M. A. Mazid and another Vs. The Chairman, Chittagong Port Authority and others,

M. A. Mazid and another

Vs.

The Chairman, Chittagong Port Authority and others,

Supreme Court

Appellate Division

(Civil) 

Present:

Syed J. R. Mudassir Husain C J

Mohammad Fazlul Karim J

Amirul Kabir Chowdhury J

M. A. Mazid and another………………..Petitioner

Vs.

The Chairman, Chittagong Port Authority and others…………..Respondent

Judgment

18th July 2004

Lawyers Involved: 

Khondker Mahbubuddin Ahmed, Senior Advocate, instructed by Md. S.R. Khoshnabish, Advocate-on-Record- For the Petitioners. 

Habibul Islam Bhuiyan, Senior Advocate, instructed by Mahmuda Begum, Advocate-on-Record- Respondents Nos. 1-4. 

Civil Petition for Leave to Appeal No. 749 of 2004

(From the judgment and order dated 5th January 2004 passed by the High Court Division in Writ Petition No. 5806 of 1997).

Judgment               

                 Mohammad Fazlul Karim J: The writ petitioners seek leave to appeal against the impugned judgment and order dated 05-01-2004 passed by the High Court Division in Writ Petition No. 5806 of 1997 making the rule absolute-in-part.

2. The rule in the matter was issued by the High Court Division calling upon the writ-respondent Nos. 1-4 to show cause as to why impugned order (Annexure-G and H to the writ petition) vide No. DC/BS/271/2356 dated 16-07-1997 issued by respondent No. 4 preferring a bill of Tk. 1,68,00854.48 for VAT as charge and sell charges in respect of the delivery of vessel M.V. Blue North (Annexure A) should not be declared to have been made without lawful authority and of no legal effect and why a direction should not be issued to the Chittagong Port authority to deliver the vessel M.V. Blue North to auction purchaser-petitioner stating, inter alia, that the petitioner M. A. Mazid was the Managing Director of petitioner No. 2 Mazid Steel Corporation Ltd. being the highest bidder in the auction, purchased the vessel M.V. Blue North for a consideration of Tk. 2,21,00,000:00 on 31-05-1997 in accordance with the order passed by the Admiralty Court of the High Court Division in connection with Admiralty Suit No. 28 of 1996. The sale was confirmed on 22-06-1997. The Chittagong Port Authority (CPA), respondent No. 1, sent letter on 13-07-1997 and 14-07-1997 showing dues against the said vessel claimed by the CPA, Karnaphuli Fertilizer Co. Ltd (KAFCO) and Chittagong Urea Fertilizer Ltd (CUFL) and demanded a total sum of Tk. 1,68,00,854.48. Both the orders of the respondent No. 1 (CPA) have been challenged to be without lawful authority mainly on the ground that no authority is conferred upon the aforesaid respondent to impose any berth hire charges without approval of the Government and publication of the notices in the official Gazette showing rate of charges as provided under section 19 of the Chittagong Port Authority Ordinance, 1976 (Ordinance LII of 1976).

3. The respondent Nos. 1-2 filed an affidavit-in-opposition stating, inter alia, that the Chittagong Port Authority realises berth hire/occupancy charges in pursuance of Notification No. CF & AO-IV (158) / 1197 dated 4-9-1986 published in the Bangladesh Gazette. Section 18 of the Chittagong Port Authority Ordinance 1976 empowers the Chittagong Port Authority to permit erection and maintenance of private docks. The Chittagong Port Authority entered into the agreement with the CUFL and KAFCO on 01-01-87 and 24-07-94 regarding operation and realisation of berth hire charges of their own Jetties. The location of those Jetties are within the territory and control of the Chittagong Port Authority, and as such the respondents are fully competent to realise berth hire charges. There is no illegality or lack of authority in the acts of demanding port charges from the petitioners. The auction purchaser of the vessel is therefore liable to pay the Port dues and outstanding charges in accordance with the order passed by the Admiralty Court. The auction purchaser M. A. Mazid also wrote a letter dated 8-7-1997 to the Chairman of the Chittagong Port Authority to know about the outstanding Port dues against the said vessel. Accordingly, the Deputy Conservator, Chittagong Port Authority informed him vide letter dated 16-07-1997 that the purchasers had to pay Tk. 1,68,00,854.48 to the port authority. But on receiving claim, the purchaser of the vessel filed the present writ petition and obtained the rule nisi, and the Court also directed the respondents to deliver the vessel to the petitioner on furnishing bank guarantee against the dues claimed. On receipt of bank guarantees, the Chittagong Port Authority released the vessel in terms of the order passed by the Court. Subsequently, it was detected that the petitioner furnished forged bank guarantees and as such the petitioners, in effect, violated the order of the Court. Thus the rule is liable to be discharged.

4. The City Bank ltd. impleaded itself as a respondent in the rule and filed an application with an information to the Court that the Bank guaranteed furnished by the writ-petitioner purported to have been issued by the said Bank at the time of getting the vessel released from the Port were not genuine. No such bank guarantee was issued by the Bank as per bank records and no sanction or confirmation of such bank guarantee was given from the Head Office of the City Bank. Those bank guarantee numbers correspond to security documents issued for others and do not tally with the petitioner’s bank guarantees and    thus fake bank guarantees were obtained in collusion with two bank officers of Agrabad Branch  and  criminal case has already been started against them and respondent has already filed an affidavit-in-opposition contending that the petitioner never applied for  the  bank guarantee and no security was furnished against the aforesaid bank guarantee, so the Bank has no responsibility for pay money against  those  bank  guarantees submitted by the petitioner for release of the vessel.

5. The High Court Division upon hearing the parties observed that since the petitioner was allowed to take away the vessel from the custody of the Port authority on the basis of the said bank guarantee and that when the bank guarantee furnished by the petitioner are not encashable on allegation of fraud and forgery as the issuing City Bank already refused to pay the money against the security documents, the ends of justice would be met if the petitioner are directed to furnish fresh bank guarantee or deposit the charges money in favour of the Chittagong Port authority to give effect to the condition precedent attached to the order of releasing the ship passed by the Court on 18-08-1997. The High Court Division has observed that the dispute between the petitioners and the City Bank as to the genuineness of the bank guarantees furnished by the petitioner is not possible to be settled in the present form as it requires adjudication of factual aspect by evidence and accordingly, while discharging the rule High Court Division directed the petitioner to furnish a fresh bank guarantee in place of previously furnished defective bank guarantee or to satisfy the claim of Chittagong Port Authority within six months from the date.

6. Khondkar Mahbubuddin Ahmed, the learned Counsel appearing for the petitioners submitted that the High Court Division failed to appreciate that section 14 of the Ordinance expressly provides for the scale of charges including charges for the storing and keeping of any goods stored, in any premises belonging to the respondent No. 3 and also provides by section 19 for framing of scales of charges and section 19 (2) also provides that every scale framed under sub-section (1) shall be submitted to the Government and after approval or modification by the Government, shall be published in the official gazette but no such scale has yet been framed and placed before the Government for its approval inasmuch as such instrument was never published in the official gazette as required under section 19 (2) of the Ordinance and thus the claim of the respondent Nos. 1 is without lawful authority. The learned Counsel further submitted that the High Court Division failed to appreciate that the demand having been made manifestly without lawful authority inasmuch as the Ordinance does not contain any provision to charge by any private owners such as KAFCO or CUFL of any Port dues as made in the present case. The learned Counsel lastly submitted that the High Court Division having found that “The dispute between the petitioners and the City Bank as to genuineness of the Bank Guarantees furnished by the petitioner is not possible to be settled in the present forum as it requires adjudication of factual aspect by evidence”, erred in giving direction upon the petitioners to furnish fresh bank guarantee, such direction being contradictory and beyond the scope of the rule nisi issued in the Writ Petition No. 5806 of 1997.

7. The High Court Division in the impugned judgment found that:

“Article (sic) 18 of the Ordinance 1976 has given power to the Port Authority to accord permission to Private Companies for construction of Jetties in the Port area, but those private companies were not given any authority to collect charge from any commercial Vessel independently for use of their Jetties. The Port Authority, therefore, holds absolute power to realise charges under Article (sic) 19 of the Ordinance subject to prior approval of the Government and Gazette Notification on 10-1-1991 and amended schedule of charges was published in the Official Gazette under Article (sic) 19 of the Ordinance where rates of berth hire charges are laid down. Berthing and un-berthing tariff is compulsorily payable to the CAP, and the KAFCO and CUFL have no authority to collect the same from any Vessel even if their private Jetties were used. Written agreements in this respect executed under Article (sic) 18 of the Ordinance 1976 are enforceable. So the CPA appears to have charged berth hire charges by the impugned letter under lawful authority and those charges come within the meaning of port duties which are supposed to be paid by the auction purchaser (petitioner) as per order of the Admiralty Court. Scales of charges and fees as notified by the official Gazette are also applicable for imposing charge of berth occupancy for KAFCO, CUFL Jetties as the Chittagong Port authority, is alone vested with absolute power to regulate and control berthing and movement of the vessel and navigation within the Port area under Article (sic) 9 and determine scale of such charges under Article (sic) 19 of the Ordinance of 1976. So Article 83 of the Constitution creates not bar -in view of the fact that the Chittagong Port Authority derives power from the legislation itself.”

8. In that view of the matter and perusal of the relevant law we do not find any substance in the submission of the learned Counsel for the petitioner that the Chittagong Port authority is not empowered to collect its dues in respect of private Jetties belonging to KAFCO and CUFL.

9. Since the vessel M.V. Blue-north has been released by order of the High Court Division from the care and custody of Chittagong Port authority by furnishing the bank guarantees as furnished by the petitioner in respect of claimed amount in the Annexure-G and H to the writ petition allegedly issued by the City Bank, Agrabad Branch, Chittagong being No.. CBA/23/1997 dated 21-08-1997 for an amount of Tk. 1,68,00,854.48 and another bank guarantee being No. CBA/24/1997 dated 26-08-1997 for an amount of Tk. 28,23,254.22 and the said bank guarantees have been alleged by the issuing bank to be forged and fabricated, the High Court Division has lawfully directed the writ petitioner to furnish a fresh bank guarantee to replace the previously furnished alleged defective/forged bank guarantee and to satisfy the claim of the Chittagong Port authority within 6 months from the date but the observation that “the dispute between the petitioners and the City Bank as to genuineness of the bank guarantees furnished by the petitioner is not possible to be settled in the present forum as it requires adjudication of factual aspect by evidence” in the impugned judgment is hereby expunged.

With above expunction of the redundant observation, this petition is dismissed.

Ed.

Source: 2006, (AD)

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