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TMI Blog2009 (8) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... to refer the writ application to the Hon'ble the Chief Justice for constitution of a Larger Bench, to adjudicate the issue of whether Section 59 of the Major Port Trusts Act, 1963, read with Section 5 and 6 of the 1971 Act confers on KPT a right of lien on, or the right to detain, seize and/or sell the goods of third parties, lying on the public premises, for realization of arrears of rent due from tenants, irrespective of whether the rent accrued in respect of those goods and irrespective of whether the owner of those goods had any privity of contract with KPT." 2. The facts involved in the matter need not be elaborately noticed as the reference raises only pure legal issues with regard to interpretation of Section 59 of the Major Port Trust Act, 1963 (herein after referred to as MPTA) read with Sections 5 and 6 of Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as PPA). The petitioner nos. 1 to 17 are liners and steamer agents of liners, engaged in the business of shipping, inter alia, of providing services and facilities like ocean freighting and logistical support to the exim trade. They are in business of taking the transportation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rch, 2008 to remove or cause to be removed any property belonging to the occupant failing which it would be disposed of by public auction. Reftech made representations before the Estate Officer on 8th March, 2008 for grant of permission to remove the containers lying inside the sealed plot. The petitioners have also moved individual representations. None of the representations have been considered. The petitioners, therefore, filed the writ petition challenging the action of the KPT on various grounds. KPT opposed the writ petition by filing an affidavit-in-opposition. The matter was heard at length by the learned Single Judge. Since the submissions made before the learned Single Judge have been reiterated before us, the same need not be adverted to at this stage. Suffice it to say that in support of his submissions Mr. Tilak Basu, learned counsel for the petitioners, relied upon a judgment of the Division Bench of this Court in the case of Board of Trustees for the Port of Calcutta v. Indian Rayon Corporation Ltd. & Anr. [1987 (28) E.L.T. 334 (Cal.)] and a judgment of the Supreme Court in the case of The Board of Trustees of the Port of Bombay & Ors. v. M/s. Sriyanesh Knitters [19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners. It is submitted that under the Calcutta High Court Rules a learned Single Judge can place papers before the Chief Justice for constitution of a Larger Bench. The question raised in the reference is of general public importance having wide ramifications. In any event, there is a clear conflict between the two Division Bench judgments with regard to interpretation of Section 59 of the MPTA, 1963. Therefore, the reference was only justified. In support of his submissions learned senior counsel relied upon (1) Lala Shri Bhagwan & Anr. v. Ram Chand & Anr. [AIR 1965 SC 1767] (2) Tribhovandas Purshottamdas Thakkar v. Ratilal Motilal Patel & Ors. [AIR 1968 SC 372] (3) State of Gujarat & Anr. v. Acharya Shri Devendraprasadji Pande [AIR 1969 SC 373] (4) Smt. Nirmala Birla & Ors. v. The Wealth Tax Officer, 'M' Ward Dist. V(I), Calcutta & Ors. [AIR 1975 Cal. 348]. On merits : 6. Mr. Pratap Chatterjee submits that the scope of Section 59 was considered by this Court in the case of Indian Rayon Corporation Ltd. (supra). The Division Bench has given a clear finding that the lien is limited to the goods in respect of which rates and rents are due. It cannot travel to goods of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law that only the defaulter can be made liable. Rent can only be due from the person who is a tenant. Rent cannot be in rem, i.e., rent for the land is not due against any body and everybody. According to the learned counsel such an interpretation would lead to absurd results. A stranger cannot be made to pay for the default of a tenant. Mr. Tilak Bose supplemented the submissions and submitted that the plain meaning of Section 59(1) is clear. Even if the meaning of the provision is not clear, any construction that will possibly lead to unconstitutionality of the provision must be avoided. In support of this submission learned counsel relied on the judgment of the Supreme Court in the cases of (1) Sri Krishna Coconut Co. v. East Godavari Coconut and Tobacco Market Committee [AIR 1967 SC 973], (2) State of Kerala v. M.K. Krishnan Nair [(1978) 1 SCC 552]. According to learned counsel right to property cannot be defeated without due process of law. Even though right to property may not be a fundamental right but it is still a constitutional right under Article 300(A) of the Constitution of India. According to the learned counsel Section 59 of the MPTA cannot be interpreted in the man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by sale of goods after a particular period of time. These kinds of provisions are to be found in a number of enactments throughout India. Therefore, the vires of Section 59 has not been challenged. According to the learned counsel the law laid down by the Supreme Court in the case of M/s. Sriyanesh Knitters (supra) would not be applicable in the facts which were being considered by the Division Bench in the case of Canoro Resources Ltd. (supra). In that case the Division Bench was dealing with recovery of rent in proceedings under PPA, 1971 whereas in the case of Indian Rayon Corporation Ltd. (supra) the Division Bench was dealing with recovery of rates in respect of goods. With regard to rent lien can only be with respect to goods as the KPT cannot possibly have any lien on buildings owned by it. Therefore, the Division Bench on a conjoint reading of Section 59(1) & (2) and 61 with Section 6 of the PPA has correctly recorded that the Board not only has lien over the goods found on the land of the port for any rent due or payable but also a right to sell those goods and to appropriate the sale proceeds towards the rental dues. This would be immaterial even if the goods do not belo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TA. The Division Bench in Indian Rayon Corporation Ltd. (supra) has clearly held as follows : "33. ... ... ... Under Section 59 of the said Act of 1963, the appellant has been given a right of lien for its rates and rents against the goods on which such rates and rents have accrued. Such lien, in our view, cannot be extended to other goods belonging to other persons. The position would remain the same in respect of payment made on account of rent and rates paid in respect of any particular consignment. If such rates and rents have been paid in excess the appellant, in our view, cannot shift its claim in respect of other goods belonging to other parties on such excess amount paid either under the Act of 1963 or the By-laws or Rules made thereunder. 34. Even under the general law, it is not open to the appellants to adjust its claims against particular goods of particular persons against other goods belonging to other persons or against money paid by another person in respect of such other goods. The appellant, in the instant case, was not entitled to treat the respondent No. 4 as the principal in respect of goods cleared by it and adjust its claim in respect of some goods against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S. 59 shows that in respect of any goods which are imported the Board has a lien for the amount of all rates leviable under the Act and for the rent due to it and it also has a lien on such goods and the Board may seize and detain the same until such rates are paid. It is clear that it is only in respect of the amount due qua the goods imported and existing there that the Board has a lien under S. 59. Under Section 61(1), in exercise of its lien, the board is empowered to sell the said goods for realization of the amount due to it. Reading the two sections together it is clear that the goods which can be sold in exercise of its lien are only those in respect of which amount is due and payable to the Board. The words 'such goods' in S. 61(1) has reference to those goods in respect of which rates due to the Board have not bee fully paid. 9. Coming to the facts of the instant case the amount which was claimed by the appellants was in respect of the consignment of woollen rags. There can be little doubt that in respect of the amount claimed by the Board the provisions of Ss. 59 and 61(1) would have been applicable with regard to the said consignment of woollen rags. But the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g, transporting, storing or delivering goods brought within the Board's premises. At that stage Calcutta Port Trust was the actual owner of the goods. In other words, after the goods are released by the ship-owner, KPT is responsible for storage and security of the goods. For these services, it charges rates, which would include rent for the plinth or the building in which they are stored. Therefore, all rates and rents are relatable to the specified goods. We are, therefore, unable to accept the submission of Mr. Anindya Mitra. 14. The powers of KPT under Sections 59 and 61 of MPTA would have no relation to the goods of a stranger lying at the KPT premises which may be under unauthorized occupant. To this extent, we are unable to agree with the observations of the Division Bench in Canoro Resources Ltd. (supra). In this case, the Division Bench was considering a matter where an eviction order had been passed by the Estate Officer under the PPA, 1971 against the tenant of KPT. In execution of the aforesaid order, KPT obtained possession of the land from the tenant and seized some timbers and casing pipes which were lying on the lease hold land at the time of taking delivery o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in holding that in the absence of any co-relation between the unauthorized occupant and the writ petitioner, the Port Trust Authority was not entitled to sell the goods belonging to the writ petitioner. 7. Thirdly, Mr. Mitra submits that under the provisions of the Act, the Estate Officer being the appropriate authority to decide the disputes involved herein, the learned Single Judge erred in law in directing the Chairman of the Port Trust to decide such question instead of asking the writ petitioner to approach the appropriate forum under the Act if it was dissatisfied with the order passed by the Estate Officer." 15. These submissions were countered by the learned counsel for the writ petitioner/respondents as follows : "9. Mr. Jayanta Kumar Mitra, the learned Senior Advocate appearing on behalf of the writ petitioner/respondent has, however, opposed the aforesaid contentions advanced by Mr. Anindya Mitra and has contended that the Kolkata Port Trust being adequately represented in the writ application through its Chairman and the said Chairman of the Kolkata Port Trust having not only complied with the order of this Court in past but also prayed for review of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Port Trusts Act are also to some extent relevant and quoted below......." 18. Thereafter, Section 59 and Section 61 of MPTA are reproduced in paragraph 18 as follows : "18. A conjoint reading of the aforesaid statutory provisions makes it abundantly clear that if any goods are found on the land of the port and for such land any rent is due or payable, the Port Authority has not only the lien over those goods but also right to sell those goods to appropriate the sale proceeds towards the rental dues after a specified period and it is immaterial whether the person liable to pay rent to the Port Authority for the land is the owner of those goods or not. In other words, if somebody unknowingly keeps any goods on the land of the port, his goods would be liable to sale for realization of the dues of the rent for the land notwithstanding the fact that he had no connection with the person who was liable to pay the rent for that land. In the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, the same principle has been adopted and according to section 6 thereof, if at the time of execution of any order of eviction from the public premises, any goods are found on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ya Mitra had not even raised the issue about the power of KPT under Sections 59 or 61. No grievance had also been made while Mr. Jayanta Kumar Mitra, learned counsel for the petitioners submitted that the KPT had wrongly invoked Sections 59 and 61 of MPTA. The whole issue was limited only to the powers of KPT under the PPA, 1971. In our opinion, it was a territory travelled into by the Division Bench, without being invited therein, either in the pleadings or the submissions of the learned counsel. These observations, therefore, cannot be treated as a precedent on interpretation of Sections 59 and 61 of MPTA. In our opinion, the issue with regard to the ambit of Sections 59 and 61 has been correctly decided by the Division Bench in Indian Rayon Corporation Ltd. (supra). This judgment is in consonance with the law laid down by the Supreme Court in M/s. Sriyanesh Knitters (supra). 20. For the reasons stated above, we are unable to accept the submission of Mr. Anindya Mitra that there is no conflict between the earlier Division Bench Judgment in Indian Rayon Corporation Ltd. (supra) and the later Division Bench judgment in Canoro Resources Ltd. (supra). The view taken in first pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a requisition or reference by a Division Bench. Apart from the specific powers in that behalf conferred under Chapter II, the Chief Justice is invested with and has the inherent power to refer any matter of some importance to a Special Division Bench consisting of three or more Judges." 26. Reference may also be made to paragraphs 31, 32, 33 and 34 of the aforesaid judgment as the observations contained therein would be of some relevance in the facts and circumstances of the present case. In these paragraphs it is held as follows : "31. It is the ratio decidendi of a judgment that is a binding precedent. The hierarchy of authority with regard to binding precedent is summed up in paragraph 28 at page 158 of Salmond on Jurisprudence, Twelfth Edition, as follows; "The general rule is that a court is bound by the decisions of all courts higher than itself. A High Court Judge cannot question a decision of the Court of Appeal, nor can the Court Appeal refuse to follow judgments of the House of Lords. A corollary of the rule is that the courts are bound only by decisions of higher courts and not by those of lower or equal rank. A High Court Judge is not bound by a previous Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h has the authority to differ with the Division Bench which has taken a view contrary to the Special Bench judgment. A Single Judge of a High Court is bound by the judgment of another Single Judge and a fortiori judgments of Benches consisting of more Judges than one. So also, a Division Bench of two Judges of a High Court is bound by judgments of another Division Bench of two Judges and Full Bench. A Single Judge or Benches of High Courts cannot differ from the earlier judgments of co-ordinate jurisdiction merely because they hold a different view. When a Division Bench of two Judges differs from the judgment of another Division Bench of two Judges, it has to refer the case to a Full Bench. A Single Judge cannot differ from a decision of a Larger Bench except when that decision or a judgment relied upon in that decision is specifically overruled by a Full Bench or the Supreme Court. However, if the decision of the Larger Bench is inconsistent with the law laid down by a Full Bench or the Supreme Court, the proper course to the Single Judge would be to refer the matter to the Division Bench." 27. These observations were reiterated by the subsequent Full Bench in the case of B ..... X X X X Extracts X X X X X X X X Extracts X X X X
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