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PETITIONER: INTERNATIONAL AIRPORTS AUTHORITY OF INDIA ETC. ETC.

       Vs.

RESPONDENT: M/S GRAND SLAM INTERNATIONAL & OM ETC. ETC.

DATE OF JUDGMENT21/02/1995

BENCH: SAHAI, R.M. (J) BENCH: SAHAI, R.M. (J) BHARUCHA S.P. (J) VENKATACHALA N. (J)

CITATION:  1995 SCC  (3) 151        JT 1995 (2)   452  1995 SCALE  (1)859

ACT:

HEADNOTE:

JUDGMENT: 1.   International Airports Authority of India  (hereinafter referred   to  as  ’IAAI’)  and  the   Central   Warehousing Corporation, Container Freight Station, Patparganj (in brief ’CWC’) obtained leave of this Court under Article 136 of the Constitution  of India against direction issued by the  High Court of Delhi for release of imported goods without payment of any demurrage charges for the period for which  detention certificate had been issued by the Customs Authorities. 2.   What persuaded the High Court to take   this  view   in favour of the respondents was founded  on  construction   of Section 45(2) of the Customs Act, 1962 ("Act" for short) and issuance   of   detention   certificate   by   the   Customs Authorities.   What  is  the  nature  of  the  certificates? Whether 460 they arc binding on the IAAI?  Is there any conflict in  the Public   Notice  issued  by  the  Customs  Authorities   and Regulations  framed by the IAAI, are some of  the  questions which arise for consideration in these appeals.  But  before adverting to these issues facts in brief may be mentioned. 3.      In Appeal No.798 of 1992 the respondent  filed  with the  Customs  Authorities bill of entry  on  cargo  terminal alongwith all documents to seek clearance of goods,  namely, printing  papers  etc.  of CIF value  of  Rs.17,846.00.  The valuation  given  in the bill of entry was  objected  to  by Additional  Collector of Customs, and he passed an order  on 8th  November 1989 enhancing the value of the goods and  di- recting  confiscation of the same.  In appeal  the  Customs, Excise  &  Gold  (Control)  Appellate  Tribunal,  New  Delhi quashed the order of the Additional Collector of Customs  on 3rd July 1990.  Since the order enhancing the valuation  and directing confiscation was quashed the Collector of  Customs issued detention certificate from 7.8.1989 to 12.7.1990.  It was mentioned in the certificate that the detention was  due

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to case of the respondent pending before the Collector  and, in the appeal.  The respondent. thereupon applied for waiver of  the demurrage charged for the relevant period.  On  18th December 1990 it presented an application showing as ’out of charge’  of  the Customs.  But on 9th January  1991  it  was informed  by the appellant that the total liability  of  the demurrage   charges  was  Rs.  1,49,  100/-  out  of   which Rs.79,364/- was waived for the period of detention that  is, 7.8.89 to 12.7.90. The appellant further condoned the period from  18.12.90 to 9.1.91 as the application for  waiver  was received and processed during this period.  According to the appellant the respondent was liable to pay  Rs,69, 736/-  as on  9.1.91  and thereafter the liability  was  Rs.300/-  per package  per week or part thereof The liability of  the  re- spondent till 12.6.1991 was determined at Rs. 1,15,936/-. 4.   In  Appeal  No.4227 of 1992 the respondent  imported  a consignment  of wool waste.  It was seized by the  Collector of  Customs  under  Section 1 10 of the  Act  as  on  sample examination  it  appeared’ to be synthetic waste  which  was restricted item which could not be imported without a  valid import  licence.  The respondent was issued notice  to  show cause  why  the goods of declared value  of  Rs.  1,93,237/- should not be confiscated under Section 111(d) and III  (in) of  the  Act  and action under Section 112  be  taken.   The explanation  of  the  respondent that test  being  based  on sample  drawn on 10% examination was not correct nor did  it represent test of entire consignment, was not accepted.  And the  respondent  was given an option to clear the  goods  on payment of Rs.50,000/as fine and in addition penalty of  Rs. 1,00,000/-.   In appeal on test of 7 1 % of  consignment  by the chemical examiner it was held that consignment was  wool waste.   Consequently  the  appeal  was  allowed.   And   in :pursuance  of  the  order of the  Tribunal  the  Additional Collector  of Customs passed the order dated  17th  December 1990  directing  release of the On 24.1.1991  the  Assistant Collector  sent  a letter to the appellant  that  since  the goods of the respondent were seized by Customs Department on 29th April, 1986 and they have been directed to be  released by  the Additional Collector of Customs on  17.12.1990  the, ’demurrage/  ground  rent  and  other  charges  accrued   on consignment from 29.4.1986 to 29.12.1990 may be 461 waived’.   The  appellant replied this letter  on  25.1.1991 informing the Assistant Collector of Customs that the matter for  waiver  of  ground rent for  the  period  31.1,1987  to 29.12.1990  has  been referred to the  Regional  Office/Head Office.  But the Assistant Collector, Customs was  requested to  inform  the importer that they will have to  bear  entry fee,  handling and insurance charges and ground  rent  after 29.12.1990 in case the Head Office agrees for waiver. 5.In  Appeal  No. 3971 of 1992 the respondent  had  imported multi-cable-transit/ cable sealing system.  The clearance of goods  was claimed under Tariff Item No.85.47 on payment  of duty @ 135.75%. The department on the other hand directed it to  be  cleared by paying duty @ 181.75% under  Tariff  Item No.39.  However, the claim of the respondent was  ultimately accepted.  And provisional clearance was granted on  payment of  demurrage  charges.  After the claim  was  accepted  the respondent  wrote a letter to the appellant that  since  the claim had been accepted by the Customs Authorities and  IAAI at  the  time of release had stated that  this  question  of refund shall be considered after final decision was taken by the Customs Authorities the amount of Rs.3,26,645/- paid to- wards  demurrage  may be refunded.  But the  respondent  was informed that the claim of refund was not admissible.

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6.In  each of these cases the Customs Department had  issued Detention  Certificate  and informed IAAI and  CWC  that  no demurrage  may  be charged for the period during  which  the goods were in custody of IAAI or the CWC due to pendency  of adjudication  proceedings.  But the IAAI or the CWC  instead of treating entire period as free period granted rebate  and calculated demurrage in accordance with Rate Schedule framed by  them.  The amount of demurrage in each case came  to  be two  or  three  times  more than the  value  of  the  goods, therefore, the respondents approached the High Court by  way of  writ petitions under Article 226 of the Constitution  of India.  The petitions were allowed and it was held that  the IAAI  or the CWC being custodian of the  Customs  Department could  not ignore the Detention Certificate,  therefore,  no demurrage  could be charged for the period  the  proceedings were pending.  The High Court relied on M/s Trishul Impex v. Union  of India [1991(2) Delhi Lawyer 1].  This decision  in its turn relied on an earlier decision given ’in Trans  Asia Carpets  v. Union of India, CCP No. 97/87.  The decision  in Trans  Asia  (supra) proceeded on the  basis  that  Airports Authority  being  an agent of the Collector of  Customs  was bound by the Detention Certificate granted by the  Collector of  Customs.  In Trishul Impex (supra) it was held that  the container  depot  where the goods were deposited  being  the custodian  for  Customs  Authorities it  was  bound  by  the certificate and was liable to release the goods without  any demurrage, 7.   It  is  the  correctness of this  view  that  has  been assailed  in  these appeals.  The learned  counsel  for  the appellants  urged  than the power to levy demurrage  by  the IAAI  is derived from the International  Airports  Authority Act,  197 1. It could not be regulated or controlled by  any other   Statute.    It  was  submitted  that   the   Customs Authorities  could  neither  levy demurrage  nor  waive  it. Therefore,  the Detention Certificate could not  compel  the appellants to treat the entire period during which the goods remained in their custody to be free 462 period.   According to learned counsel in any case the  Rate Schedule  for  demurrage  having been made  in  exercise  of statutory  power  and  the appellants  having  been  granted waiver  to the extent of 80% under the Policy framed by  the IAAI the respondents were not entitled to any relief. 8.The word ’demurrage’ defined in clause (g) of Regulation 2 of the Regulations framed by the IAAI is extracted below:-               "Demurrage means the rate or amount payable to               the  airport  by  a shipper  or  consignee  or               carrier for not removing the cargo within  the               time allowed." Similar word used in Port Trust of Madras Act, 1905 came  up for interpretation before this Court in Trustees of the Port of  Madras  v. M/s Aminchand Pyarelal & Ors., (1976)  1  SCR 721.   It  was explained that the word was not used  in  the strict  mercantile  sense, ’but merely to signify  a  charge which  may  be  levied on goods after  expiration  of  ’Free Days’.   This  ratio  has been reiterated in  The  Board  of Trustee of the Port of Bombay v. Indian Goods Supplying  Co. (1977) 3 SCR 343 and Board of Trustees of the Port of Bombay v.  Jai Hind Oil Mills Company & Ors (1987) 1 SCR 932.   The dispute,  thus is. whether the days or period  during  which adjudication  proceedings  were pending before  the  Customs Authorities  could  be  considered to be free  days  on  any principle of law, statutory or otherwise, Or it can be  held to be so on construction of Regulations and policy framed by the MM read with the Act and the Public Notice issued  under

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it.  ’But before coming to it, it appears necessary to state that the basic controversy that arose in Aminchand  Pyarelal (supra)  and  Indian Goods Supplying  Co.  (supra)  centered round  whether a consignee could claim immunity from  paying any demurrage when the detention of the goods was not due to any fault or negligence of the importer.  It was answered in the  negative.  In the latter decision that is Indian  Goods Supplying  Co.  (supra)  the Court after  referring  to  the earlier  decision   in Aminchand Pyarelal (supra)  and  some English decisions held:               "The  position therefore is that  even  though               the delay in clearing the goods was not due to               the  negligence of the importer for  which  he               could be held responsible yet he cannot  avoid               the payment of demurrage as the rates  imposed               are under the authority of law the validity of               which cannot be questioned. But that is not the issue in these appeals.  The respondents did not claim any immunity from payment of demurrage because their goods were detained for no fault on their part.   What was  claimed and accepted was that the IAAI or CWC  being  a custodian  of Customs Department the intimation given by  it that no demurrage should be charged from the respondent  for the  period  mentioned in the detention  certificate  should have  been  accepted and acted  Pon by it.  To  examine  the correctness  of this claim it is necessary to ascertain  the nature  of relationship between the Customs  Department  and IAAI  and notice certain provisions in the Act,  the  Public Notice  issued under it, the Regulations by the MM  and  the rate  schedule  framed  by it.  Section 45  of  the  Act  is reproduced below: "45.  Restrictions on custody and removal of imported goods. - (1)  Save as Otherwise provided in any law for the time being in force, all imported goods unloaded in a customs area shall remain in the custody of such person as  may be approved by the Collector of Customs  until  they are  cleared for home consumption or are warehoused  or  are transshipped  in accordance with the provisions  of  Chapter VIII. (2)  The  person having custody of any imported goods  in  a customs  area, whether under the provisions  of  sub-section (1) or under any law for the time being in force, -               (a)   shall  keep a record of such  goods  and               send a copy thereof to the proper officer;               (b)   shall  not  permit  such  goods  to   be               removed  from  the customs area  or  otherwise               dealt  with,  except under and  in  accordance               with the permission in -writing of the  proper               officer." This  section  ’permits removal of imported goods  from  the ’customs  area’ which under clause (II) of Section 2 of  the Act means "2. (11) "customs area" means the area of a customs  station and  includes any area in which imported goods  or  exported goods  arc  ordinarily  kept  before  clearance  by  Customs Authorities;" It  is  thus clear that the imported goods are kept  at  the airport  or the Warehousing Corporation in the customs  area over  which  it is the Customs  Department  which  exercises control.   No goods can be removed from there either by  the importer or even the Custodian.  The detention is to  enable the Customs Department to proceed in accordance with law and determine if the valuation disclosed was correct or the 463

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goods  had been properly imported etc.  A  person  importing the goods is required to comply with rules and  notification issued   by  the  Government  permitting,   prohibiting   or regulating  import.  Whether the importer is complying  with the  rules  or  not and acting in  accordance  with  law  is entrusted  to  the  Customs Department.   No  goods  can  be cleared  except with permission of the  Customs  Department. Therefore,  it  is by operation of the  statutory  provision that  an area specified as customs area is under control  of the  Customs  Department.   In fact fictionally  it  is  the Customs Department which for purposes of imported goods, its checking, storage, release etc. is in control of it. 9.   The  imported  goods are detained in the  customs  area either for assessment of duty under Section 17(3) and  17(4) of  the Act or for clearance under Sections 45 to 47 of  the Act.   These  appeals  arc  concerned  with  detention   for clearance.   The levy of demurrage for detention at the  in- stance of Customs Department during adjudication proceedings engaged attention of the p 161 Government even in past.   In Indian  Goods  Supplying  Co.’s  case  (supra)  the  Central Government  issued  a  letter  requesting  the  Port   Trust Authorities  to modify its rates as it was  unreasonable  to charge  an importer any demurrage once it was accepted  that clearance  was  delayed  on account of  reasons  beyond  his control.   But since this was only a letter of  request  and the  Board  in pursuance of it opted for  graded  scale  the court  was  of  opinion that it could not be  treated  as  a direction binding   on the Port Trust. 10.      It appears the Collector of Customs, New  Delhi  in order  to overcome this difficulty and for  maintaining  and regulating  control over goods which arc unloaded at  Indira Gandhi International Airport, issued 464 Public  Notice  in 1986 in exercise of powers  vested  under Sections 8, 33, 34 and 45 of the Act read with Rules 56, 57, 58 and 59 of the Aircraft Rules, 1920.  Paragraph (a) of  it specifies  the limits of customs area as whole  of  existing area  constituting the Indira Gandhi International  Airport, New  Delhi  including domestic arrival and  departure  area, Cargo Terminal New International Terminal Complex  (’CTNITC’ for   short)  and  the  entire  premises  of   the   Central Warehousing  Corporation located at Gurgaon Road, New  Delhi excluding  M/s IAAI’s Import Cargo Warehouse (Monkey  torn). Paragraph  (b) approves all places where parking/halting  of aircraft  is permitted by the Civil Aviation Depart.  merit, the   International   Airport   Authority   of   India   for unloading/loading of imported/ export goods.  Paragraph  (c) assigns functions under Sections 33 and 34 of the Act to the officers  of the Customs/Air Customs posted at IGI  Airport. Paragraph  (d) approves M/s IAAI as custodian of  the  cargo under  Section 45 of the Act.  The cargo is required  to  be stored in IAAI’s CTNITC subject to the conditions - (i) that the  cargo shall be subject to the control of customs;  (ii) that  M/s  IAAI  shall  maintain  detailed  account  of  all imported  and exports goods received by them as  ’custodian’ and shall produce such account for inspection by a  gazetted officer of customs. 11.  Sub-paragraph (vii) of paragraph (d)    which        is material reads as under:               "(vii)  In case of goods detained/seized  etc.               by  customs, the  wirehousing/storage  charges               shall  be  calculated by M/s.   IAAI  for  the               period due minus the chances for the period of               detention  at  the  instance  of  Customs   as               certified   by  the  Assistant  Collector   of

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             Customs The language of the sub-paragraph is clear and  unambiguous, Unlike  the letter of request sent by Central Government  in Indian Goods Supplying Co.’s case (supra) it is a  direction by the Collector of Customs to the custodian of goods at the airport  or the warehouse not to charge any  warehousing  or storage charges for the period the goods detained or  seized by  the  Customs Department are kept in custody  subject  to the issuance of a certificate by the Assistant Collector  of Customs that the goods were detained at the instance of Cus- toms Department.  But what was urged by the learned  counsel for  the  appellants  was that this Public  Notice  was  not binding on the appellants as they were independent statutory bodies.   To  examine  the merit  of  this  submission,  the question  that  arises is whether the Notice was  issued  in valid exercise of power.  If it be so then what  consequence flow out of it?  It will then have to be examined whether it is binding on the appellants.  And lastly even if it is  not binding the Public Notice issued by the Collector of Customs and  rate schedule framed by the appellants  being  parallel legislation  occupying  the same field how  should  they  be construed?  The validity of the Notice was not challenged by the appellants.  As a matter of fact it was not adverted  to either  by the High Court nor any reliance was placed on  it by the respondents.  But reference of it was found in one of the  decisions rendered by the High Court and thereafter  on our  request,  the learned counsel for  the  appellants  sup plied copies of it.  Even when the appeals  were listed  for further  hearing the learned counsel for the appellants  did not  urge and  probably rightly that it was issued  in  vio- lation  of  statutory  power or  the  Collector  of  Customs exceeded its jurisdiction yet it appears necessary to  trace the source of 465 power  of this Notice as it shall have important bearing  on the  legal  effect of it.  It purports to have  been  issued under  Sections 8, 33, 34 and,45 of the Act and Rules 56  to 59  of  the  Aircraft Rules, 1920.  Each  paragraph  of  the Notice appears to have been issued to carry out the  purpose of the Sections mentioned in it.  For instance, Section 8 of the; Act empowers the Collector to approve proper places  in the  airport  for unloading of goods and clause  (b)  of  it empowers  the  Collector to specify the  limits  of  customs area.   Paragraph (a) of the Notice achieves  this  purpose. Paragraphs  (b)  and (c) of the Notice have been  issued  to carry out the objective of Sections 33 and 34 of the Act and Rules  57 to 59 of the Aircraft Rules which provide for  un- loading  of goods at approved places with permission of  the proper officer of the Customs Department.  Paragraph (d) and its various sub-paragraphs achieve the objective, of Section 45  by spelling out details of restriction subject to  which the  custodian may carry out its activities  of  warehousing imported  goods.   It is thus obvious that  the  Notice  was issued  to  carry  out purposes of  the  Act.   Section  156 empowers  the Central Government to frame rules and  Section 157  empowers the Board to make regulations consistent  with the  Act to carry out the purposes of the Act.  Section  152 empowers  the Central Government to issue notification  that any  power  exercisable by the Board under the  Act  may  be exercised  by the Collector of Customs.  It is  not  claimed that  no notification was issued by the  Central  Government empowering  the  Collector  to exercise the  powers  of  the Board.   Therefore,  the Collector could exercise  the  same power as the Board.  Consequently, the Notice issued by  him cannot  be said to be invalid.  It must be assumed  to  have

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been issued in exercise  of  powers  under Section 157  to  carry  out  the purposes of the Act. 12.The  next  question  is what is the  consequence  of  it. Clause  (b)  of  sub-section (2) of Section 45  of  the  Act extracted  earlier provides that the persons having  custody of the imported goods in customs area, that is, IAAI or  CWC shall  not permit such goods to be removed from the  customs area  or otherwise deal, with except in accordance with  the permission  in  writing of the proper officer.  :  The  word ’otherwise’ is defined in Standard Dictionary to mean, ’in a different manner, in another way’.  In Webster dictionary it is  defined  to  mean,  ’in a  different  manner,  in  other respects’.    The   expression,  ’otherwise   dealt   with’, therefore, widens the ambit of the restriction placed on the custodian. It places complete embargo on the IAAI or CWC  to deal  with the imported goods placed in its custody  in  any manner.  The two restrictions.that is prohibition to  remove goods and dealing with it in any manner otherwise completely debar  the  custodian from exercising any right  or  control except with the permission of the proper officer of  Customs Department.   No  discussion is needed to  explain  the  ex- pression  that  the  custodian of the  goods  shall  not  be entitled  to  remove  the  imported  goods  but  it  appears necessary  to  explain the scope  of  expression  ’otherwise dealt with’.  How it has to be understood in the context  in which it has been used?  That would obviously depend on  the nature of functions of the custodian, in respect of imported goods.   Section 16 of the International Airports  Authority Act, 1971 is the only Section which lays down the  functions which are required to be performed by the IAAI.  Clause  (d) of subsection (3) of Section 16 empowers the. 466 IAAI to establish warehouses at the airport for the  storage or processing of goods.This would include providing for levy of charges for storing of goods, handling it, insurance etc. And  on failure to pay the charges to dispose of the  goods. The  IAAI  has in fact framed Regulations to carry  out  its function  of  warehousing.  It shall be adverted  to  later. But  in view of clause (b) of sub-section (2) of Section  45 of  the Act it cannot deal with goods placed in its  custody in  any  manner except with the permission  of  the  Customs Department.   The function of the appellants in  respect  of warehousing  of  the goods would, thus, be  covered  in  the expression,  ’otherwise  dealt with’ used by clause  (b)  of sub-section (2) of Section 45 and, therefore, the appellants could  not  deal  with the imported  goods  or  perform  any function without obtaining an order in writing by the proper officer.   This  would obviously include the  right  of  the appellants  to sell the goods for non-payment of  demurrage. That  is  the appellants even though  independent  statutory bodies are precluded from dealing with the goods or  selling it without obtaining permission of the proper officer.  This restriction  on  the right and power of the  appellants  has been  statutorily  regulated by issuing Public  Notice.   It does not interfere with the right of the appellants to frame their  rate  schedule  and charge demurrage.   Nor  does  it interfere with right to charge dues for keeping the goods in the  warehouse.  It only provides that where the goods  have been  detained  or  seized at the instance  of  the  Customs Department  the dues might be calculated minus this  period. This  could have been done by the Central Government or  the Board  or the Collector.  Therefore, the issuance of  Public Notice  directing the appellants not to charge any dues  for the period the goods

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were detained would be covered in the expression, ’otherwise dealt  with’.  It is further strengthened by Section 150  of the  Act which lays down precedence for sale of goods  which are  not confiscated.  The payments to the  Custodian  under clause  (d) of sub-section (2) of the Section is to be  made only  after meeting the expenses of sale, freight and  duty. The  appellants could not, therefore,  ignore  sub-paragraph (vii)  of  paragraph  (d) of the Notice.  It is  no  more  a request  by the Central Government but an exercise of  power by  the appropriate authority under the Statute.  It is  not inconsistent with any provision of the Act. 13.It  would not be out of place to mention that Chapter  IX of  the Act deals with warehousing.  Section 63 of  the  Act falls in it.  It deals with payment of rent and  warehousing charges.   Sub-section (1) of  it requires the owner of  any warehoused  goods  to pay to the warehouse-keeper  rent  and warehouse  charges at the rates fixed under any law for  the time being in force or where no rates arc so fixed, at  such rates  as  may be fixed by the Collector of  Customs.   Sub- section  (2) of Section 63 empowers the warehouse-keeper  to sell the goods if the dues are not paid within ten days from the  date  it becomes due.  But the right can  be  exercised only  with permission of the proper officer.  Therefore,  it cannot  be  legitimately urged that the  Customs  Department could  not  issue a Notice which would affect the  right  of appellants to fix charges etc.  The Public Notice issued  in 1986 does not interfere with rate schedule of the appellants but it only fixes free period or period during which no rent can  be  charged  in  exercise  of  statutory  power.    The International Airports Authority Act, 1971 does not preclude the Cus- 467 toms Department expressly or impliedly from framing any such regulations. 14.What  is apparent from a study of these various  Sections of  the  Act  is that the provisions  in  the  International Airports   Authority  Act,  1971  and   Regulations   framed thereunder cannot be read in isolation so far as the custody of  imported goods placed under it by Customs Department  is concerned.    If  sub-paragraph  (vii)  of  the  Notice   is understood,  as  urged  by  the  learned  counsel  for   the appellants,  as having no effect on the appellants  as  they are  statutory bodies then it would result in rendering  the Notice  as  dead letter or waste paper or  it  would  create conflict  between two parallel provisions in  two  different statutes  dealing  with same subject, That would not  be  in consonance  either  with  principles  of  interpretation  or construction.   Both  the  Act  and  International  Airports Authority  Act  are  central  enactments.   In  either,  the Central  Government is empowered to make rules to carry  out the  objective  of  the  Act.   Both  the  legislations  are directed  towards promoting social welfare.  The  should  be interpreted so as to advance public good and social justice,               "Just  as  the different  words,  phrases  and               provisions of a statute should not be isolated               and given an abstract meaning, so the  statute               itself   in   its  entirety  should   not   be               interpreted  solely  by reference to  its  own               terms,  but rather by reference to  the  other               laws  of the state, and particularly to  those               pertaining  to the same subject".  Crawford’s,               Interpretation of Laws, 1989 p. 420. 15.  Legislations,  rules  or  regulations  are  enacted  to regulate  the  day to day activities.  But  they  cannot  be exhaustive and the practical difficulties arising in working

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467 out  these have to be resolved by developing  principles  by the  court which are justice oriented, serve public  purpose and  promote  social  interest,  of  course,  without  doing violence to the language of the Section and the objective of enactment  and  if the provision was enacted to  remedy  any event then to construe it in a manner in which it may  carry out  the  objective of the enactment which was  intended  to suppress  the  mischief.  The Notice appears  to  have  been issued in the first instance to mitigate the hardship of the importers  and  therefore it should be construed  so  as  to remedy  the  mischief  which was intended  to  be  remedied. Apart  from  that  the court’s  duty  while  construing  two provisions  covering the same field is to harmonise the  two provisions  in such a manner that none of them are  rendered otiose.  But that would be the result if sub-paragraph (vii) is  ignored.   The duty of the court is  to  effectuate  the social  purpose  by  resorting to such  construction  as  is beneficial and does not cause harm to any one or is rendered self-defeating.   How  such  construction  shall  be   self- defeating shall be explained later. 16.  Further, the intention and purport of the Notice is  to avoid  any harassment and loss to a consignee.  It  attempts to   reconcile  the  necessity  arising  out  of   statutory functions performed by it and yet protects an importer  from unintended  and, may be in some cases, unjustified delay  in release of goods resulting in huge demur rage. For  instance in  these  very appeals the demurrage charges are  three  to four times of value of the goods.  And that too when it  has been  found that delay was due to adjudication  proceedings. It  is to overcome this practical difficulty  yet  statutory necessity that the Customs Department is- 468 sued Public Notice in 1986.  The IAAI or the CWC being  only custodian of the Customs Department could not ignore the de- tention  certificate issued in exercise of this  power.   No such Public Notice issued in exercise of power under Section 45 of the Act arose for consideration in the earlier  cases. In  Aminchand  Pyarelal  (supra)  the  decision  turned   on validity  of  bye-laws framed by the Port  Trust.  ,  Clause 13(b) of it provided for graded,charges for the period goods were   detained   on  account  of   import   Trade   Control Formalities.   It  was held by the High Court  to  be  ultra vires  as charging demurrage,for period when  consignee  was not at fault was unreasonable and unwarranted.  It was  this view of the High Court which was reversed as the byelaws had been   framed   by   a  Port  Trust   whose   members   were representatives  including  a Customs  Officer.   The  Court found  after examining Section 109 of the Act that  levy  of graded demurrage was neither arbitrary nor unreasonable.  In the  other  decision  that is  Indian  Goods  Supplying  Co. (supra) the Court accepted the claim of the Port Trust  that it  being  entitled to claim demurrage  under  the  contract entered  with the consignee the same could not be denied  to it  unless  it was found -that the delay in release  of  the goods was due to conduct of the Port Trust.  Therefore,  the ratio  of  these decisions is not helpful  in  deciding  the effect of detention certificate issued by the Assistant Col- lector  of  Customs  under the Public  Notice  issued  under Section 45 of the Act.  When the goods were entrusted in the custody  of  IAAI  it was aware of the  Public  Notice.   It should be deemed to have accepted the custody subject to the condition.  In fact the statutory provisions leave no option for  the IAAI or CWC after 1986 except to act in  accordance with the provisions of the Act.  The custody by the IAAI  or

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CWC  is not as it is popularly understood in the  commercial sense.    It  is  a  statutory   custody  governed  by   the provisions  of  law.  Therefore, once rules were  framed  or Public Notice was issued in exercise of statutory power  the IAAI  or  CWC cannot set up the claim  that  the  intimation issued  by the Customs Department could not be   taken  into account  for determination of free days.  Even on  principle of  bailment the, IAAI or CWC cannot escape from the  effect of  detention  certificate., Clause (6)  of  Procedures  and Tariff  of  CWC  provides that subject to  above  terms  and conditions,  the rights and liabilities of  the  Corporation shall be as that of a bailee.  A bailment under Section  148 of  the Indian Contract Act, 1872 means ’delivery of  goods, by  one person to another for some purpose, upon a  contract that  they  shall,  when the  purpose  is  accomplished,  be returned  or otherwise disposed of according to  the  direc- tions of the persons delivering them’.  Here the goods  were handed  over to,, the IAAI or CWC for the statutory  purpose contemplated  by Section 45 of the Act.  The, goods were  to be returned after completion of proceedings as directed  by, the  Customs  Department.  Section 160 of the  Contract  Act specifically  provides for the bailee to return  or  deliver the   goods  according  to  the  bailor’s  directive.    The direction  not  to charge any demurrage does not  result  in making  the  IAAI  as a gratuitous bailee  as  the  IAAI  is entitled  to charge insurance charges, handling charges  and demurrage  except the dues mentioned for the period  in  the detention   certificate.    Therefore,  once   the   Customs Department  issued directive to release the  goods,  without charging  any  ground  rent in pursuance  of  Public  Notice issued  under Section 45 the appellants as bailee could  not but to follow the direc- 469 tions  which were in accordance with law.  The  relationship of  bailor and bailee arises out of the statutory  provision between  the Customs Department and the IAAI or CWC and  not with  the  consignee.  It does not make the IAAI or  CWC  a, gratuitous  bailee.   In  any case, even if  any  amount  is legally due, the IAAI may claim from Customs Department  but not from consignee. 17.  The Regulations framed by the IAAI may now be examined. The   IAAI  has  framed  International  Airports   Authority (Storage  &  Processing  of  Goods)  Regulations,  1980   in exercise  of  the  powers conferred  by  subsection  (1)  of Section 37 of the International Airports Authority Act  1971 (43 of 1971). Clause (g) of Regulation 2 of the  Regulations defines  ’demurrage’  which  has  been  extracted   earlier. Regulation  4 empowers the IAAI to  levy  charges/surcharges which   may  include  terminal  charges,  storage   charges, handling  charges,  demurrage, charges to  cover  insurance. Regulation  5 empowers the authority to fix and revise  from time  to  time scale of charges referred to in  the  Regula- tions.   Regulation  6 empowers the Chairman  to  waive  the charges  in. deserving cases for reasons to be  recorded  by him.   He  is further empowered to delegate  his  powers  to Director of Cargo and Airport General Manager. 17A.  Regulation 8 is extracted below:               "Charge of cargo - The cargo will be stored in               the International Air Cargo Complex under  the               control    and    supervision    of    Customs               Authorities, While the Authority would be  the               custodian of the import Cargo delivered to  it               by the carriers the responsibility for  export               cargo  would  be that of die  shipper  or  his               agent  before  customs  examination,  of   the

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             Customs in               469               respect  of detained cargo during  examination               and    of   the   carriers    after    customs               examination." Even  according to these regulations the imported goods  are under the control of  the Customs Department.  It acts  only as  custodian  of  the  goods  on  behalf  of  the   customs Department.   ’It is not the agent of the  consignee.   Once the aircraft lands and the goods arc handed over to the con- signee the agreement between the carrier and consignee comes to  an end and thereafter inspection by the Customs  Depart- ment, its detention and direction to store in the ’specified area’   till  the  adjudication  proceedings  we  over   arc statutory  powers exercised under the Act. The IAAI  has  no option.   It cannot refuse inspection nor can it  refuse  to keep the imported goods.  There is no material difference in the  rules  framed  by the Customs  Department,  the  Public Notice  issued by it and the regulations framed by  the  MM. The IAAI is custodian under either of the Customs Department ’Therefore  it  could not ignore the notice  or  the  letter issued  by the Assistant Collector of Customs in  pursuance, of  it.  As  regards  CWC it has  not  only  been  appointed custodian  under  Section 45(11) of the Act but  the  Public Notice  issued in November 1984 provides that it, ’would  be required  to comply with the provisions of Section 45(2)  of the   Act  ibid  as  well  as  rules  and  regulations   and instructions  issued from time to time on the  subject  men- tioned above’. 18.  In  pursuance of Regulation 6 IAAI has framed a  policy of  waiver of demurrage charges.  It is framed on  principle of   ’capacity   to  pay’.   Paragraph  2  of   the   Policy incorporates  the general principles.  It divides the  cargo imported for purpose of free period into three classes;  (1) commer- 470 cial,  (2)  unaccompanied baggage,  and  (3)  non-commercial cargo.   It  allows  seven calendar days from  the  date  of landing  as  free period to  commercial  and  non-commercial cargo whereas the unaccompanied baggage is allowed 14  days. Clause  (d) provides that unscheduled holidays  declared  by Central Government would be considered as free period.   And clause  (e) allows as free period the period  of  processing application  for  waiver,  of  demurrage.It  further  allows threedays for postal communication as free period, But Para- graph  3  provides  that  beyond  the  period  mentioned  in Paragraph  2,  the  cargo may be entitled  to  remission  of demurrage in the circumstances mentioned therein.  Paragraph 3.1   provides  that  wherever  detention   certificate   is submitted from the competent authority that the detention of the goods was for no fault of consignee, then the  consignee shall  be  entitled to demurrage on the scale  mentioned  in sub-paragraphs (a) to (g).  Clause (a) deals with  detention of   goods  by  the  Customs  in  connection   with   I.T.C. formalities.  It provides for 80% waiver for first 90  days, 50%  thereafter for six months and full charges  thereafter. Clause (b) permits 80% waiver for period under detention  in transfer, ’of residents appeal where the appellate authority decides the case in favour of the consignee without imposing any  penalty’.   And clause (c) allows 80% waiver  for  full period  of detention where the detention  certificate  shows that detention was by, customs for analytical purposes, such detention should be for specific Analytical Test by  Customs Control  Laboratory  or Central  Drugs  Control  Laboratory. This  policy  was  framed by the IAAI in  1979  whereas  the

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Public Notice was issued in 1986.  For purposes of detention of imported goods by the Customs.  Department at Indira Gandhi International Airport, therefore, Paragraph 3.1 has to be read that where detention certificate has been issued  by the Customs Authorities in accordance  with  sub- paragraph  (vii) of the Public Notice no demurrage shall  be charged for the period mentioned in it. 19.  Same  is  the result even if the policy framed  by  the IAAI  is  examined from another aspect.  The  definition  of ’demur  rage’ has already been extracted.  It  mentions  the rate or amount payable by the consignee for not removing the cargo within the time allowed.  The regulation do not  throw any  light  on  the expression  ’within  the  time  allowed. Paragraph 3 of the Regulations provides the procedure to  be followed for the storage and processing of the goods in  the International Air Cargo Complex at the airport.  Clause  (b) relates to imported goods.  It provides that the goods shall be   received  by-the  officials  of  the   Authority/Ground Handling agency from the carrier in the presence of  Customs officials.   The consignee will be responsible  for  getting his  consignment examined by Customs and obtaining  ’out  of charge’ endorsement.  It further provides that the officials of  the  Authority  will  deliver  the  consignment  to  the consignee  after collecting demurrage and obtaining a  valid receipt  from  him.  The demurrage has to be  calculated  in accordance  with  the policy framed by the IAAI.   The  free days  for  which no demurrage shall be charged  has  already been explained.  The time to calculate demurrage  commences, according  to  paragraph 2 of the policy, from the  date  of landing  after  excluding  free days.   When  Public  Notice requires  the  IAAI and CWC not to charge any rent  for  the period detention certificate is issued then by operation  of law the expres- 471 sion ’within the time allowed’ in the policy has to be  read along  with the detention certificate issued by the  Customs Department.   The High Court appears to be right  in  taking the view that if various clauses in the Public Notice issued by  the  Customs Department are followed by  the  IAAI  then there  appears no rationale for the view that  sub-paragraph (vii)  is not binding on them as they have framed their  own rate  schedule.   Any  other construction  would  result  in rendering  sub-paragraph (vii) as meaningless.  The  learned counsel  for the appellants submitted that it acted  on  the certificate  and that is why it granted waiver of 80%.   But that   is  not  what  sub-paragraph  (vii)   requires.    It specifically  provides  for charging no  demurrage  for  the period  mentioned in the detention certificate.   Therefore, the  IAAI or CWC should not have levied any charge  for  the period  mentioned in the detention certificate.  In fact  in clauses  (b) and (c) of the Policy 80% waiver is allowed  on account of court cases where court has passed  unconditional order  in  favour  of the  consignee.   The  Policy  further provides  that,all the waiver in terms of powers  (a)  above shall  be  subject to condition  that  respective  authority certifying  detention  has not levied any  fine  penalty  or issued  any warning to the consignee on this import’.  On  a reasonable  construction  of  the  Policy,  therefore,there, would have been no difficulty in accepting the claim of  the respondents,  for waiver of 80% during the entire period  of detention.   An importer may be entitled to waiver  in  more than  one  clause.  In a case where appeal  is  allowed,  in entire and no penalty or fine is imposed the consignee might be  entitled  to  waiver both under. clauses  (a)  and  (g), therefore, the demurrage may not be chargeable more than 80%

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in such cases for the entire period of detention., 20.  The issue, however, is not whether 80% for’ the  entire period of detention should have been waived but whether  any demurrage  could have been charged for the period  detention certificate  was  issued  by  the  Assistant  Collector   of Customs.   If  the  appellants’  claim  that  IAAI  being  a statutory body it was entitled to frame its regulations  and rate  schedule  is  accepted then  it  results  in  conflict between  sub-paragraph (vii) of Public Notice and  paragraph (3)  of  the  Policy framed by the  IAAI.   The  legislative intention  in  enacting  Act  being  to  check  and  control economic  offences such as smuggling, illegal  import  etc., the  provisions have to be construed to advance the  purpose sought  to be achieved without sacrificing  the  consignee’s interest.   The  provisions in  the  International  Airports Authority  Act  and the Policy framed thereunder  cannot  be construed so as to be self defeating. But that would be  the result  if the construction suggested by the  appellants  is accepted.  The adjudicatory process is time consuming.  From Assistant Collector of Customs to the Tribunal itself it may take  sufficiently long time.  By the time the consignee  is able to extract himself from the cobweb of various stages he may find himself landed in the soup of demurrage.  If he  is to  pay the charges which in many’ cases due to  passage  of time  may  be many times more than the value of  goods,  the entire exercise may be waste.  It would be anomalous that  a person who ultimately succeeds in vindicating his claim that the  goods  arc properly valued or that the  import  was  in accordance  with law is faced with demurrage of goods  which may  be not only more than the value of goods but the  value plus duty and penalty even.  For instance in Appeal 472 No.798 of 1992 the total value of the goods was  Rs.17,846/- Ahereas  the demurrage after allowing rebate as provided  in the  Rate Schedule of the IAAI comes to  Rs.1,115,936/-.  If this amount is not paid the only remedy of the IAAI would be to  dispose  of the imported goods and the  total  value  it might   be   able  to  realise  could  be   somewhere   near Rs.17,000/-.  Therefore,  except  for  the  satisfaction  of auctioning the goods the IAAI in some cases may not be  able to  compensate itself fully.  And yet the  consignee  stands deprived  of his goods.  The construction as has  been  sug- gested  by  the appellants would, therefore,  be  unjust  to small importers, and as observed self-defeating for the IAAI or  CWC.  To remedy from such hardship  sub-paragraph  (vii) was  enacted  by way of Public Notice.   It  recognises  the legal  consequences  which must follow the  adjudication  by directing  that  no  demurrage should be  charged  for  that period as in law the decision by the Tribunal dates back  to the date of detention.  And by fiction of law it  is assumed that  the Customs Department clears the goods as  it  should have done when the goods had landed.  Even otherwise if  the policy  decision  of capacity pay is read  along  with  rate prescribed  then levy of demurrage may defeat the very  pur- pose and objective of the policy.  Payment of three times or four times of demurrage of value of goods because the  goods were  detained at the instance of Customs  Authorities  does not  accord with the policy decision.  It is not  in  common interest.  One of the settled principles of construction  is to read a provision in such manner that it may not be  self- defeating.  The levy of demurrage at the prescribed rate  by ignoring the Public Notice issued by the Customs  Department in 1986 is apt to lead to such disastrous consequences. 21.  But before parting it is necessary to observe that from

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1976  to 1993 the entire Scenario of cargo traffic from  air has gone tremendous change.  The busy traffic, the spate  of smuggling, manoeuvring of importing goods by camouflaging to avoid  payment  of  duty  have  multiplied  putting  immense pressure  on  the IAAI and the Customs Department.   At  the same  time  the  honest and bona fide  consignee  should  be protected for sake of credibility.  The  Customs  Department on its part may consider the feasibility of framing a policy by  dividing  the imported goods  in  different  categories. Where the import is not prohibited or it is against  licence or  permit  and the only dispute is about valuation  or  the tariff  item 1 under which it falls it may be  released.  on furnishing  of  bank  guarantee or  security  sufficient  to secure  the  interest of Department subject to  final  deci- sion.  This determination should be done at the airport.  It would obviate the necessity of storing goods, save the  IAAI or CWC from unnecessary botheration, protect the Department, and serve the importer better.  Till then the Public  Notice issued  by Customs Department appears to be reasonable,  and practicable solution to the Problem.  The IAAI or CWC may be well advised to change its regulations and fall in line with the policy decision and refrain from charging any  demurrage for the period Customs Department issues a certificate under subparagraph  (vii)  of the Public Notice.  It  would  avoid litigation,  harassment  and would be, conducive  to  public interest. 22.  In the result, all the appeals fail and are dismissed. BHARUCHA, J.: C.A.Nos. 798/92 & 3971/92 473 23 These are appeals by special leave against the  judgments and  orders of a Division Bench of the High Court  of  Delhi allowing the writ petitions filed by: the first  respondents in   each   appeal   and  directing   the   appellant,   the International Airport Authority of India (the Authority), to realise the goods imported by the’ first respondents without charging  any  demurrage thereon for the periods  for  which detention  certificates had been issued by the Collector  of Customs 24.The first respondents had imported goods by air and filed bills  of  entry with the Customs authorities at  the  Delhi Airport,  which  is  the property  of  the  Authority.   The Customs  authorities detained the goods.   Ultimately,  they were released and the Collector of Customs issued  detention certificates  for the periods of the detentions.  The  first respondents thereupon applied to the Authority for waiver of demurrage  charges for the periods covered by the  detention certificates.   The first respondents calculated  demurrage, granting  for these, periods waiver on a graded scale.   The first respondents preferred writ petitions before the  Delhi High Court, impleading the Union of India and the Authority, challenging the requirement to pay demurrage for the periods for’ which the detention certificates had been issued.   The High Court took note of the decision of an earlier  Division Bench  in the case of MI s. Trishullmpex v. Union  of  India (1991(2) Delhi Lawyer 1 = 43Delhi Law Times 538).  The, High Court  took  the  view  that since  the  Authority  was  the custodian   on  behalf  of  the  Customs  authorities,   the Authority was not entitled to recover any amount on  account of  demurrage  charges for the periods for  which  detention certificates had been issued. 25.  The judgments and orders under appeal, are contrary  to the judgment of: the Delhi, High :Court in the case of  M/s. Trishul Impex (ibid) as also the decisions of this Court  in the  cases  of  Trustees  of the Port  of  ’Madras  v.  M/s.

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Aminchand  Pyarelal  & Ors., (1976) :1 S.C.R. 721  Board  of Trustee  of  the Port of Bombay v.  Indian  Goody  Supplying Co.,,  (1977)  3  S.C.R. 343, and Board of Trustees  of  the Port of Bombay v. Jai Hind Oil Mills Company & Ors.,  (1987) 1 S.C.R. 932. 26.In  the  case  of Trishul Impex (ibid)  a  writ  petition filled  by  an importer had been  allowed and the  Union  of India  and the Container Corporation of India were  directed to  issue a detention certificate from the date on  which  a bill  of entry was filed until the date of actual  clearance and  to  release  the  imported  goods  without  payment  of demurrage  charges.   The Corporation, the  5th  respondent, filed  and  application -before the High Court  in  which  a declaration was sought that the liability for the  demurrage charges  would  have  to  be home  by  the  importer.   ’The Division Bench that’ heard the application came to the  con- clusion that the Corporation was the Custodian of the  goods under  Section  45(2) of the Customs Act.   As  a  detention certificate had, been issued by the Customs authorities, the Corporation  was bound to release the goods to the  importer and  it was the Customs authorities who were responsible  to the Corporation for the demurrage charges.  The  Corporation was,  therefore,  directed to release the goods to  the  im- porter  upon  payment  by the  Customs  authorities  of  the demurrage  charges for the period covered by  the  detention certificate. 27.In  the  case of M/s.  Trishul Impex, therefore,  it  was held that the authority in 474 whose  premises the goods were held pending their  clearance by the Customs authorities was entitled to recover demurrage charges  for  the period that they were so held,  but  that, since  such  detention  had been at the  insistence  of  the Customs  authorities  and  such  insistence  had  been   ac- knowledged  to be wrongful, it was the  Customs  authorities who should pay the demurrage charges for that period to  the authority  holding  the  goods and  upon  such  payment  the authority  should  release the goods to the  importer.   The writ  petitions  filed by the first respondents  before  the Delhi  High  Court  impleaded the Union  of  India  and  the Authority.  The High Court did not direct the Union of India to  pay to the Authority demurrage charges for  the  periods covered  by the detention certificates, as had been done  in the  case of M/s. Trishul Impex, but directed the  Authority to release the goods without payment of demurrage charges. 28.  In Trustees of the port of Madras V.    M/S.  Aminchand payarelal   &  Ors.,  (1976)  1  S.C.R.  721,  a   detention certificate  was issued by the Customs  authorities  stating that  the  detention of imported goods for the  period  24th April,  1963, to 21st August, 1964, was due to no  fault  or negligence  on  the part of the importer.  Acting  upon  the detention  certificate, the appellants the Trustees  of  the port of Madras (the Board), waived demurrage for the  period covered  thereby  and  charged  Rs.  1963/  instead  of  Rs. 3,20,951/-,  by  way of demurrage.  The  importer  paid  Rs. 1963/-  and cleared the goods.  In January, 1965, the  Board wrote to the Customs authorities stating that the% detention certificate  had been erroneously issued.  The  Customs  au- thorities  owned  the  mistake.  The  Board  then  sued  the importer  the Union of India and the Customs authorities  to recover the balance of the demurrage charges.  The  importer disputed  its liability to pay on the ground that  it  could not be penalised either for the delay caused by the  Customs authorities  in clearing the goods or by reason of  a  wrong detention  certificate.  The High Court dismissed the  suit.

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It  held,  inter  alia, that, the  Board  could  not  charge demurrage  for  the period during which the goods  had  been detained  for no fault or negligence of the importer or  his agent,  demurrage  being, in its view, a charge  for  wilful failure to remove goods.  The Board approached this Court in appeal.  This Court noted the provisions of the Madras  Port Trust Act and, particularly, the provisions of sections  42, 43 and 43A thereof Section 42 empowered the Board to frame a scale  of rates at which and a statement of  the  conditions under   which  the  services  specified  therein  would   be performed by the Board.  One of the clauses thereof referred to building in the possession or occupation of the Board  or at  any  place  within the limits  of  the  Board.   Another referred  to wharfage, storage or demurrage of goods at  any such place.  By reason of section 44, every scale and  every statement  of conditions framed by the Board under  sections 42,  43  and  43-A  had  to  be  submitted  to  the  Central Government   for  sanction  and,  when  so  sanctioned   and published  in  the Official Gazette, had the force  of  law. Section  44 (1a) empowered the Central Government to  cancel any of the scales  framed by the Board and to the call  upon the  Board  to modify and portion thereof.   The  Board  was bound  to  comply  with  such  directions.   Section   44(2) conferred power upon the Board in special cases, for reasons to be recorded in writing, to remit the whole or any portion of  the  rates or of any charge leviable  according  to  any scale. 475 Acting in pursuance of the powers conferred by sections  42, 43 and 43A, the Board had framed a scale of rates payable at the  Port  of Madras which had been duly sanctioned  by  the Central Government.  Chapter IV in Book 1 thereof dealt with demurrage.   Demurrage  was defined as " chargeable  on  all goods left in the Board’s transit sheds or yards beyond  the expiry  of the free days.  After demurrage begins to  accrue no  allowance is made for Sundays or Board’s holidays.   The free  days  are  fixed  by the Board  from  time  to  time". Scale’A’ of ChapterIV prescribed conditions governing  ’free days’, the normal rule being that three working days in  the case  of  foreign cargo, excluding Sundays and  the  Board’s holidays, were treated as free after complete discharge of a vesseGl’s  cargo or the date when the last package  was  put overside.   Free periods also included periods during  which goods  were  detained  by  the  Customs  authorities  for  a chemical test, which period was certified by them to be  not attributable  to  any  fault or negligence on  the  part  of importers.  Rule 13 (b) read thus:               "(b) where goods are detained by the Collector               of Customs, on account of Import Trade Control               formalities  or for compliance of  formalities               prescribed under the Drug’s Act and  certified               by   the  Collector  of  Customs  to  be   not               attributable to any fault or negligence on the               part   of   Importers,  demurrage   shall   be               recovered  for this period at the rate  of  30               per cent of the normal rate, i.e. the rate  at                             which the goods would incur demurrage had ther e               been  no  detention  by  the  Customs.    This               concession in demurrage shall be limited to  a               period  of  30 days plus one working  day  and               demurrage shall be recovered at the full  rate               (i.e.  third  slab) for detention  beyond  the               above said period." This  Court  held that Port Trusts were bodies of  a  public

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representatives  character  which  were  entrusted  by   the legislature  with  authority to frame a scale of  rates  and statement of conditions subject to which they would  perform certain services.  Every scale and every statement of condi- tions  had  to  be submitted by the  Board  to  the  Central Government  for  sanction  and it was only when  it  was  so sanctioned that it had the force of law.  The requirement of such  sanction  was  a restraint  on  unwise,  excessive  or arbitrary fixation of rates.  Section 44(2) conferred on the Board  the  power, in special cases and for  reasons  to  be recorded  in writing, to remit the whole or any  portion  of rates  or charges leviable according to any scale in  force. Port Trusts did not do the business of warehousing goods and the rates which the Boards charged for storage of goods were not levied as a means of collecting revenue.  The Board  was under  a statutory obligation to render services of  various kinds  and  those services had to be rendered  not  for  the personal benefit of this or that importer but in the  larger national  interest.  Congestion in the ports  affected  free movement  of  ships and of essential goods.   The  scale  of rates had therefore to be framed in a manner which would act both as an incentive and as a compulsion for the expeditious removal of goods from the transit area.  Ships, like wagons, had  to be kept moving and that could happen only  if  there was  pressure on importer to remove goods from  the  Board’s premises  with  the utmost expedition.  Section 42  had  not authorised  the  Board to fix rates of  "demurrage"  but  to frame  scales of rates and a statement of  conditions  under which  the  services specified therein would  be  performed. The  ordinary  meaning of "demurrage"  did  not,  therefore, fetter the 476 Board’s  powers  under  section 42.   The  High  Court  was, therefore,  found  to  be in error when  it  held  that  the Board’s power to charge demurrage was limited to cases where goods  were not removed from its premises due to some  fault or negligence on the part of the importer. 29.  In Board of Trustees of the Port of Bombay   v.Indian Goods Supplying Co., (1977)   3  S.C.R. 343,  the  appellant Board had framed scales of rates of demurrage of goods under its  statute, which was similar in its terms to the  statute that  covered  the  Port  of  Madras.   The  Board   claimed demurrage  and, as the amount there was not paid, the  goods in  respect of which the claim was made were sold by  public auction.  The importer filed a suit for the recovery of  the value  of  the  goods; the Board denied  the  liability  and pleaded that it was entitled to collect demurrage and, since the  importer  had  failed  to pay  the  demurrage,  it  was entitled  to  sell the; goods by auction.   The  City  Civil Court  at  Bombay  decreed the suit and the  High  Court  in appeal  affirmed  the decree.  The Board  appealed  to  this Court.   This Court said that under its statute it  was  the duty  of the Board to recover rates.  It had a lien  on  the goods  and  the right to seize and detail them  until  rates were fully paid; also, to sell the goods to enable recovery. The contention on behalf of the importer was that it was  in no  way responsible for the delay in clearing the  goods  as the  goods had been detained under the Import Trade  Control Regulations.  This Court said:               "It is no doubt true that before clearance  is               given by the Import Trade Control  authorities               and the Customs Department the goods cannot be               cleared  by the respondents.  Neither can  the               Port  Trust  deliver  the  goods  without  the               consent of the

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             Import Trade Control authorities.  Taking into               account  the hardship caused to  the  importer               because  of the delay certain  concessions  in               demurrage rates are permitted.  The Port Trust               has  prescribed  the  reduced  demurrage  levy               which  is 1/ 6th of the normal rate  from  the               date  of  expiry of free days upto  the  60the               day,  1/  3rd  of the normal  rate  after  the               expiry  of  the 60th day, upto the  90th  day,               half the normal rate after the expiry of  90th               day  upto the 120th day, 2/3rd of  the  normal               rate  after the expiry of the 120th day,  rate               after the expiry of the 120 day, 2/3rd of  the               normal rate after the expiry of the 120the day               upto the 150th day and at the full rate  after               the expiry of the 150th day.  As the scale  of               rates  are framed by virtue of  the  statutory               powers conferred on the Board under section 43               and  as  the rates have been approved  by  the               Central Government under section 43B the rates               have   the   force  of  law  and   cannot   be               questioned.  Taking into account the  hardship               to  the importers certain concession has  been               given but the legality of the rates which  are               being  levied  according  to  law  cannot   be               questioned." This  court then referred to the aforementioned judgment  in the case of M/s. Aminchand Pyarelal and said that it was  on all fours with the facts of the case before it and concluded the question.  It was held that the High Court was in  error in holding that the importer of the goods could not be  held responsible  for  any  delay not  attributable  to  his  own default and that demurrage under the statute could never  be imposed  as long as the goods were detained for the  purpose of the operation of the Import Trade Control Regulations. 30.  In Board of Trustees of the Port of Bombay v. Jai  Hind Oil  Mills C. & Ors., (1987)1 S.C.R. 932, the provisions  of the Major Port Trusts Act, 1963, were, involved 477 and  it  was found that they were in para materia  with  the provisions of the individual Port Trusts Acts that proceeded it.   Reliance was place upon the judgments in the  case  of M/s.   Aminchand Pyarelal and Indian Goods  Supplying  Co.., and it was held:               "The power of a Port of Trust to fix rates  of               demurrage  and  to recover the  same  from  an               importer or exporter (although the question of               an  exporter paying demurrage  arises  rarely)               under  law and to show concession  as  regards               demurrage  charges in certain specified  cases               is recognised by the Court in the Trustees  of               the Port of Madras v. M/S. Aminchand  Pyarelal               & Others, (1976) 1 S.C.R. 721 and in the Board               of  Trustees of the Port of Bombay  v.  Indian               Goods  Supplying  Co., (1977)  3  S.C.R.  343.               ’Mew  decisions  arc  no doubt  based  on  the               relevant  laws  which  were in  force  at  the               material  time.  But the decisions  are  still               relevant  insofar as cases arising  under  the               Act  because the Act also contains  provisions               more   or  less  similar  to   the   statutory               provisions  considered in the said  decisions.               Demurrage  charges  are  levied  in  order  to               ensure  quick clearance of the cargo from  the               harbour.  They are always fixed in such a  way

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             that  they  would  make  it  unprofitable  for               importers  to  use  the  port  premises  as  a               warehouse.   It is necessary to do so  because               congestion  in  the  ports  affects  the  free               movement   of  ships  and  the   loading   and               unloading operations.  As stated earlier,  the               Port  Trust  shows  concession  to  the  party               concerned in certain types of cases.               xxx                xxx               xxx               It  is,  however, to be observed  that  before               compelling the Customs authorities to issue  a               Detention  Certificate, the High Court  should               have issued notice to the Port Trust which was               vitally   interested  in  securing   its   own               interests  as  regards the  demurrage  charges               recoverable  by  it  under  law.   This  %%,as               necessary  because  on the production  of  the               Detention  Certificate issued by  the  Customs               authorities  the  Port  Trust  was  under   an               obligation  to  permit the  clearance  of  the               goods   without  payment  of  full   demurrage               charges.  If ultimately the party concerned-is               found to be at fault and becomes liable to pay               the full demurrage charges the Port Trust  may               not  be  in a position to  recover  such  full               demurrage  charges from the  party  concerned,               since  it  would have no longer  any  lien  as               provided  by  section 59 of the  Act.  on  the               goods  which  are already cleared.   The  Port               Trust being a body corporate constituted under               the Act is entitled to be  heard by the  Court               before  any order which affects its  interests               prejudically  is passed.  This case serves  as               an illustration to what is stated above.   The               Port  Trust  has  been  asked  to  permit  the               clearance  of  goods  in   respect  of   which               demurrage charges of Rs.3,53,514.75 paise  are               payable  in  the event of the  1st  Respondent               being  held  liable  in law to  pay  the  full               demurrage  charges.  The orders passed by  the               High  Court  in the proceedings to  which  the               Port  Trust was not a party which had the  ef-               fect or prejudicially affecting the  interests                             of  the Port Trust would not be binding on  it               in view of the violation of the principles  of               natural justice." 31.this  Court in the cases aforementioned, therefore,  held that the Board of Trustees of a Port was, under the  statute that  created  it,  entitled to  charge  demurrage  even  in respect  of periods during which the importer was unable  to clear goods from its premises for no fault or negligence  on his  part.   It was held that the Boards  were  entitled  to charge demurrage even in respect of periods during which the importer was unable to clear  goods because of the detention thereof by 478 the Customs authorities or the authorities under the  Import Trade Control Regulations, which detentions were  thereafter found  to be unjustified.  This Court also  recognised  that the  Boards  were entities in their own right  so  that  the Courts  could not direct the Customs authorities to issue  a detention  certificate without hearing the Board  concerned. This was because the issuance of a detention certificate had the  effect  of reducing the amount of  demurrage  that  the Board would otherwise have charged.

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32.The   International   Airports   Authority   Act,   1971, constitutes,under   the  provisions  of   Section   3(1),the International  Airports Authority of India (the  Authority). By reason of section 3(2) the Authority is a body  corporate having perpetual succession and a common seal, with power to acquire,  hold  and dispose of property,  both  movable  and immovable,  and  to contract and to sue and be sued  by  the aforesaid  name.   It  is, by reason  of  section  3(3),  to consist  of  a  Chairman,  the  Director  General  of  Civil Aviation  and not less than six and not more  then  thirteen members  to  be appointed by the Central  Government,  whose names  are required to be notified in the Official  Gazette. By reason of section 12 the Central Government is  empowered to-vest  in the Authority, by notification in  the  Official Gazette,  all properties and other assets vested in  it  for the purposes of airports.  Section 14 empowers the Authority to  enter  into and perform any contract necessary  for  the discharge  of its functions.  Section 16(1) states  that  it shall  be the function of the Authority to  manage  airports efficiently.   Section  16(2)  makes  it  the  duty  of  the Authority  to provide at the airports such services and  fa- cilities as are necessary or desirable for the  efficient operation of air transport services  thereat. Specifically, the Authority is empowered by section 16(3)(d) to  establish warehouses at the airports for the storage  or processing  of  goods.   Section  17  gives  power  to   the Authority  to  charge,  with the previous  approval  of  the Central  Government, fees or rent, inter alia, for  the  use and  enjoyment  by  persons  of  its  facilities  and  other services  at  any  airport.  Section  35  directs  that  the Authority  shall, in the discharge of its functions and  du- ties, be found by such directions on questions of policy  as the  Central Government may give it in writing from time  to time.   Section  37 gives the Authority the  power  to  make regulations  to provide for all matters for which  provision is necessary for the purpose of giving effect to the  provi- sions  of the Act.  The Authority is specifically  empowered by  section  37(2)d to make regulations for the  storage  or processing of goods in any warehouse established by it under section  16(3)(d) and the charging of fees for such  storage or processing. 33.By  virtue  of the power vested in  the  Authority  under section 37, the Authority has framed regulations called  the IAA  (Storage  and Processing of Goods)  Regulations,  1980. Under  Regulation  4  the Authority  is  empowered  to  levy charges,   including   storage   charges   and    demurrage. Regulation  5 empowers the Authority to fix and revise  from time to time the scales of charges.  By reason of Regulation 6  the  Chairman may in his discretion, for  reasons  to  be recorded, waive charges in de serving cases.  The  Authority has  framed  a policy in regard to the waiver  of  demurrage charges.   It provides, in the case of imports, for  a  free period  of seven calendar days from the date of  landing  of com- 479 mercial  cargo.   In regard to  detention  certificates  the policy provides for waiver of demurrage on a ’graded  basis. The  waiver  is of 80% for the first 90 days,  50%  for  the period beyond 90 days and upto 6 months, and full  demurrage is  required  to be paid thereafter if the detention  is  in connection  with Import Trade Control formalities.   If  the detention  is  by  the Customs  authorities  for  analytical purposes,  a waiver of 80% is available for the full  period of the detention. 34.The  provisions of the International  Airports  Authority

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Act,  1971 are, therefore, similar to the provisions of  the Major  Port Trusts Act, 1963, and the Port Trusts Acts  that preceded  it.   The regulations framed by the  Authority  in regard  to the storage or processing of imported  goods  and the  policy  in regard to the waiver of demurrage  are  also similar  to  those of the Boards of Trustees of  the  ports. The ratio of the judgments of this Court in the cases of  MI s.  Aminchand Pyarelal, Indian Goods Supplying Co.  and  Jai Hind  Oil Mills Co. applies as much to the Authority  as  it does to the Boards of Trustees of the ports. 35.It  was  submitted  by  learned  counsel  for  the  first respondents  that  the  judgments  in  the  cases  of   M/s. Aminchand Pyarelal, Indian Goods Supplying Co. and Jai  Hind Oil Mills Company. decided only that an importer had to  pay demurrage though the delay in clearing his goods was not due to  his  default or negligence.  It was submitted  that  the contention in these appeals was different, namely, that  the Authority  was the custodian of the Customs authorities  and was obliged, by reason of the detention certificates  issued by the Customs authorities, not to charge demurrage ’for the periods covered by the detention certificates.  The judgments aforementioned do not only hold that an importer is liable to pay demurrage though he is not responsible  for  the  delay in  clearing  his  goods.   The judgments  deal ’With detention certificates issued  by  the Customs authorities and hold that the importer is liable. to pay  demurrage at the reduced rate prescribed by the  policy framed in that behalf by the Boards even for the period  for which   a  detention  certificate  has  been  issued.    The judgments  recognise that the Boards are entities  in  their own right and that even the courts cannot compel the Customs authorities  to issue detention certificates  without  first hearing the Board concerned, because detention  certificates have the effect of reducing the revenues of the Boards.  The Boards  and  the  Authority  being  similarly  placed,   the judgments determine the questions raised in these appeals. 36.During the course of the hearing reliance was placed upon a  Customs Public Notice dated 30th April 1986 and  numbered 30/86.  It is issued on the subject of "Unloading/loading  - custody   of   Import/  export  cargo   at   Indira   Gandhi International  Airport,  New Delhi." It  notifies,  for  the information  of airlines, importers, exporters and  clearing agents,  that  the  Collector  of  Customs,  New  Delhi,  in exercise of powers vested in him under sections 8, 33,34 and 45  of  the  Customs Act, 1962,  has  specified  "limits  of Customs  Area  as whole of existing  area  constituting  the Indira  Gandhi  International Airport, New  Delhi  including domestic  arrival  and departure area,  Cargo  Terminal  New International  Terminal Complex (CTNTTC for short)  and  the entire premises of Central Warehousing Corporation Ltd. (CWC for  short), located at Gurgaon Road, New  Delhi,  excluding M/s.  IAA’s Import Cargo 480 Warehouse  (monkey farm).  " The said Customs public  notice approves  the Authority as custodian of cargo under  section 45  of the Customs Act.  The cargo, it is stated,  would  be stored in the Authority’s C.T.N.I.T.C. on the condition that it   would  be  subject  to  the  control  of  the   Customs authorities.   Clause  (vii), which  is  another  condition, reads thus:               "In  case  of goods  detained/seized  etc.  by               customs, the warehousing/storage charges shall               be calculated by M/s.  IAAI for the period due               minus  the charge for the period of  detention               at the instance of Customs as certified by the

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             Assistant Collector of Customs." The  said Customs public notice states that  public  notices and instructions issued earlier would be deemed to have been modified to the extent mentioned in it. 37.  The said Customs public notice has not been referred to in  the pleadings before the High Court or this  Court.   It was not brought to the notice of the High Court. 38.  As  would appear from what has been stated  above,  the Authority’s policy for the waiver of demurrage still  covers Customs detention certificates and the Authority has  levied demurrage   for   periods  covered  by   Customs   detention certificates  even after the issuance of the  said  Custom’s public notice.  In the case of M/s.  Trishul Impex  referred to  above  the issue was whether demurrage charges  for  the period covered by a detention certificate should be borne by the  importer or by the Customs authorities and the  Customs authorities  did  not  rely upon the  said  Custom’s  public notice  to  contend  that the  Authority  could  not  charge demurrage for the period covered by a detention  certificate and were ordered  to make the payment.  It appears,  therefore,  that the  said Customs public notice has not been acted  upon  by the Authority and by the Customs authorities. 39.    In any event, the provisions of the Customs Act under which  the said Customs public notice was issued may be  ex- amined.   Section  8 empowers the Collector  of  Customs  to approve proper places in any Customs port of Customs airport for  the unloading and loading of goods and to  specify  the limits of any Customs area.  Section 33 debars the unloading of  imported goods at any place other than a place  approved under section 8. Section 34 states that imported goods shall not  be  unloaded  from  any  conveyance  except  under  the supervision of a proper officer.  Section 45 reads thus:               "Restrictions   on  custody  and  removal   of               imported goods -               (1)   Save  as otherwise provided in  any  law               for the time being in force, all imported   goods               unloaded  in a customs area shall  remain   in               the custody of such person as may be  approved               by  the  Collector of Customs until  they  are               cleared for home consumption or are warehoused               or  are  transhipped in  accordance  with  the               provisions of Chapter VIII.               (2)   The   person  having  custody   of   any               imported goods in a customs area whether under               the  provisions of sub-section (1)   or  under               any law for the tam being in force-               (a)   shall keeps a records of such goods  and               send a copy thereof to the proper  officer.               (b)   shall  not permit such goods to  be  re-               moved form the customs area or otherwise dealt               with  except under and in accordance with  the               permission in writing               481               of the proper officer. 40.  None of these provisions entitles the   Collector    of Customs  to  debar  the collections  of  demurrage  for  the storage  of  imported  goods.  They do not  entitle  him  to impose  conditions upon the properties of ports or  airports before they can be approved as Customs ports or Customs air- ports.  Section 45 provides that all imported goods imported in  a Customs area must remain in the custody of the  person who has been approved by the Collector of Customs until they are cleared and such person is obliged not to permit them to be  removed  from the Customs area or otherwise  dealt  with

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except  under and in accordance with the permission  of  the Customs Officer.  Section 45 does not state that such person not  be  entitled to recover charges from the  importer  for such period as the Customs authorities direct. 41.  The purpose of the Customs Act on the one hand and  the Major Port Trusts Act and the International Airports Author- ity  Act on the other hand are different.  The former  deals with  the  collection of Customs duties on  imported  goods. The  latter  deals  with the  maintenance  of  seaports  and airports,  the  facilities to be Provided  thereat  and  the charges to be recovered therefor.  An importer must land the imported goods at a sea-port or airport.  He can clear  them only  after  completion of Customs  formalities.   For  this purpose, the sea-ports and airports are approved and provide storage  facilities  and Customs officers  are  accommodated therein to facilitate clearance.  For the occupation by  the goods of space in the sea-port or airport, the Board or  the Authority which is its proprietor is entitled to charge  the importer.  That until Customs clearance the  Board or the Authority may not permit the  importer  to remove  his goods from its premises does not imply  that  it may  not  charge the importer for the space his  goods  have occupied until their clearance. 42.  What is stated in the quoted clause of the said customs public notice would be effective against the Authority  only if  it  were  shown that the  Authority  had,  expressly  or impliedly,  consented to such arrangement; that is not  even pleaded. 43.  It can not be gain said that, by reason of  unjustified detention of his goods by the Customs    authorities,    the importer  is put to loss by having to pay demurrage  charges for  the periods of such detention.  The Central  Government is empowered by section 35 of the International Airports Au- thority Act, 1971, and section III of the Major Port  Trusts Act,  1963,  to  issue to the Authority and  the  Boards  of Trustees,  respectively, directions on questions  of  policy after giving them an opportunity, as far as practicable,  of expressing  their views. -Me Central Government can,  if  so advised,  after  giving to the Authority and the  Boards  of Trustees  the opportunity of expressing their views,  direct them,  under  the  aforementioned provisions,  not  to  levy demurrage   charges   for  periods  covered   by   detention certificates. C.A. No 4227/92 44.  The  goods of the first respondent in this appeal  were stored, pending their clearance by the Customs  authorities, at  the  Container  Freight Station of  the  appellant,  the Central  Warehousing Corporation at Patparganj, Delhi.   The Central  Warehousing  Corporation is established  under  the provisions  of the Warehousing Corporations Act, 1962.   The provisions of the 482 Warehousing  Corporations Act are substantially  similar  to those of the International Airports Authority Act, 1971, and the  Major Port Trusts Act, 1963.  What has been said  above in regard to the International Airports Authority applies as well to the Central Warehousing Corporation. 45.  In  the result, the appeals (C.A. Nos. 798/92,  3971/92 and  4227/92) are allowed.  The judgments and  orders  under appeal  are  set aside.  The writ petitions  filed.  by  the first respondents in each of the appeals are dismissed. 46.  There shall be no order as to costs. ORDER 47.  For reasons given by us in our separate judgments (R.M. Sahai, J. for dismissal of the appeals whereas S.P. Bharucha

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and  N.  Venkatachala,  JJ. for allowing  the  appeals)  the appeals  succeed and are allowed.  The orders passed by  the High Court are set aside.  And the Writ Petition shall stand dismissed.   But  in the circumstances of  the  case,  there shall be no order as to costs. VENKATACHALA, J.: 48.  The   important  question  which  is  required  to   be considered and answered in deciding the above civil  appeals is,  whether the Collector of Customs empowered  under  sub- section  (1) of section 45 of the Customs Act, 1962  -  "the Act"  to approve persons to be custodians of imported  goods in  customs  areas until they are cleared  as  provided  for therein, while approving the International Airports  Author- ity of India - "the MM" to be the custodian of such imported goods  in  the customs area of Indira  Gandhi  International Airport,  New  Delhi and Central Warehousing  Corporation  - "the  CWC"  to  be the custodians  of  such  imported  goods received  at  the  customs  area  -  the  Container  Freight Station, CWC Complex, Pragati Maidan, New Delhi, by issue of public notice or otherwise in that regard, if by such notice or otherwise directs such custodians not to collect  custody charges from the consignees of such goods - "the Cargo", be- cause  of  detention  certificates  issued  by  him  or  his delegates,  will  he be acting within the  powers  conferred upon  him under the Act, its Rules or its Regulations,  and, if   not,  can  such  direction  be  enforced  against   the custodians ? 49.  Divergent  views are expressed on the said question  by my  revered  brethren R.M. Sahai and  S.P.Bharucha,  JJ.  in their  separate  judgments, the drafts of which  I  had  the advantage  of  going through.  The said  question  being  of considerable  importance I propose to consider  it  indepen- dently,  express  my  view thereon and  decide  the  present appeals accordingly. 50.  Civil Appeal No. 798 of 1992 arises out of the Judgment dated 24.9.1991 of the High Court of Delhi in Civil Writ No. 554  of  1991, by which the MM was directed to  release  the goods to respondent  here (petitioner in the Writ  Petition) with out collecting any demurrage charges for the period for which  the  detention  certificate had been  issued  by  the Assistant  Collector of Customs.  Such direction was  issued by  the High Court because of its view that the MM when  was the custodian of the goods at the instance of the  Collector of  Customs, the IAAI was not entitled to recover  demurrage charges   from   the  petitioner  in   the   Writ   Petition (respondent-1 in the appeal) the consignee, for the 483 period  covered by the detention certificate issued  by  the Collector of Customs or his delegates.  Such view was  taken by  the  High Court, following its  earlier  Division  Bench judgment in M/s.  Trishul Impex v. Union of India [1991  (2) Delhi Lawyer 1]. 51.  Civil Appeal No. 3971 of 1992 arises    out   of    the Judgment dated 3.2.1992 of the     High  Court of  Delhi  in Civil Writ Petition No. 3235 of 1989, whereby the IAAI - the appellant  herein, was directed to refund demurrage  charges which  it  had  collected in respect of  the  goods  of  the petitioner   therein  -  respondents  herein,  despite   the detention certificate issued in respect of such goods by the Asstt.  Collector of Customs.  Such direction, according  to the  High Court, was issued following its  earlier  Division Bench  judgments  in M/s.  Trishul Impex (supra)  and  Grand Slam  International  v.  Union of India  C.W.  554  of  1991 decided on 21st September, 1991. 52.  Civil  Appeal No. 4227 of 1992 arises out  of  Judgment

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dated 22.1.1992 again of the High Court of Delhi in C.W. No. 1751  of 1991, by which it directed the CWC to  release  the goods  of  the  petitioner therein  without  collecting  the demurrage charges from the petitioner therein in respect  of the  period covered by the detention certificate  issued  by the  Asstt.   Collector of Customs.  Such direction,  it  is said  in  the judgment, was issued  following  its  Division Bench  judgment in M/s.  Trishul Impex (supra),  wherein  it was held that the custodian of the goods under section 45 of the Customs Act being the custodian on behalf of the Customs authorities, it was bound to release the goods in favour  of the consignee when once a detention certificate had been issued by the Customs authorities. 53.  It  would  be  convenient to consider  and  answer  the aforesaid question with reference to Civil Appeal No. 798 of 1992  and  Civil  Appeal  No.3971  of  1992  in  which   the appellant,  "the IAAI" is common and dispose of the  appeals accordingly,  in  that, the answer to be given to  the  said question,,  would be sufficient to dispose of  Civil  Appeal No. 4227 of 1992 as well. 54.  M/S.  Trishul Impex case (supra), has been relied  upon by  the High Court in giving the directions to the IAAI,  in its  judgments  under  appeals,  not  to  collect  demurrage charges  in respect of the periods covered by the  detention certificates  issued  by the Customs  authorities.   As  has already been pointed out, a Division Bench of the same Court had, in the case, expressed its view that when the container Corporation concerned there, was the custodian on behalf  of the  Customs authorities under section 45(1) of the Act,  it was  under an obigation to release the goods in its  custody without  collecting  demurrage  charges in  respect  of  the period  covered by the detention certificate issued  by  the Customs  authorities.   In M/s.   Grand  Slam  International (supra), which is another decision of the Division Bench  of the same Court relied upon by it in its judgment in C.A. No. 3971  of  1992, the view taken is that the goods  for  which demurrage  charges  were  levied by the  custodian,  if  was solely  on account of the fault of the  Customs  authorities the  liability  for  the  same would  be  of  those  Customs authorities  and not of the consignee.  But, when  once  the Customs  authorities  issued the  detention  certificate  in respect of such pe- 484 riod  of  detention  of goods, the  custodian  who  had  the custody  of  goods on behalf of Customs authorities  had  no option   but  to  release  the  goods  to   the   consignee. Therefore,  the  directions given by the High Court  in  the judgments under appeals to release the goods in its  custody to the con signees without collecting demurrage charges from them  in  respect of the periods covered  by  the  detention certificates  issued by the Customs authorities is based  on its view that when the goods of the consignee had been  kept by the custodian  for and on behalf of the Customs  authori- ties, the consignee cannot be made liable to Make good  such demurrage  charges  in  respect  of  the  periods  of   such detention  for which detention certificates were  issued  by the Customs authorities, which was taken following the  view already  taken in similar matters by its  Division  Benches. As the sustainability of the said view of the High Court  is under  challenge  in  the  present  appeals,  the   question adverted  to at the outset is required to be considered  and answered for rendering a proper decision in them. "(vii).   In  case  of goods seized  etc.  by  customs,  the warehousing/storage charges shall be calculated by M/s.  MM for  the  period  due minus the charges for  the  period  of

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detention at the instance of 55.  The  provision in sub-section (1) of section 45,  which bears on the question  required to be considered, reads thus               "45.   Restrictions on custody and removed  of               imported   goods.   (1)  Save   as   otherwise               provided  in  any law for the  time  being  in               force,  all  imported  goods  unloaded  in   a               customs  area shall remain in the  custody  of               such   person  as  may  be  approved  by   the               Collector  of Customs until they  are  cleared               for home consumption or are warehoused or  are               transhipped in accordance with the  provisions               of Chapter VII." 56.  As becomes clear from the above sub-section  all  imported goods unloaded in  customs  areas shall remain in custody of such person as may be approved by the   Collector  of Customs until they arc cleared  for  the purposes  indicated  therein.  Therefore,  under  the  above provision  the  Collector of Customs is the  person  who  is empowered  to approve the persons that should be in  custody of  goods  unloaded  in customs  areas.   The  Collector  of Customs,  New Delhi who has issued Notice No. 30/86, has  by clause (d) of that Notice approved the IAAI as the custodian of  cargo to be stored in Cargo Terminal, New  International Terminal  Complex - "the  CTNITC", obviously exercising  the powers  conferred upon him by sub-section (1) of Section  45 of the Act.  But, the Collector of Customs who has  approved the  IAAI  as  custodian of the cargo to be  stored  in  its CTNITC  by the said clause (d) requires IAAI to comply  with condition (vii) imposed against it thereunder, thus:               "(vii).   In  case  of goods  seized  etc.  by               customs, the warehousing/storage charges shall               be calculated by M/s.  MM               for  the period due minus the charges for  the               period of detention at the instance of No doubt, as to what obligations should the custodian--  the IAAI approved by the Collector of Customs under  sub-section (1)  of section 45 by clause (d) of the said public  notice, perform,  are  specified in sub-section  (2)  thereof  which reads:               "45.  Restrictions on custody and  removal  of               imported goods.--               (1)  ..............               (2) The person having custody of any               485               imported  goods  in a  customs  area,  whether               under  the  provisions of sub-section  (1)  or               under any law for the time being in force, -               (a)   shall  keep a record of such  goods  and               send a copy thereof to the proper officer;               (b)   shall  not  permit  such  goods  to   be               removed  from  the customs area  or  otherwise               dealt  with,  except under and  in  accordance               with  the permission in writing of the  proper               officer." 57.But,  the said sub-section (2) of Section 45 as  is  seen therefrom,  does not in any way impose an obligation on  the custodian  approved  under sub-section (1)  thereof  not  to collect charges leviable on the consignee by it according to Rules  or  Regulations made by the Statute creating  it  for keeping the imported goods in its custody. 58.That  is  why, it is claimed on behalf of the  IAAI,  the appellant in the appeals that condition (vii) of clause  (d) of the said public Notice has been imposed by the  Collector of Customs without any power or authority conferred upon him

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in  that regard under any provision of the Act or its  Rules or its Regulations and hence unenforceable. 59.Learned  counsel appearing for respondents were not  able to  invite Court’s attention to any provision either in  the Actor  the  Rules or the Regulations made  thereunder  which empowered  the  Collector of Customs to impose by  issue  of public  Notice  the  above condition  (vii)  in  clause  (d) thereof denying the IAAI which is approved as the  custodian of imported goods in Customs area, the right to collect the charges  from the consignee for keeping his  imported  goods detained or seized by the Customs authorities nor my  effort to  find  any  provision  in the Act or  its  Rules  or  its Regulations enabled me to find any provision which conferred such  power of imposing such condition upon the IAAI  merely because it is approved as the custodian of imported goods on behalf  of Customs Department.  However, as to  whether  the Parliament  in enacting the Act intended that custodians  to be approved thereunder to keep the goods coming into customs areas  should relieve the owners (consignees) of such  goods of their liability for payment. of charges for such  keeping or otherwise could be gathered from the provision in section 63 of the Act, it is excerpted               "63.  Payment of rent and warehouse charges. -               (1)  ’The owner of any warehoused goods  shall               pay to the warehouse keeper rent and warehouse                             charges  at the rates fixed under any  law  fo r               the time being in force -or where no rates arc               so fixed, at such rates as may be fixed by the               Collector of Customs.               (2).  If any rent or warehouse charges are not               paid  within ten days from the date when  they               became  due,  the warehousekeeper  may,  after               notice  to the owner of the  warehoused  goods               and with the permission of the proper  officer               cause   to  be  sold  (any  transfer  of   the               warehoused    goods   notwithstanding)    such               sufficient   portion  of  the  goods  as   the               warehouse-keeper may select. 60.When sub-section (1) above, does not relieve the owner of any warehoused goods to pay to the warehouse-keeper rent and warehouse  charges at the rates fixed under any law for  the time being in force or where no rates arc so fixed, at such 486 rates as may be fixed by the Collector of Customs,  although such goods were kept by the warehouse-keeper for and on  be- half of the Customs Department and again when subsection (2) enables  the  warehouse-keeper even to  sell  the  warehouse goods  with the permission of the proper officer for  unpaid rent  or  warehouse charges, it is difficult to  think  that there could be any provision in the Act or the Rules or  the Regulations  made thereunder which confers on the  Collector of Customs power to direct the release of the goods kept  in the custody, as custodian of the Customs Department  without demanding  payment of keeping charges from the consignee  of goods  because  of  detention certificates  issued  in  that regard  by  the Customs authorities, inasmuch as,  the  said provision  shows  the legislative intendment to’ be  to  the contrary. 61.  In  fact,  when  the IAAI in  exercise  of  its  powers conferred   by  sub-section  (1)  of  section  37   of   the International Airports Authority Act, 1971 - "the IAA  Act", and  with the prior approval of the Central Government  have made regulations called the International Airport  Authority (Storage  and  Preservation  of  Goods)  Regulations.  1980,

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regulating  levy of charges or surcharges, scale of  charges and  waiver  of  charges payable by the  owner  in  case  of warehoused  goods with the IAAI, those Regulations not  only do  not come in conflict with the Act or its Regulations  or its Rules but conform to the requirement of the provision of section  63  of  the Act.  When in  pursuance  of  the  said Regulations  policy  directions are issued by  the  IAAI  in supersession  of  earlier  instructions on  the  subject  of waiver  of  demurrage  charges on  production  of  detention certificate issued by the Customs authorities showing  that  detention  of  goods  was  for  no  fault  of consignee,  it can be safely concluded that  any  directions issued by customs Collector contrary to such Regulations and the  policy directions as those issued without authority  in law  are  ultra  vires his powers.   Therefore,  I  have  no hesitation in holding that the aforesaid condition (vii)  in clause (d) of the Customs Public Notice No. 30/86  directing the  IAAI not to collect the custody charges in  respect  of the goods for which detention certificates may be issued  by the  Collector  of  Customs  or his  delegatee,  has  to  be regarded as a condition imposed by the Collector of  Customs without  being conferred any power in that regard either  in the Act or the Rules or the Regulations.  If condition (vii) of  clause  (d)  of the Customs Public  Notice  No.30/86  is regarded as that imposed by the Collector of Customs without authority  of  law, it having been imposed ultra  vires  his powers  under the Act or Rules or Regulations no  Court  can direct  the  IAAI  to release the  goods  of  the  consignee without   collecting  from  him  demurrage  charges   levied according to its Regulations in respect of the goods,  which it  had taken care of as the custodian merely because  there was  a detention certificate of the Collector of Customs  or his delegates issued to the IAAI which had been approved  as the  custodian  of such goods by the  Collector  of  Customs under sub-section (1) of section 45 of the Act. 62.As  the  above view expressed by me  on  condition  (vii) under  clause  (d) of the Customs Public  Notice  No.  30/86 receives  considerable  support from the decisions  of  this Court, where this Court while dealing with the liability  of consignees  of  imported  goods or cargo  to  pay  demurrage charges levied in respect of them according to 487 scales of charges prescribed under Rules or Regulations made under  respective Ports Acts because of their  non-clearance from  Customs areas in Ports, notwithstanding the fact  that concerned  port Authority was the approved  Custodian  under the Customs Act, 1962 and the fact that Customs Collector or his delegate had issued detention certificates which made it clear  that  the  goods were detained for no  fault  of  the consignee and the goods shall be released without collection of demurrage charges, they shall be adverted to presently. 63.Trustees  of  the  Port  of  Madras  v.  M/s.   Aminchand Pyarelal  &  Ors. [(1976) 1 SCR 721] is the  first  of  such decisions  of this Court.  That was a case,  where  imported goods  of M/s.  Aminchand Pyarelal ’the importer’  were  not cleared  from the customs area of the Port of Madras by  the Customs  authorities  before the expiry of free  days.   The goods, therefore, continued to be in the custody of Trustees of  the Port of Madras - "the Board", as approved  custodian of  such  goods  on  behalf  of  the  Customs   authorities. However, a detention certificate was issued to the  importer by the Customs authorities stating that the detention of the imported goods beyond the free days was not due to fault  or negligence on the part of the importer.  The Board, based on the  detention certificate waived demurrage charges  payable

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by the importer amounting to Rs.3,20,951/-, and released the goods to the importer.  Later, when the Customs  authorities owned  their  mistake of issuing the  detention  certificate wrongly,  the Board,filed a suit against the  importer,  the Union  of India and the Customs authorities for recovery  of the  demurrage  charges  which had  not  been  recovered  on account  of the detention certificate.  But, that  suit  was resisted  by  the  importer on the plea that  the  delay  in clearing  the  goods  was due to fault on the  part  of  the Customs authorities and hence there was no legal  obligation on  its  part to pay the demurrage charges.   The  suit  was dismissed  by the High Court accepting the plea of  the  im- porter.   When the Board brought up the matter  before  this Court in appeal, the provisions of the Madras Port Trust Act and the scale of rates fixed by the Board with the  approval of the Central Government pursuant to the provisions of  the Act  having been thoroughly examined, it was held  that  the High Court was in error in its conclusion that the Board had no  power to charge demurrage where goods were  not  removed from its premises not due to the fault or negligence on  the part  of  the  importer, but due to  fault  of  the  Customs authorities.  64. Board of Trustees of the Port of Bombay v. Indian Goods Supplying\  Co.,  [(1977) 3 SCR 343] is the second  of  such decisions  of  this  Court, where this  Court  examined  the sustainability  of  scales of rates of  demurrage  of  goods framed  by the Board of Trustees of the Port of Bombay  "the Board",  the provisions of which were in pari  materia  with the Madras Port Trust Act.  This Court held that the case it was  examining  being  in all force with the  case  of  M/s. Aminchand  Pyare Lal (supra) it had to be concluded  on  the basis  of the decision rendered therein.   Consequently,  it reversed the judgment of the High Court in appeal by holding that  the  High  Court was in error in  its  view  that  the importer of the goods could not be held responsible for  any delay  not  attributable  to  his own  fault  and  that  the demurrage  under the statute could never be imposed as  long as goods were detained for the purpose of 488 Import Trade Control Regulations. 65.  Board of Trustees of the Port of Bombay v. Jai Hind Oil Mills  Co.  & Ors. [(1987) 1 SCR 932] is the third  of  such decisions of this Court.  There, the provisions of the Major Port  Trust Act, 1963, which were under examination of  this Court  having  been  found to be in pari  materia  with  the provisions of the Ports Act considered by this Court in M/s. Aminchand  Pyare Lal (supra) and Indian Goods Supplying  Co. (supra), by following the decisions rendered therein, it was held thus :               The  power  of a Port Trust to  fix  rates  of               demurrage  and  to recover the  same  from  an               importer or exporter (although the question of               an  exporter paying demurrage  arises  rarely)               under  law and to show concession  as  regards               demurrage  charges in certain specified  cases               is recognised by the Court in the Trustees  of               the Port of Madras V. M/s.  Aminchand Pyarelal               & Others, (1976) 1 S.C.R. 721 and in the Board               of  Trustees of the Port of Bombay  v.  Indian               Goods  Supplying  Co., (1977)  3  S.C.R.  343.               These  decisions  arc no doubt  based  on  the               relevant  laws  which  were in  force  at  the               material  time.  But the decisions  are  still               relevant  insofar as cases arising  under  the               Act  because the Act also contains  provisions

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             more   or  less  similar  to   the   statutory               provisions  considered in the said  decisions.               Demurrage  charges  are  levied  in  order  to               ensure  quick clearance of the cargo from  the               harbour.  They are always fixed in such a  way               that  they  would  make  it  unprofitable  for               importers  to  use  the  port  premises  as  a               warehouse.   It is necessary to do so  because                             congestion in the ports affects the free  move -               ment  of ships and the loading  and  unloading               operations.  As stated earlier, the Port Trust               shows  concession  to the party  concerned  in               certain types of cases. 66.      From the above decisions of this Court  it  becomes clear  that an authority created under a statute even if  is the   custodian  of  the  imported  goods  because  of   the provisions  of the Customs Act, 1961, would be  entitled  to charge demurrages for the imported goods in its custody  and make the importer or consignee liable for the same even  for periods  during  which he/it was unable to clear  the  goods from  the  Customs  area, due to fault on the  part  of  the Customs  authorities or of other authorities who might  have issued detention certificates owning such fault. 67.  Thus, the above decisions of this Court which    uphold the  power of Ports Trusts created under Ports Act  to  levy and  collect  demurrage  charges  for  goods  they  keep  as Custodians  for  Customs  Department  from  the   consignees notwithstanding  the  detention certificates issued  by  the Customs  Department  clearly support the view I  have  taken that   the   IAAI,  an  authority  constituted   under   the International Airports Authority Act, 1971, when is entitled to  collect  charges for keeping custody  of  the   imported goods  by regulations made thereunder and according  to  its policy, the Collector of Customs or his delegates could  not direct  the IAAI by issuance of a detention  certificate  to release the goods of the importer without collection of  the charges  liable to be paid in respect thereof,  inasmuch  as the  Collector  of  Customs or his delegates  has  not  been empowered  under the provisions of the Act or its  Rules  or its  Regulations  to direct release of  the  imported  goods without  collection of keeping charges, for the  keeping  of which  by the IAAI, charges are to be paid under  the  Rules made under the International Airports Authority Act, 1971. 68.Since  Central  Warehousing  Corporation  created   under Warehousing Corpo- 489 ration  Act, 1962 stands in the same footing as that of  the IAAI created under the International Airports Authority Act, 1971  in  the matter of keeping of goods  as  custodians  on behalf of the Customs Department and the entitlement of both of them under the respective Acts, Rules and Regulations  to levy  and  collect  demurrage charges  from  the  owners  or consignees of such goods, not being different, the view have taken on the entitlement of IAAI to levy and collect charges or demurrage charges for keeping goods by it as custodian on behalf  of  the Customs Department, equally holds  good  for Central Warehousing Corporation. 69.  Therefore, my answer to the question    considered   by me is in the negative i.e.    the   Collector   of   Customs empowered under subsection (1) of section 45 of the  Customs Act,  1962 to approve persons to be custodians  of  imported goods  in customs areas until they are cleared  as  provided for  therein,  while approving  the  International  Airports Authority  of  India to be the custodian  of  such  imported

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goods  in  the customs area of Indira  Gandhi  International Airport, New Delhi and Central Warehousing Corporation to be the  custodians  of  such imported  goods  received  at  the customs  area  the Container Freight Station,  CWC  Complex, Pragati  Maidan,  New Delhi, by issue of  public  notice  or otherwise  in  that regard,if by such  notice  or  otherwise directs such custodians not to collect custody charges  from the  consignees  of  such goods - "the  Cargo",  because  of detention certificates issued by him or his delegates,  will not be acting within the powers conferred upon him under the Act, its Rules or its Regulations and hence directions given by  the Customs Collector or his delegatees to  release  the goods   of  importers  or  consignees   without   collecting demurrage  charges  from them cannot be enforced  by  Courts either, against IAAI or CWC. 70.  The view I have so taken makes the judgments  of   High Court of Delhi under appeals unsustainable, for the view  of its  earlier decisions in M/s.  Trishul Impex  case  (supra) and  Grand  Slam case (supra) which it  has  followed,  also cannot be sustained. Civil Appeal No. 422 7 of 1992 71.  The  Central Warehousing Corporation established  under the provisions of the Warehousing Corporation Act, 1962 is a creature  of statute as is the IAAI under the  International Airports Authority Act, 1971.  The entitlement of the CWC to recover  demurrages  for the goods of which it  becomes  the custodian  under  the  provisions  of  the  Act  cannot   be different from that of the IAAI, as indicated in the earlier judgment.  If that be so, what I have said in the  aforesaid appeals  of  the IAAI would equally apply to the  CWC  also. The  High Court having directed the Customs  authorities  to issue  detention  certificates in respect of  the  goods  of which the CWC was  the owner has relieved the importer - re- spondent-1 in the appeal from his liability to pay demurrage charges.  Because of the view I have taken in my judgment in the earlier appeals it has to be held that the High  Court’s direction  relieving respondent-1 from his liability to  pay demurrage charges cannot be sustained. 72.  In  the result, Civil Appeal Nos. 798 of 1992, 3971  of 1992  and  4227 of 1992 are allowed.  The judgments  of  the High Court under appeals are set aside.  The Writ 490 Petitions  filed by respondents in each of the cases  before the  High Court are dismissed.  In the facts of the  present appeals, there shall be no order as to costs. ORDER 73.  For reasons given by us in our separate judgments (R.M. Sahai, J. for dismissal of the appeals whereas S.P. Bharucha and  N.  Venkatachala,  JJ. for allowing  the  appeals)  the appeals  succeed and are allowed.  The orders passed by  the High Court are set aside. But  in the circumstances of   the case, there shall be no order as to costs.