JUDGMENT
Jayanta Kumar Biswas, J.
1. The writ petitioners are seeking declarations that with respect to their dumb barge which used a berth of the board they could be made liable to pay rates only according to Section 26.2 of the scale of rates notified by notification No. 469 dated October 3rd, 1996, and not at the rates mentioned in Section 22.1. Thereof, as demanded by the board, and that the order of the tariff authority for major ports dated August 27th, 2002 upholding the case and demand of the board, being without jurisdiction, is a nullity.
2. In 1989 the first petitioner approached the board with a proposal to set up a floatel on the river Hooghly. The board decided in principle to permit the setting up of the floatel. The terms and conditions of the permission were mentioned in its letter dated September 11th, 1989. It was, inter alia, stated that the first petitioner would pay a monthly fee of Rs. 1,49,745.00 for an area measuring 2690.83 sq. metres. For the purpose the first petitioner imported a completely assembled hull from Singapore. It was towed by a ship, and in June 1995 it arrived at the location. Since the army authorities raised objections to the mooring of the barge near the Man-0-War Jetty, it was shifted to berth No. 9 and then to No. 18 of the Kidderpore Dock, Kolkata of the board. The construction works for the five storied structure of the floatel were carried out while the barge lay at the dock.
3. By a letter dated July 22nd, 1995 the first petitioner informed the harbour master (port) of the board as follows:
Kindly note that our Barge “Gold Float” which arrived sandheads on 21st June. 1995 was towed by Tug “Smit Langkawi” whose agents are Pat Volk Ltd., Calcutta.
As per our contract with Tug Owners “Smit Langkawi” all charges upto No. 9 K.P.D. both for Tug “Smit Langkawi” and Barge “Gold Float” are payable by Pat Volk Ltd., Calcutta.
All charges for “Smit Langkawi” upto sailing out upto sandheads are payable by Pat Volk Ltd., Calcutta.
Charges for Barge “Gold Float” accruing at No. 18 K.P.D. including shifting charges from No. 9 K.P.D. to No. 18 K.P.D. are payable by Manor Floatel Limited.
In this connection, we enclose herewith the following two receipts of deposits kept with Calcutta Port Trust for your information and necessary action:
1. Receipt No. 0661 dated 16th May, 95 amount of Rs. 1 lac.
2. Receipt No. vide our letter No. MFL.CalcuttaPT:379-95 dated 27th June, 95 amount of Rs. 8,39,500/- in the form of K.V.P.
Totalling Rs. 9.39,500 only.
Invoices for Port charges and other expenses as per scale of rates for Calcutta Dock System of Calcutta Port Trust accruing at No. 18 K.P.D. including shifting charges may please be sent to us for settlement.
4. By a letter dated September 20th, 1995 the board called upon the first petitioner to pay the rates demanded by bill dated August 31st, 1995. It was stated that the rates had been levied treating the vessel as one engaged in coastal trade. The board informed the first petitioner that there was no scope to levy the rates payable by boats, flats, barges and motor launches for their entry and overstayal. The board stated that since the vessel was using a berth, the first petitioner was liable to pay berth hire charges. The first petitioner was also called upon to produce permit from the registering authority treating the vessel as an inland vessel. It was mentioned that in default it would be treated as one engaged in overseas trade, and that rates would be levied accordingly. The first petitioner produced the temporary pass dated September 28th, 1995 permitting the vessel to be considered an inland vessel registered under the Inland Steam Vessels Act, 1917, and the Barge Registration Rules, 1952. It requested the board to raise the bill treating the barge as an inland vessel, and not as a coastal vessel. Rates payable for keeping the vessel lying at the berth of the dock upto July 2nd. 1995 were admittedly paid by Pat Volk Ltd. The first petitioner, however, declined to pay the similar berth hire charges demanded by the board.
5. In 1996 the first petitioner moved this Court by filing a writ petition (matter No. 798 of 1996): it was moved alleging that the board was not allotting the land and water space for setting up of the floatel. State and army authorities were also made parties in that writ petition. On the basis of certain terms of settlement that writ petition was disposed of by an order dated September 25th, 1997. In that case the question whether berth hire charges were payable was not raised. By a letter dated May 15th, 2001 the board said that since the gross registered tonnage of the vessel changed for the huge construction works undertaken by the first petitioner, rates would be levied on the basis of the changed tonnage. In the meantime with effect from January 9th. 1997 Section 52 of the Major Port Trusts Act, 1963 was omitted, and the tariff authority for major ports was constituted.
6. Alleging that the board was wrongfully demanding berth hire charges, though it was not liable to pay such charges, the first petitioner approached the authority by preferring an appeal dated August 20th, 2002. It requested the authority to give a ruling, “that the “Hull” “Gold Float” which is a “Non Self Propelled Craft” should be charged Dock Dues for Stayal at 18 Kidderpore Dock as per provisions for the Current Scale of Rates of Calcutta Port Trust under Item No. 26.2(iii) which is Stayal Charges for “Non Self Propelled Craft.” By order dated August 27th. 2002 the authority gave the ruling that though it was doubtful whether rates could be levied treating the thing as a costal vessel there was nothing to find fault with the action taken by the board that demanded berth hire charges calculated on the basis of the lower rate.
7. Thereafter the petitioners took out this writ petition dated August 18th, 2003 for the reliefs noted before. The principal question in the case is at what rate the rates can be levied by the board for occupation and use of the berth by the vessel during the period from July 3rd. 1995 to May 17th, 2004: the incidental question is what is the effect of the order of the authority dated August 27th, 2002. The case of the petitioners, as made, out in paras 23. 24 and 26 (read with prayers) of the writ petition is that under misconception of law they erroneously approached the authority, though it had no jurisdiction or power to decide the dispute. On the strength of the Apex Court decision in State Bank of India v. Ram Das and Anr. , counsel for the board has contended that having invited the jurisdiction and power of the authority, the petitioners are not entitled to question the order given by it raising the plea of lack of jurisdiction and power. As to the proposition, counsel for the petitioners has not joined issue. He has rather said that the petitioners have decided not to press the contentions regarding lack of jurisdiction and power of the authority to make the order, and not to press as well the prayer seeking declaration that the order is without jurisdiction and hence a nullity in the eye of law.
8. Having said so, he has assailed the order of the authority by invoking the principle of rationality. By referring me to the decisions in Anisminic Ltd. v. The Foreign Compensation Commission and Anr. [1969] 1 All ER 208. Tata Cellular v. Union of India (1994)6 SCC 651 and Cellular Operators Association of India and Ors. v. Union of India and Ors. , he has argued that the order is irrational in that having noticed that it was doubtful whether the board was entitled to levy charges at the rate applicable to vessels engaged to coastal trade, the authority all at once concluded in favour of upholding the action of the board. His contention is that on the facts of the case the authority ought to have determined the rate applicable to the vessel, particularly when the situation was not expressly covered by any provision of the scale of rates. His submission is that after setting aside the order the matter should be remitted to the authority for determing the rate applicable to the vessel. Needless to say that counsel for the board has found nothing wrong with the order of the authority.
9. Although the petitioners consistently contended that the barge could not be treated as a vessel, in course of argument their counsel conceded that it could be considered a vessel. His contention, however, is that since it is not a vessel engaged in foreign or coastal trade, the board was not entitled or empowered to levy berth hire charges by applying Section 22.1 of the scale of rates, though it actually occupied and used a berth during the period in question. His argument is that during that period the vessel, lying at the berth static and stationed, was not engaged in any trade. He has said that the petitioners never intended to use it for carrying on any coastal trade. His argument is that since the vessel is admittedly a barge, charges can be levied by the board only according to rates mentioned in Section 26 of the scale of rates. He concluded by saying that unless a rate was especially fixed by an appropriate authority, berth hire charges could not be levied by the board by applying provisions in Section 22 of the scale of rates, simply because the vessel occupied and used a berth during the period in question.
10. Counsel for the board has argued that when there is no dispute that the barge is nothing but a vessel, which can be engaged in foreign or coastal trade, and that it actually occupied a berth and enjoyed all the facilities when the construction works were carried on. there is no reason why the board should not levy rates for berth hire prescribed by provisions in Section 22 of the scale of rates. His contention is that the question is not whether the vessel was actually engaged in any coastal trade, but is whether it could have been engaged in such trade. His argument is that there is no reason to say that the vessel was not capable of being engaged in coastal trade, when there is no dispute that it crossed ocean and bay while it was being brought from Singapore. He has argued that the petitioners having accepted their liability, as will appear from their letter dated July 22nd, 1995, cannot be permitted to raise any dispute regarding the rate at which the rates were levied, particularly when Pat Volk paid at that rate for the same vessel.
11. The order of the authority has been challenged by the petitioners on more than one ground; the jurisdictional question being one of them. I think they are quite within their rights to waive the ground of lack of jurisdiction of the authority to make the order, and yet to press the other grounds; that is exactly what their counsel has done, But then the question is whether there is any scope to challenge the order in question. Counsel has argued that since the board, without demur, participated in the proceedings before the authority, a judicial review of the order is available. He says that in any case interest of justice should be considered the warrant for exercising the power of judicial review. I am unable to agree with him. The petitioners preferred the appeal, without there being any right for that. No provision of the Major Port Trusts Act, 1963 conferred any power on the authority to entertain any appeal or representation for adjudicating any issue raised therein; no adjudicative power of any nature was conferred on the authority. The limits of its powers were clearly marked by the provisions in Sections 48, 49, 49A, 49B, 50, 50A, 50B and 51 of that Act: they empowered it only to frame scales and fix dues for the various purposes mentioned therein.
12. Even by their consent the parties could not confer the jurisdiction and power on the authority to entertain and decide the appeal, – an illegitimate thing producing an extrajudicial decision. An order or a decision of a statutory authority can be subjected to judicial review of the Writ Court only when it is made in exercise of power conferred by the statute. An order or a decision such as the present one, being nothing more than an opinion, when made or given by a statutory authority qua. as it were, a good Samaritan, in my view, is not open to any judicial review or scrutiny. The remedy is not available, because the Writ Court cannot recognise the consensual conferment of any extrajudicial power on a statutory authority by the parties. Then again, the matter cannot be remitted for a fresh order or decision, unless the Writ Court exercises an inherently unavailable power to confer the requisite power on the statutory authority concerned.
13. I therefore do not see how the order of the authority impugned in this case can be subjected to judicial review. Even if fault is found with it, the writ powers cannot be exercised for remitting the matter to the authority for a fresh decision in the appeal. Even otherwise, I do not find any merit in the contention that the decision of the authority is irrational. On the facts narrated therein, in my view, it cannot be said that the views expressed by the authority could not be any possible ones. On the admitted fact – the hired berth was occupied by the vessel the contention that engagement in foreign or costal trade was to be decisive was merely meretricious. So the doubt recorded by the authority was actually of no consequence, it was ultimately right in its opinion.
14. I find no reason to accept the case of the petitioners that their liability was to be governed by Section 26.2 of the scale of rates. That provision deals only with the question of stayal charges payable by boat, flat, barge, and motor launch entering the docks, not with berth hire charges payable by a vessel for using a berth at the dock. This is specifically covered by Section 22.1. It provided that a vessel occupying a berth at the Kidderpore Dock would be charged at the rate prescribed thereunder. In this case admittedly the vessel of the petitioners occupied a berth at that dock. By its letter dated July 22nd, 1995 the first petitioner even accepted the liability for using the berth, though in absence of that letter also it would have been liable to pay the statutory berth hire charges. The other user of the berth duly paid the berth hire charges with respect to the same vessel.
15. I fully agree with counsel for the board that for determining the applicable rate the test was not whether the vessel was actually engaged in foreign or costal trade, but whether it was capable of being so engaged. There is no reason to say that the vessel in question was not capable of being engaged in costal trade. Since the petitioners hired the berth, they were simply liable to pay berth hire charges. When the board, of its own accord, decided to levy the rates at the lower rate. 1 do not see how demand made by it can be said to be arbitrary or unfair or unreasonable. The petitioners knew what charges one was required to pay for hiring a berth at the dock, this is apparent from their letter dated July 22nd, 1995. It is surprising that they just managed not pay the charges for such a long period as is involved in the case. On the facts, their grossly belated approach to the Writ Court cannot be accepted as a bona fide move. I find that they are just not entitled to get any relief on merits or in equity.
For these reasons I dismiss the writ petition without any order for costs.
Signed and urgent certified xerox copies of this Judgment shall be supplied to the parties on the usual undertakings.