Bombay High Court: Petitioner approached this Court to quash the demand notice dated 18-05-2010 and subsequent demand notices raised by respondent against petitioner for payment of Berth Hire Charges. Petitioner stated it was incorrectly calculated and levied in respect of petitioner’s tug ATUL for the period from 08-07-2008 to 28-10-2008. Petitioner also sought injunction restraining respondent from encashment of bank guarantee dated 03-03-2018 for Rs 2 lakh given on instructions from petitioner. Other prayers were also sought like restraining respondent from suspending port services to petitioner and its tugs and from taking coercive steps, etc.
The Division Bench of K.R. Shriram* and Jitendra Jain, JJ., opined that the view expressed by Tariff Authority for Major Ports (‘TAMP’) was binding on respondent as it was TAMP that had interpreted the scale of rates fixed by it.
Background
Petitioner owns tugs which were used in the Mumbai Port Area for towing big vessels to the berth from anchorage and back. Respondent was entitled to levy charges as per the port scale of rates that was approved by the TAMP, an independent authority constituted under Section 47-A of the Major Port Trust Act, 1963 (‘MPT Act’). It was TAMP that fixed rates and conditions in respect of the services, port dues, and other charges levied by major ports in India.
Respondent levied Berth Hire Charges on tug ATUL for the period from 08-07-2008 to 28-10-2008 under Note 1(i) of Section 2.16 of Scale of Rates, Mumbai Port Trust which was based on minimum 1000 Gross Registered Tonnage (‘GRT’). Petitioner submitted that the Berth Hire Charges should not be levied under Note 1(i) and 1(ii) but under Note No. 4 of Section 2.16, whereby the concessional rate under Note 4 would be applicable to tug ATUL. Petitioner further submitted that the Berth Hiring ought to have been calculated on the actual GRT of tug ATUL, i.e., 284 tons and not on 1000 GRT basis.
Analysis, Law, and Decision
The issue for consideration was “whether respondent was entitled to levy Berth Hire Charges based on minimum 1000 GRT on tug ATUL or the Berth Hire Charges should be levied on the actual GRT of 284 tons, the concessional rate prescribed under Note 4 of Section 2.16 of the scale of rates?”.
The Court took note of Section 30 of the MPT Act and observed that under this section, the existing rates, unless altered by the competent authority or any other authority shall continue to be levied at the same rate at which they were being levied. The Court stated that authority as defined under Section 2(aa) of the MTP Act meant TAMP and under Sections 42(4) of the MPT Act, even a person authorised under Section 42(3) shall not charge or recover for such service, any sum in excess of the amount specified by the authority, i.e., in the present case, TAMP. The Court further noted that Sections 48 and 49 of MPT Act provided that the authority (in the present case, TAMP) shall from time-to-time frame scale of rates at which the statement of condition under which, any of the services specified thereunder shall be performed by board or any other person authorised under Section 42 at or in relation to or within the limits of the Port or Port approaches.
Therefore, the Court opined that it was the TAMP that would fix the scale of rates and statement of conditions. The Court noted that the scale of rates that was prevailing in 2008 was fixed by TAMP and it was in the scale of rates, that there was a disagreement between petitioner and respondent on the interpretation of Section 2.16 which had been fixed by TAMP. Thereafter, petitioner made a representation to TAMP and TAMP stated that respondent should charge only based on actual tonnage of the tug ATUL under Serial No. 4 of Part II of Section 2.16, but respondent insisted on charging based on 1000 GRT under Note 1(i) of Section 2.16 of part II of scale of rates.
The Court opined that the view expressed by TAMP was binding on respondent as it was TAMP that had interpreted the scale of rates fixed by it and respondent had not challenged the interpretation/clarification of TAMP which was given on 01-03-2017. The Court stated that TAMP came to a final decision accepting the submissions made by petitioner, and if respondent was unhappy with TAMP’s finding, it could have challenged the same, but it did not.
The Court opined that by the said communication dated 01-03-2017, TAMP only interpreted what it meant by Section 2.16 in the Scale of Rates that it had fixed. Further, in the communication dated 01-03-2017, at the end, it was stated that “this issues with the approval of Competent Authority”. Thus, the Court rejected the contention that communication dated 01-03-2017 was not an order passed by TAMP but only an opinion. The Court opined that even if it was an opinion of TAMP, every order or judgment was the opinion of the Court, Authority or the Forum interpreting the provisions of law.
The Court noted that TAMP gave its decision on 01-03-2017 after hearing both petitioner and respondent and the power to give decision and its authentication was founded in Section 47-F of the MPT Act. The Court opined that though the term “decision” was not defined under the MPT Act, it would mean a conclusion preceded by reason to arrive at conclusion and whenever a question was determined after weighing reason for and against a proposition, it was a decision. A decision means not merely a view but an objective determination based upon facts and circumstances of each case after examining the material on record and after hearing the parties who were going to be aggrieved by the same.
Thus, the Court held that in the present case, the communication dated 01-03-2017 would constitute a decision since it determined an issue that at what rate respondent was entitled to charge based on the documents produced and after hearing petitioner. The Court, therefore, rejected the contention that the communication dated 01-03-2017 did not constitute a “decision”.
[Raj Shipping Agencies Ltd. v. Board of Trustees, Port of Mumbai, 2024 SCC OnLine Bom 2113, decided on 27-06-2024]
*Judgment authored by: Justice K.R. Shriram
Advocates who appeared in this case :
For the Petitioner: Prathamesh Kamat a/w Kayush Zaiwalla i/b Apurva Mehta; Prathamesh Kamat a/w. Kayush Zaiwalla, Ashish Verma and Apurva Mehta i/b Vipin Sharma
For the Respondent: Vishal Talsania a/w Nina Motiwalla i/b Motiwalla & Co.
