without being cleared and in the circumstances B.P.T. took steps to dispose of the goods under Section 62 of the said Act. Accordingly, B.P.T. gave a written notice, dated 11-7-1995 to the first Petitioners stating that the Petitioners goods are lying uncleared and they are liable for sale by public auction and that if the Petitioners did not clear the goods within next ten days, the goods would be sold by way of auction/tender on 21-7-1995 or any other subsequent date without any further notice to the first Petitioners. The second notice was similarly given on 17-8-1995. B.P.T. also published notice of sale in the Official Gazette. B.P.T. also gave an advertisement of auction sale/tender in the news paper, dated 14-8-1995 and in the circumstances, the goods came to be sold. According to B.P.T., a general circular has been issued by the Colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged to make the balance payment which they made. In the present case, therefore, it is the case of the B.P.T. that they have acted in accordance with law and no mala fides can be imputed against B.P.T. 4. Mr. Bharucha the learned counsel appearing on behalf of the Petitioners contended that, in the present case, provisions of Sections 61 and 62 of the said Act, 1963 have not been followed. Mr. Bharucha contended that no notice of sale was given to the Petitioners. Mr. Bharucha contended that twice the notice of sale was given. That on each occasion, the Petitioners paid B.P.T. charges up to date. That the Petitioners were never told thereafter that despite payment property would be put to sale. Mr. Bharucha contended that under Section 62 of the Major Ports Trust Act, 1963 it was incumbent upon B.P.T. before resorting to power of sale to give notice. In the present case, B.P.T. did not do so and, therefore, the sale was null and vaid and liable to be set aside. Mr. Bharucha the learned counsel appearing on behalf of the Petitioners further contended that, in the present case, undertaking allegedly given by the Petitioners Customs House Agent cannot be read as notice of sale. Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Mr. Pratap the learned counsel appearing on behalf of the B.P.T. contends that under Section 61 of the said Act, 1963 the goods are sold after two months if rates or rent are not paid or lien for freight is not discharged whereas Section 62 of the said Act, 1963 refers to disposal of the goods by B.P.T. if the goods are not removed from the premises of B.P.T. within the time prescribed. Mr. Pretap contends that Section 62 is the relevant section which is applicable in this case. Mr. Pratap contends that in the present case, importer/consignee cannot use premises of B.P.T. as Warehouse. Mr. Pratap further contends that there is an acute paucity of space in the B.P.T. premises on account of heavy congestion. On the other hand, he pointed out that on several occasions consignees/importers find it easier to pay B.P.T. charges and use the B.P.T. premises for storage because if the goods are required to be stored in Warehouse then the Warehouse charges would be more than the rent and the other charges payable to B.P.T. by such consignee/importer. Mr. Pratap contends that in the present case, the petition is vague in the sense that the Petitioners have not given any details regarding th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... procedure. Mr. Pratap further pointed out to the news paper advertisement clearly informing the Petitioners that the goods would be put to auction sale/tender if they are not cleared by the stipulated date. Mr. Pratap further pointed out that, in the present case, Respondents No. 2 have offered rate of Rs. 124/- per kg. whereas the reserved bid was Rs. 121.50 per kg. and in the circumstances the sale was confirmed on the spot. Mr. Pratap further contends that after discounting sales tax and other tax component, the second Respondents have paid 20% of the value of the goods and in the circumstances there is no breach of the terms and conditions of the tender sale. 6. In the present case, I wish to point out that judicial note may be taken of the fact that there is heavy congestion in the matter of clearance of the goods which land in the Bombay Port. This congestion is mounting by the day. In such circumstances, as of today, B.P.T. is right in its contention that it is a statutory duty of the consignee/importer to clear the goods as expeditiously as possible. Merely because consignee/importer pays up to date rent or other charges to the B.P.T., it does not follow that he has righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances, the sale in favour of Respondents No. 2 cannot be faulted. 8. It is also sought to be argued on behalf of the Petitioners that the goods have been sold at the rate which is highly undervalued. It is not possible in writ jurisdiction to examine this aspect. The procedure laid down has been followed by the B.P.T. If the goods are sold at the rate which according to the Petitioners, is not the market value then the Petitioners would be entitled to file suit against the Auction Purchaser. In writ jurisdiction, it is not possible to examine the disputed facts. In the present case, in view of the circular issued by the Customs, there is full compliance of Section 45 of the Customs Act by the B.P.T. 9. In the present case, I wish to make certain observations regarding the Scheme of Section 61 and Section 62 of the Major Ports Trust Act, 1963. It is true that the Act contemplates holding of the auction sale in the first instance and it is only if cogent reasons are given by the Competent Authority, then the auction sale could be by-passed and tender sale could be resorted to. In the present case, reasons have been given as far back as in 1984 for by-passing the auction ..... X X X X Extracts X X X X X X X X Extracts X X X X
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