JUDGMENT

Ashim Kumar Banerjee, J.

1. The respondent No. 1, P.G. Modak & Sons, was a partnership firm carrying on business of clearing and forwarding Agents under the license granted by the Appellant No. 1. The license was issued under Bye law No. 55A. Section 56 and 58 of the Major Port Trusts Act, 1963 (hereinafter referred to as the said Act of 1963) deal with the mode of realisation of charges short levied or erroneously refunded or quoted.

2. Between April 1988 and July 1988 the respondent No. 1 cleared goods belonging to various importers and exporters from the port of Haldia upon payment of Port charges so levied upon them. The Port Trust, however, at the time of levying such port charges erroneously gave credit for 14 days free period whereas the consignees were entitled to 7 days free period. The Port Trust raised supplementary bills upon the respondent No. 1 at a subsequent stage. The respondent No. 1 expressed their inability to pay the same on the ground that since they 'cleared goods during the said period belonging to various importers and exporters, it was not possible for them to make payment of the said subsequent bills. The Port Trust gave several reminders for payment of the short levied amount aggregating to Rs. 11.15 lakhs. The respondent No. 1 by their letter dated January 3, 1994, however, prayed for time to make payment of the said short levied amount which was ultimately not paid by the respondent No. 1.

3. On January 11, 1994 the respondent No. 1 filed the instant writ petition, inter alia, asking for quashing of the bills raised by the Port Trust being the difference of the Amount of Port charges which were short levied upon the respondent No. 1.

4. The writ petition was heard and disposed of by the learned Single Judge by judgment and order dated July 20, 1999. The learned single Judge held that those undercharged bills were not raised contemporaneously on the respondent No. 1. For such mistake the respondent No. 1 could not be held responsible since the mistake was committed by both the parties. The writ Court, being a Court of equity should apply the equitable principle. Hence, the writ petition was allowed as according to His Lordship the respondent No. 1 should not be foisted with additional liability imposed upon them at a belated stage.

5. The Port Trust preferred the instant appeal along with an application for stay. The Division Bench by judgment and order dated September 15, 1999 admitted the appeal and granted stay of operation of judgment and order and directed hearing of the appeal on the papers of the stay application.

6. The appeal was heard by us on the above mentioned dates.

7. Perusal of the documents disclosed in the pleadings reveals as follows:

(i) Prior to February, 1988, 15 days free period was allowed to all the consignees to clear the goods until notification dated March 10, 1988 was issued reducing the said period from 15 to 7 days.

(ii) Cargo was released between April 1988 and July, 1988 availing 15 days free period despite notification dated March 10, 1988. According to Port Trust this was done by mistake.

(iii) On May 5, 1988 a further notification was issued without changing the free period.

(iv) From August, 1988 to December, 1988 the respondent No. 1 cleared various cargo availing 7 days free period.

(v) Between February, 1989 and July, 1989 the Port Trust upon discovering their mistake raised various supplementary bills amounting to Rs. 11.15 lakhs upon the respondent No. 1 for release of cargo between April, 1988 to July, 1988.

(vi) Series of reminders were given by the Port Trust from August 7, 1990 to December 15, 1993. Ultimately by letter dated January 3, 1994 the respondent No. 1 denied their responsibility on the ground that they had already sent letters to the concerned importers, however, such an attempt was unsuccessful. The respondent No. 1 contended that they acted as a Commission Agent of the disclosed principals and as and when they would realize the supplementary bills from the importers/ consignees they would make payment to the Port Trust. They ultimately prayed for sometime in that regard.

8. Shortly after serving the said letter dated January 3, 1994 the petitioner approached this Court by filing the writ petition on January 11, 1994.

9. Sections 56 and 58 of the said Act of 1963 being relevant, herein are quoted below:

Section : 56

Notice of payment of charges short-levied or erroneously refunded:

(1) When any Board is satisfied that charge leviable under this chapter has been short levied or erroneously refunded, it may issue a notice to the person who is liable to pay such charge or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice. Provided that no such notice shall be issued after the expiry of two years.

(a) When the charge is short levied, from the date of the payment of the charge:

(b) Where charge has been erroneously refunded, from the date of refund.

(c) The board say, after considering the representation if any, made by the person to whom notice is issued under the Sub-section (1) determine the amount due from such person shall pay the amount so determined.

Section : 58

Rates in respect of goods to be landed shall be payable immediately on the landing of the goods and rates in respect of goods to be removed from the premises of a board, or to be shipped for export, or to be transhipped shall be payable before the goods are so removed for shipped or transhipped.

10. On perusal of the sections quoted (supra) it appears to us that board is empowered to charge for the short levied amount by issuing notice to the person liable to pay such charge provided such notice is issued within two years. In the instant case admittedly the supplementary bills were raised within two years. Under bye-laws 55A the person intending to act as clearing Agents are to obtain requisite license from the Custom Authorities upon furnishing a bond with a security Rs. 500/-as guarantee, inter alia, for making payment of all demands of the Port.

11. The parties before us cited as many as five Supreme Court decisions and one Calcutta High Court Division Bench decision which are as follows:

(i) (The Sales Tax Officer, Benaras and Ors. v. Kanhaiya Lal Makund Lal Sharaf)

(ii) Keshav Adke v. Govind Joti Chavare

and Ors.

(iii) (The Commissioner of Sales Tax, U.P. Lucknow v. Parson Tools & Plants, Kanpur)

(iv) The Trustees of the Port of Madras v.

Aminchand Pyarelal and Ors.

(v) 1987 (28) Excise Law Times page 334 Board of Trustees for The Port of Calcutta v. Indian Rayon Corporation Ltd. and Anr.

(vi) Babu Verghese and Ors. v. Bar Council of Kerala and Ors.

12. Let us first find out the law laid down by the Apex Court and the Division Bench of this Court on the subject controversy.

(i) (The Sales Tax Officer Benaras and Ors. v. Kanhaiya Lal Makund Lal Sharaf.

In this case the Apex Court interpreted the term "mistake" in the context of Section 72 of the Contract Act. The Apex Court observed that if any payment is made in excess by mistake that must be repaid. The mistake lies in thinking that the money paid was due when in fact it was not due and that mistake, if established, entitles the party paying the money to recover it back from the party receiving the same.

(ii) Keshav Adke v. Govind Joti Chavare

and Ors. Paragraph 25 of this decision was relied upon by the respondent No. 1. The Apex Court held that where a power is given to do a certain thing in a certain way, "the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden.

(iii) The Commissioner of Sales Tax U.P. Lucknow v. Parson Tools & Plants. Kanpurl:

This case was also cited by the respondent No. 1. Here, the Apex Court held that where the legislature clearly discloses its intent in the scheme and language of a statute, it is the duty of the Court to give effect of the same without scanning its wisdom or policy. The Apex Court also held that if the legislature in a special statute prescribed a certain period of limitation for filling a particular application thereunder and provides in clear terms that such period on sufficient cause being shown, may be extended, in the maximum, only up to a specified time limit and no further, then the tribunal concerned has no Jurisdiction to treat within limitation, an application filed before it beyond such maximum time specified in this statute.

(iv) (The Trustees of the Port of Madras v. Amichand Pyarelal and Ors.

The Apex Court herein held that the bylaw framed by the Port Trust by virtue of the power granted under the major Port Trust Act has its statutory clothing and can not be declared ultra vires on the ground of unreasonableness. Those who desire to avail of the services of the Board are liable to pay for those services at prescribed rates and to perform the conditions framed in that behalf by the Board.

(v) of Trustees for The Port of Calcutta v. Indian Rayon Corporation Ltd. and Anr.

This case dealt with the lien of the Port Trust under Section 59. We do not find any relevance of this decision in the instant case.

(vi) Babu Verghese and Ors. v. Bar Counsel of Kerala and Ors.

Here the Apex Court while interpreting rule framed under Advocates Act 1961 held that if Rule 6 was intended to be applied, then all of its requirements should have been fulfilled. It is a basic principle of law if the manner of doing a particular action is prescribed under any statute, the act must be done in that manner or not at all.

13. On a sum total of the proposition of law laid down by the Apex Court as discussed above our understanding of the law on the subject controversy is as follows:

(i) The Port Trust is entitled to frame schedule of Port charges in accordance with the provisions of the statute.

(ii) Such charge so levied by the Port Trust is binding upon the licensee under Rule 55 A of the by-laws.

(iii) A statutory provision has to be followed in the manner it is required to be followed.

(iv) Once such procedure is deviated such action can not be held to be good as it has not been done under the appropriate provision of the statute applicable therefor.

14. In the instant case admittedly for the relevant period the respondent No. 1 was not entitled to 15 days free period. The Port Trust by mistake undercharged them contemporaneously. Under Section 56 Port Trust was entitled to raise supplementary bills within a period of two years. Such statutory provision was applied strictly in accordance with the provision of Section 56 read with Rule 55A of regulation. Hence, the respondent No. 1 was obliged to make payment of the differential amount through supplementary bills. It might be a fact that by passage of time it would be difficult for the respondent No. 1 to collect such differential amount from the consignees or the consignor being their principal. Such difficulty cannot absolve the respondent from their liability to pay.

15. With all humility may we say that the learned Judge was perhaps not correct to apply the principle of equity in the facts and circumstances of this case as the claim of the appellant was not only strictly in terms of the statutory provision but also raised within the prescribed period so provided under the statute.

16. The appeal thus succeeds. The judgment and order of the learned single Judge is set aside.

17. We however, give one year time from date to the respondent No. 1 to pay off the supplementary bills so raised by the Port Trust amounting to Rs. 11.55 lacs approximately being the subject matter of the appeal.

18. The appeal is disposed of accordingly without any order as to costs.

19. Urgent xerox certified copy would be given to the parties, if applied for.

Tapan Mukherjee, J.

20. I agree