SARDESAI TRANSHIPPERS PVT LTD Vs. STATE OF GOA

JUDGEMENT

(1.) COMMON questions arise in these Writ petitions and therefore we are proposing to dispose of these petitions by this common judgment.

(2.) THE petitioners in these writ petitions are barge owners and they challenge the demand made by the respondents towards wharfage for the use of the wharf at the Panaji port. One of the demands so made is produced in Writ Petition No.108/96 evidenced by Exhibit 'a'. As per this demand, the respondents sought to realise wharfages dues payable from 1st April 1984 to 31st May, 1994. Similar notices were given to the other petitioners. THE petitioners challenge in these Writ Petitions these demands on the ground that they are unauthorised levy having no support of law. Before going into more details of these cases, we have to mention here that on an earlier occasion when similar demands were made by the respondents from barge owners, they had approached this Court by way of Writ Petitions. Those Writ Petitions numbering about 76 were however, disposed of by a Division Bench of this Court by judgment dated 26th February 1992. A copy of the judgment is produced in Writ Petition No.82/96 as Exhibit 'b' at page 23 Those judgments were delivered on the basis of minutes of order submitted by the parties as enumerated herein : - " (a)Annual licence fees on the basis of not registered tonnage. (b) Port dues as fixed under the Rules on the basis of the net registered tonnage once a quarter only, viz. once between 1st January and 31st March, once between 1st October and 31st December, in terms of the Schedule to the Ports Act. (c) Fees for Mooring or Wharfage, whichever and whenever applicable, on the basis of net registered tonnage. " THE condition (c) deals with fee for Mooring or Wharfage. THE said condition says that Mooring and Wharfage, whichever and whenever applicable should be on the basis of registered tonnage. Going by these conditions, it can be seen that the demand of wharfage can be made only on the basis of tonnage of the vessel. In other words, the said condition says that the parties have agreed to pay the wharfage on the basis of the tonnage. THE learned counsel for the petitioners submits that the condition cannot be taken as conceding the power of the Government to levy the wharfage. THErefore, he submits that challenges like the one made in these Writ Petitions are always open for the petitioner to make. However, we see that there was no considered judgment by this Court on the point raised by the counsel for the petitioners, namely the validity of the imposition of wharfage under the provisions of the Indian Ports Act, 1908 and the Rules made thereunder. THErefore, we venture to examine in this petition the legality or otherwise of the demand made by the respondents by way of wharfage as contained in Exhibit 'a'.

(3.) IN pursuance of the above rule-making power, the Lt. Governor of Goa, Daman and Diu has framed rules which are called the Goa, Daman and Diu Ports Rules, 1983. These Rules are framed for the purpose of regulating the movement of crafts, licensing of crafts, landing and wharfage, area for storage of goods, operation of space in landing, etc. and prescribe fees and dues chargeable under the Rules. Chapter IV of the said Rules has the caption: "landing and Wharfage". Rule 38 deals with the manner in which the application has to be made for landing and shipping. Rule 40 which is also in Chapter IV deals with area for storage of goods. Rule 43 deals with facility that is to be provided by port authorities for landing. Rule 54 deals with the allotment of space by the port authorities in the port and the period during which that allotment should be enforced. Chapter VII deals with miscellaneous matter. Rule 64 which comes under this Chapter reads as follows :- " R. 64 :-Levy of port dues and other fees- Port dues and other fees shall be levied at all the ports at the rates specified in the Schedule. " As mentioned in Rule 67, a Schedule also has been prescribed by the rule-making authority showing fees and dues chargeable under the Goa, Daman and Diu Port Rules, 1983. Item 26 of the Schedule mentions the rate of port dues. Item 41 deals with the rate of transporting minerals. item 55 deals with wharfage and reads as under : - " R. 55: Wharfage - (i) Country craft or per day Rs. 0. 15 sailing vessels upto per ton 100 tons minimum or part payable Rs. 5,00 thereof (ii) Country craft of per day Rs. 0. 15 sailing vessels per ton above 100 tons or part minimum payable thereof Rs. 10-00 (iii) mechanized craft double the rates at (i) or (ii) above. "