HALAR MARITIME AGENCIES Vs. GUJARAT MARITIME BOARD

JUDGEMENT

(1.) THESE two appeals raise common questions of fact and law. Parties in both the appeals are same. First Appeal No.1818 of 2001 is filed against judgment and decree dated 28.8.2000 passed by 2nd Joint Civil Judge (S.D.), Jamnagar in Special Civil Suit No.127 of 1987, whereby the suit filed by the appellant for recovery of Rs.8,33,528.26 ps. is dismissed. First Appeal No.2287 of 2010 is filed against the judgment and decree dated 22.2.2010 passed by 2nd Additional Senior Civil Judge, Jamnagar, whereby the suit for recovery of Rs.1,91,39,708/- is dismissed.

(2.) IN the first suit, it is a case of the plaintiff that the plaintiff carries on business of lightering cargo at Bedi Port, Jamnagar and for the the purpose of loading and unloading goods, it is having three barges. The defendant is a statutory Board under Gujarat Maritime Board Act, 1981 (hereinafter referred to as 'the Act' for short) and the plaintiff served as an agent for lightering cargo from ships arrived at the port. The plaintiff completed lightering of cargo of 2,77,843 M.Ts. for the period from 11.3.1985 and 11.2.1987. The defendant Board has not rendered any services as far as lightering of cargo is concerned and still the defendant Board recovered an amount of Rs.7,06,386.26 ps. in the name of prescribed charges and surcharges from the plaintiff. The defendant Board has recovered the aforesaid amount as per notification No. GMB/T-37-38/2 dated 30.1.1984. Such notification has no legal bearing and recovery of the amount from the plaintiff is not legal and valid. The plaintiff has thus become entitled to recover the above-said amount from the defendant Board. 2.1. The defendant Board resisted the suit by filing written statement at Exh.12, wherein it is pointed out that the suit is not maintainable, that the plaintiff is having 6 barges and is carrying regular business of lightering cargo at Bedi Port, Jamnagar, that right of carrying lighter services is vested and retained by the Port authority, private person has got no right to exercise such power of the defendant Board and if anybody wants to carry on such lightering activities, permission of the Board is required and such person is required to pay necessary charges, that plaintiff had already recovered the amount from its customers and to allow the claim of plaintiff would be unjust enrichment to the plaintiff, that the suit is barred by the provisions of Section 107 of the Act. 2.2. On the basis of the pleadings, learned Judge framed the following issues and each issue was answered as mentioned below:-

(3.) IN response to the above said arguments advanced by learned advocate Mr. Majmudar, learned advocate Ms. Dilbur Contractor for Mr. P.R. Nanavati for the respondent submitted that the plaintiff was not acting on behalf of the ship owner or owner of the goods brought in the ship, simply to facilitate such owner without any charges to bring the goods from the ship to the Port. She submitted that the plaintiff is a businessman dealing in lightering of cargo by using his barges for the purpose of loading and unloading of goods from the ship by taking necessary charges from the persons whose cargo is to be loaded and unloaded and to be brought to the Port. 5.1. She would contend that the plaintiff being an independent agency working for lightering of cargo by charging the amount for such services, the plaintiff makes profit from such activity by using its barges in the Port area. The plaintiff thus cannot complain about the recovery of requisite charges under the notification by the defendant Board. 5.2. She would next contend that recovery of the charges by the defendant Board is under notification dated 30.1.1984, which was issued by exercising the powers by the State Government under Section 37 of the Act, whereunder, the defendant Board is authorized to charge for the services, including the service of barges for lightering the cargo and also for recovery of the charge from the private operator who wants to provide such facility. She pointed out that for services of lightering cargo, defendant Board has fixed its own rates whereas for providing services of lightering cargo by private agency, the Board provided rates as per the notification which are less than the charges for the facility of lightering cargo, being carried on by the Board itself. She, therefore, submitted that the plaintiff had been profiteering by doing business of lightering cargo with its own barges by recovering the charges fixed by the plaintiff with its own customers and whatever charges the plaintiff was required to pay, a small portion of such amount is recovered by the plaintiff from its customers. The plaintiff has already recovered such charges from its customers and paid without any objection all throughout to the defendant Board. She has further contended that the plaintiff from the beginning knew about the notification of 1984 providing for recovery of the lighterage charges by private agency and has never objected to the Board of such charges to the defendant Board. She submitted that after having paid the lighterage charges under the notification for long period of more than 5 years without any protest, the plaintiff would be estopped from claiming refund of such amount by way of filing suit in the court of law. 5.3. She has further submitted that the suit of the plaintiff is also barred by the provisions of Section 107 of the Act. She submitted that the plaintiff never issued notice under Section 107 of the Act and the suit of the plaintiff being filed after a period of six months from the date of recovery of the charges from the plaintiff, the suit is barred by the provisions of Section 107 of the Act. She would contend that the defendant Board has adduced enough evidence to establish that all necessary services and facilities have been provided at the Port and the defendant Board has discharged all its functions at the Port. She, therefore, submitted that the plaintiff has not adduced any evidence to establish as to which services the Board has not provided as required to be provided by the Board at the Port. She would last contend that it is not open for the plaintiff to challenge the notification in the suit as the Civil Court is competent to decide the private civil rights between the parties and not competent to decide the question as regards unconstitutionality or otherwise of the notification. She however, submitted that the notification which was issued, was issued by exercising the powers under the provisions of the Act and such notification is constitutionally valid and the plaintiff has miserably failed to establish as how and on what count, the notification was bad in law or unconstitutional. She would thus submit that the plaintiff having failed to bring home any of the points raised in the appeals, the appeals filed by the plaintiff before this Court are required to be dismissed.