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Petitioner: STANDARD VACUUM OIL COMPANY VS Respondent: THE TRUSTEES OF THE PORT OF CHITTAGONG
P L D 1961 Dacca 289
P L D 1961 Dacca 289
Before S. M. Murshed and B. A. Siddiky, JJ
STANDARD VACUUM OIL COMPANY ---Petitioner
versus
THE TRUSTEES OF THE PORT OF CHITTAGONG ---Respondents
Writ Petitions Nos. 61 to 63 of 1960, decided on 19th Decem ber, 1960.
(a) Writ‑Mandamus‑---
----Will not issue without evidence of specific injury‑High Court will decline to give mere opinion on matters of law‑Existence of right and alleged violation must be proved‑Notification NQ. 118‑Marine dated 25‑9‑1903 under Chittagong Port Commissioner Act, 1887‑Chittagong Port Act (V of 1914)‑Constitution of Pakistan (1956), Art. 170
There is no authority for the proposition that petitioners for issue of a writ of Mandamus are entitled to a mere opinion from Court or for directions on matters of law without making out a case of specific or imminent injury to them.
Apart from the enforcement of a legal duty imposed upon the respondents, the foundation for the issue of writ of Mandamus or orders, is the right of the petitioner, which is alleged to have been violated and which is sought to be enforced. In the total absence of such 'a foundation, the petition for the issue of a writ would be incompetent. Unless an aggrieved person makes out a specific case of an infringement of his legal right, he cannot maintain a writ petition with a view to obtain the reliefs asked for: There must be an actual infringement of right or an immediate threat of such infringement, to enable the High Court to acquire jurisdiction to deal with the situation.
Petitioners are not entitled to ask for a mere opinion of the Court on general proposition of law or for the issue of Writs or orders to prevent a‑ possible invasion. of their rights in future.
In the absence of a specific instance of injury to the petitioners, the High Court declined to give any opinion as to whether a. certain Notification under the Chittagong Port Commissioners Act, 1887, namely, Notification No. 118‑Marina, dated 25‑9‑1903 (whereby, such goods as had paid the river‑due when landed at the Port of Chitta‑gong from a sea‑going vessel, were exempted' from the payment of river‑due leviable on goods shipped into a sea‑going vessel under section 33‑A of that Art, if such goods were again shipped into a sea‑going vessel within a period of six months from the date of payment of the due or being loaded), was still in force or whether it had been abrogated by the operation of the Chittagong Port Act, 1914.
Held, that the petitioners could not expect the High Court to give a mere opinion in respect pf the construction and legality of various statutes and notifications relating to the Port of Chittagong without making any specific case of an illegal exaction or attempted exaction by the respondents.
(b) Writ---
---‑Delay‑Cannot be excused on plea of existence of "continuous threat" to petitioner‑Law of limitation "as such" not applicable to writ petitions‑‑Constitution of Pakistan (1956), Art. 170.
On the question of laches or delay in preferring a petition for writ, the petitioners' counsel's argument was that the impugned Notification issued (5 or 6 years ago) under a certain Act, viz., the Chittagong Port Act (V of 1914), if found to be illegal constituted a continuous threat to the petitioners and, therefore, the petitioners could maintain their applications for the issue of writs even after lapse of several years :
Held, that the fallacy of the argument lay in the fact that it treated this aspect of the case purely from the point of View of the law of limitation. There is no law of limitation, as such, with regard to writ petitions. But it is well -settled that High Court will refuse to exercise its discretion to issue grits of Mandamus or orders of alike nature, if the petitioners do not come to Court with due diligence and expedition. The petitioners are not entitled to a speedy and summary relief, if they Are themselves guilty of undue delay 'and laches in' seeking it: They would then be left to persue other remedies in accordance with law. The reason for this is obvious, namely, that those who, wish to seek a speedy and summary relief, must show an anxiety to seek it with diligence and promptness.
(c) Writ---
-‑Other remedy‑More convenient and beneficial arid likely to give more complete relief‑Writ refused‑Constitution of Pakistan (1956), Art. 170.
Fazlur Rahman and M. J. Jaffer with S. M. Hussain for Petitioners.
H. S. Suhrawardy with Md. Mozammel Huq for Respondents.
Dates of hearing : 30th November, 1960, 1st and 2nd December, 1960.
JUDGMENT
MURSHED, J.‑These three Writ Petitions are by three different Oil Companies engaged in the importation, storage and distribu tion of oil and petroleum products by sea‑going vessels into East Pakistan through the Port of Chittagong.
They all raise common points for decision and are directed against the realisation of certain river dues by the Trustees of the Port of Chittagong. They were all heard together by us, on the application of the parties concerned, and this judgment will dis pose of all the three applications.
It is averred that oil and other goods are landed at Chittagong Port from ocean‑going tankers and stored for a short period in special storage tanks and then shipped from Chittagong to various places for distribution inland. It is further alleged that all the vessels used for shipment of oil inland, are either "dumb crafts" or barges which are not mechanically propelled and which have no power of their own and, furthermore, that oil and. petrole um products are taken to various points of delivery for distribution in East Pakistan, including Khulna, Jhalakati and Chandpur. It is claimed that "dumb crafts" used for this purpose have not been classified as sea‑going vessels for, the purpose of paying port dues under The Ports Act of 1908, inasmuch as they have no independent means of propulsion. The petitioners have further claimed that the aforesaid types of vessels are not sea‑going vessels and consequently no river dues can be legally levied in respect of any goods shipped into such vessels.
Again it has been alleged that within a period of six months after having been landed, the said oil is shipped into the interior of East Pakistan to various destinations.
It appears that for a number of years, there have been some controversies between the said oil companies and the Trustees of the Port of Chittagong as to whether the said trustees can levy, charge and realise from the above‑named companies river dues for landing and shipment of oil and other commodities more 'than once in six months. There have been some other contro versies which we shall discuss hereafter.
The said companies (hereinafter referred to as the petitioners take their stand on a notification issued in the year 1903 by the Government of Bengal, being Notification No. 118‑Marine, dated the 25th of September 1903, published in the Bengal Gazette and reproduced in the current edition of the Chittagong Port Manual. The said notification, which has been appended as Annexure ` A ' to the petitions before us, reads as follows
"Notification No. 118‑Marine, dated the 25th September 1903.‑It is hereby notified for general information that, in exercise of the powers conferred upon him by section 44 of the Chittagong Port Commissioners' Act, 1887, the Lieutenant- Governor has been pleased to exempt such goods from the payment of the river‑due leviable on goods shipped into a sea going vessel under section 33‑A of that Act, as amended by Act IV of 1903, as have paid the river‑due when landed at that Port from a sea‑going vessel, if the same goods are again shipped into a sea‑going vessel within a period of six months from the date of payment of the due on being landed.
W. A. Inglis, Offg. Secretary to the Government Of Bengal."
By an Act of 1887, known as the Chittagong Port Com missioners' Act, 1887, the Port Commissioners of the Chittagong Port were authorised to frame a scale of toils, dues, rates and charges for the landing and shipment of goods from and in sea‑going vessels and vessels not being sea‑going vessels, respectively, at the wharves, quays, stages, jetties and piers by such vessels, and for the storing and keeping of any goods stored in any premises belonging to the Commissioners, for the removal of goods, and for the use of any moorings. Section 44 of the aforesaid enactment makes the following provisions :
"All acts and proceedings of the Commissioners shall be subject to the approval of the Local Government who may cancel, suspend or modify any acts or proceedings and may grant exemption from the payment of any tolls, charges, dues or rates leviable under this Act."
The Act of 1887, was amended and modified by Act IV of 1903. At the moment we are not concerned with the amending Act, as it did not modify the powers conferred on the Local Govern ment mentioned above.
The above notification of 1903, grants exemption for goods landed in Chittagong Port as have paid river dues at the time of their landing from being charged again on account of river dues if the same goods are shipped again within a period of six months from date of the first payment of river dues on the landing of the goods at the said Port.
It is, however, admitted that such dues can be charged again on their shipment after a period of six months from the first payment at the time of landing therein.
It is contended on behalf of the petitioners that charging river dues twice or more often within a period of six months would be illegal according to the exemption validly granted by the said notification of 1903.
It seems that this position was never challenged by the Port Authorities until, at least: 1955.
In the year 1956 a notification dated the 14th of April 1956, was issued and it was published as an advertisement in Part VII of the Gazette of Pakistan, dated the 27th of April 1957, stating that the aforesaid Notification No. 118‑Marine, dated the 25th of September 1903, was abrogated by the operation of the Chittagong Port Act, 1914, which repealed the Act of 1887 as well as the amending Acts of 1903 and 1912.
It may be mentioned here that the Act of 1887 as well as the amending Acts of 1903 and 1912, were repealed by the Act of 1914 which re‑enacted most of the provisions of the older Acts with the addition of some other new matters. At the present moment the relevant Act is the Chittagong Port Act, 1914, which has consolidated and amended the law relating to the Port of Chittagong and has repealed all provisions of enactments with regard to the said Port.
The petitioners have challenged the said notification of the 14th April 1956, as being bad in law and have asked for a writ of mandamus directing /the respondents to cancel, alter and/or rescind the same.
In the year 1955 respondents published a notification, dated the 31st of March 1955, in the Gazette of Pakistan, Part VII, on the 22nd of April 1955. This is marked as Annexure `B' to the petition and it reads as follows :
"In exercise of the powers conferred by subsection (4) of section 58 of the Chittagong Port Act, 19:4, (Bengal Act V of 1914) as amended up‑to‑date and in partial modification of notification, dated the 19th March 1951, published in the Gazette of Pakistan, Part III, dated the 6th April 1951, the Commissioners for the Port of Chittagong with the previous approval of the Central Government propose under subsection (3) of the said section 58, to levy, as a special case, river‑dues on the consignments transported by inland sea‑going vessels at Rs. 1‑2‑0 per half a ton or part thereof with effect from the Ist of May 1955.
M. A. Bary, Chairman, Port Commissioners."
The petitioners have also challenged the legality of this notification dated the 31st of March 1955, and have asked for its cancellation on the following grounds, namely, because (a) it does not comply with the mandatory provisions of section 58 (4) of the said Act, (b) under section 58 of the said Act there is no category provided for imposition of river dues on goods landed from or shipped into "inland and sea‑going vessels" and (c) it is ultra vires the powers of the respondents under section 58 of the said Act as modified by the notification dated the 25th of September 1903.
The petitioners have also challenged the validity of another notification, dated the 10th of September 1955, published in the Gazette of Pakistan, Part VII, dated the 30th of September 1955, which reads as follows :
"In exercise of the powers conferred under subsection (3) of section 58 of the Chittagong 'Port Act, 1914 (Bengal Act V of 1914), as modified up to December 1950, the Commissioners notification, dated 31st"March 1955, published in the Gazette of Pakistan, Karachi, Friday, April 22, 1955, Part VII, under which river dues were revised on the consignments transported by inland sea‑going vessels, as a special case; from Rs. 2‑4‑0 per ton or part thereof to Rs. 1‑2‑0 per half a ton or part thereof with effect from Ist May 1955, is confirmed with retrospec tive, effect.
M. A. Bary, Chairman, Port Commissioners, Chittagong."
The petitioners have added that the aforesaid notification, dated the 10th of September 1955, is also bad because it purports to give retrospective effect to its provisions.
By a letter, dated the 17th of May 1960, the respondents, Trustees of the Port of Chittagong, demanded of, the petitioners the payment of river dues which, according to the respondents, were long overdue. The said letter is marked as Annexure 'E' and it reads as follows :
"The Commissioners for the Port of Chittagong No. CA‑XXI (39)/5079.
"From
M. A. Bary, B.Sc. B.E., M.I.E. Chairman of the Commissioners for
the Port of Chittagong."
"Dated, Chittagong the 17th May 1960.
Subject ‑‑(I) Landing and Shipping Charges on petroleum products.
(2) River dues on shipment of oil.
"Dear Sirs,
In continuation of this office letter No. C.A.‑XXI,(39)/958, dated 25th June 1958, I have to state that your views were examined in detail by the Commissioners and the Ministry. It was held that the mention of a wrong subsection did not invalidate the Commissioners' Notification dated 14th March 1955, as this could be regularised by a corrigendum indicating the correct subsection of section 57 of the Chittagong Port Act. It was further held that your point of reference to Article 106 of The Pakistan Constitution, in support of your stand point, was not maintainable so that it would not in any way effect (sic) the Commissioners' levy.
"A corrigendum having since been gazetted on llth March 1960, as per notification in the Gazette of Pakistan, Karachi, Part VII (a copy of the Notification is enclosed herewith), and the Government of Pakistan, Department of In dustries, having regularly paid 'these charges on the coal handled at the Moorings, the failure of the oil companies in not paying the landing and shipping charges on petroleum products as also the River Dues on shipments of oil would constitute a violation of the provisions, of the Chittagong. Port Act.
"In the circumstances I would call upon you to pray immediately the above charges of the Commissioners with effect from 1'stApril 1955, as it will not be possible for the Commissioners to tolerate such evasion of payment of their dues' any longer. I would request you, therefore, to submit your Bills of Entry and Shipping Bills covering the handlings at the moorings together with three copies of challans covering each of the landing and shipping as the case may be.
"Yours faithfully, (Sd.) M. A.. Bary, Chairman. "Memo. No. CA‑XXI (39)/5080 dated 17‑5‑60."
The petitioners have also asked for the cancellation, withdrawal or rescission of the said letter of demand.
In pursuance of the aforesaid letter of demand, the petitioners in Writ Petition No. 61 of 1960, namely Standard Vacuum Oil Co. have paid a sum of Rs, 3,512 under protest to the respondents on the 25th of June 1960 ; the petitioners in Writ Petition No. 62 of 1960, namely, Burmah Shell Oil Storage and Distribution Company of Pakistan Limited, have paid a sum of Rs. 1,13,553 and the petitioners in Writ Petition No. 63 of 1960, namely Burmah Oil Co. (Pakistan Trading) Limited, have paid a sum of Rs. 17,000. It would be apparent that all the petitioners have paid the amount of money demanded of them, although under protest.
It has been contended on behalf of the petitioners that the Notification No. 118‑Marine, dated the 25th of September 1903, granting exemption from river dues on re-shipment of goods within six months from the date for payment of such dues upon the landing of the said goods, is still in operation. It was argued that on a repeal and re‑enactment of the provisions of the statute, orders passed under the repealed statute continued to remain in force until specifically rescinded or modified in a valid manner. Relying on clause 24 of the General Clauses Act and section 112 of the Act of 1914, it was submitted before us that the said noti fication No. 118‑Marine, dated the 25th of September 1903, con tinued to remain in force inasmuch as it was not specifically cancelled by the Central Government which alone could legally rescind the said notification. It was further argued that it was not correct to say that with the repeal of the Act of 1887 by the Act of 1914 all orders passed under the repealed Act of 1887 were abrogated.
It, was next contended that under section 58 of the Act of 1914 there could be no imposition of river dues on goods landed from of shipped into "inland sea‑going vessels" as the said section refers to "sea‑going vessels" and that there was no category of "inland 'sea‑going vessels". The point in this contention is, that inasmuch as the notification, dated the 10th of September 1955, published in the Gazette of Pakistan on the 30th of September 1955, purported to levy river dues as proposed in the notification dated the 31st or March 1955, on consignments transported by so‑called "inland" sea‑going vessels, the said notification is illegal and also bad, in so far as it purports to give retrospective effect to its provisions.
It was further contended that part of the oil shipment, in respect of which the respondents are demanding payment of river dues under section 58 of the said Act, consists of "bunker oil", which is supplied by the petitioners to various types of ocean going vessels. According to the petitioners, "bunker oil" supplied in thin way is used by those vessels solely as fuel for the ship's engines and is, therefore, in the nature of stores and cannot be considered to be cargo, merchandise or goods within the meaning of section 58 read with section 4 (4) of the said Act.
On the aforesaid allegations, each of the petitioners obtained a rule from this Court in the following terms :
"Let a Rule nisi issue calling upon the respondents to show cause why a writ in the nature of mandamus or an appropriate writ should not be issued directing them to implement the Notification No. 118‑Marine, dated 25‑9‑1903; to cancel, with draw or rescind the Notification dated 109‑1955 published in the Gazette of Pakistan, Part VII on 30‑9‑19,55 and Notification dated 14‑4‑1956 published in the Gazette of Pakistan, Part VII on 27‑4-1956, respectively, and also directing the respondents to cancel and withdraw their letter dated 17‑5‑1960, as prayed for, or such other or further order or orders passed as to this Court may seem fit and proper.
"Pending the hearing of this Rule, let the respondents be restrained by an injunction from giving effect to the Notification dated 10‑9‑55, and 14‑4‑56 or making any realisation pursuant to the said Notifications, in any manner whatsoever, as prayed for."
The respondents have traversed the allegations of the petitioners and have contended, inter alia, in their affidavit‑in‑opposition as follows
"10. That the statements made in paragraph 10 are denied.
It is not correct to say that invariably and in all cases the oil is shipped within a period of six months after having been landed.
"14. That the statement made in paragraph 14 is incorrect misleading and misconceived inasmuch as the Notification dated 31‑3‑1955 is not an independent or isolated Notification nor is the same designed to impose any new levy at the rate of Rs. 1‑2‑0 per half a ton as sought to be made out by the petitioner. The correct position is that the river dues in question have all along been in force at different rates since 1887. The Noti fication No. 118‑Marine dated 25‑9‑1903 issued under the existing Acts did not abrogate or withdraw the river dues but only allowed exemption from the payment of a second levy in case the imported goods are re‑shipped within 6 months. But the said Notification became null and void by reason of Schedule 2 of the Chittagong Port Act, 1914 and a specific Notification dated 29th March 1921, was issued under the said Act imposing the river dues. A true copy of the said notice is annexed hereto and marked B'.
"19. That with reference to the statement made in para graph 19 the deponent states that the said statements are mis leading inasmuch as the notice dated 17‑5‑60 has nothing to do with the Notification dated 10‑9‑55 or with the Notification dated 14‑4‑56 and the reference to Notification dated 25‑9‑1903 is uncalled for. The Oil Companies, including the petitioner hav ing persistently failed to make payment of certain legal and legitimate dues to the Port Commissioners in spite of repeated demands, the respondents had to write a strong letter on 11‑3‑59 and on 17th of May 1960. The letter dated 17th of May 1960 was the latest demand made on the Oil Companies for payment of the river dues along with Chittagong Port Act.
"23. That with reference to the statement made in paragraphs Nos. 23 and 24, the deponent states, that even bunker oil which is reshipped after being brought to Chittagong Port is subject to levies of river‑dues within the meaning of section 58 of the Chittagong Port Act. In fact, it is being realised from all parties from time immemorial and no party has ever raised any objection. In this connection Notification dated 29th of March 1921 and marked as annexure B' maybe referred to. It is denied that the bunker oil is in the nature of stores and cannot be considered to be cargo, merchandise or goods within the meaning of section 58 read with section 4 (4) of the said Act. The aforesaid Notification marked `B' is a clear answer to the contention raised. The deponent submits that the bunker oil is certainly "goods" within the meaning of section 58 (1) of the Port Act ; irrespective of whether the oil is consumed by the petitioner or sold to other vessels.
"24. That with reference to the statements made in para graph 25, the deponent begs to state that the petitioner is bound under the law to make the payment they have made and as such there is absolutely no question of any force having been applied to them by the respondents and save and except the Oil Companies including the petitioner, no other party has ever raised any objection to the payment of the river dues in question.
"25. That the various points of legal objections raised in various sub‑paragraphs of paragraph 26 are misconceived and incorrect as shown against the respective sub‑paragraphs as hereunder :‑
"(a) It is immaterial as to whether the "dumb crafts" are sea‑going vessels or not, inasmuch as the fact remains that they are towed by sea‑going vessels of which they are a part. As a matter of fact these crafts had already been classified as sea going vessels by the Central Government vide annexure `A (1) and A (2)'.
"(b) The objection raised in this sub‑paragraph is wholly misconceived inasmuch as under Notifications dated 31‑3‑55 and 10‑9‑55 the petitioner has only been allowed certain relief by way of reduction in the rate of river dues in respect of their vessels plying on inland waters. The petitioner has certainly the option to pay at higher rate if it so likes.
"(d) The contentions raised in sub‑paragraph (d) are denied. The deponent states that the petitioner has misconceived the word `inland' which has been used to specify the vessels operating within East Pakistan and these types of vessels were specified riot for the purpose of imposition of any new levies but for the purpose oft allowing. a concession in the form of reduced .rate. It is denied that the imposition of river dues is completely without juris diction and unlawful. It may be mentioned in this connection that the river dues are not like customs duty or cess or sales tax, etc, It is a charge for the use of the harbour of the Port which is to be maintained by elaborate river training works at very high costs. This is a special feature of the Port of Chittagong being located on a river. So a sea‑going vessel carrying cargo is charged every time it uses the harbour of the Port, the basis of charges being the quantity of goods carried.…
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