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PETITIONER: TRUSTEES OF THE PORT OF MADRAS

       Vs.

RESPONDENT: M/S. AMINCHAND PYARELAL & ORS.

DATE OF JUDGMENT09/09/1975

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. RAY, A.N. (CJ) MATHEW, KUTTYIL KURIEN

CITATION:  1975 AIR 1935            1976 SCR  (1) 721  1976 SCC  (3) 167  CITATOR INFO :  R          1977 SC1622  (10)  R          1984 SC1543  (21)  R          1987 SC 622  (10)

ACT:      Madras Port  Trust Act 1905-Sec. 42, 43, 43A-Port Trust Rules 13-  Bye-law-Nature  of-Demurrage-Unreasonable-Customs Act Secs. 17(3) & 1(4).

HEADNOTE:      On 10-4-1968,  a steamer arrived at the Madras port and landed inter  alia a  consignment or  202 bundles  of  black plain sheets  of various  sizes. The appellants received the goods and  stored them  in the transit sheds. The goods were imported by  the first  respondent  under  an  authorisation issued by  the State Trading Corporation of India which held a licence  to import  the goods  from Hungary.  The clearing agents of  the first  respondent filed  a bill of entry with the Collector  of  Customs.  But,  the  Customs  authorities detained the  goods as  the  specifications  in  the  import licence did  not tally  with the description of the imported goods. The  Customs Authorities  then issued  a  show  cause notice to  the 1st  respondent  and  after  considering  his explanation passed an order confiscating the goods.      The first  respondent preferred  an appeal against that order   to  the  Board  which  allowed  the  appeal.  On  an application of  respondent No.  1  the  Customs  Authorities issued a certificate stating that the goods were detained by the Customs  Authorities from  24-4-1963  to  21-8-1964  for examination under  sections 17(3)  and 17(4)  of the Customs Act,  1962   other  than   in  the   ordinary    process  of appraisement and  that the  detention was due to no fault or negligence on  the part of the correspondent. Acting on this certificate, the  appellants waived  the demurrage  for  the period covered  by the  certificate. As a result of the said certificate, the  appellant charged  respondent No.  1,  Rs. 1963/- instead  of  Rs.  3,20,951/-  by  way  of  demurrage. Thereafter, the respondent No. I cleared the consignment.      In January,  1965, the appellants wrote a letter to the Customs Authorities  stating that the certificate was issued erroneously  and   that  the   Customs  Authorities   should

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reconsider  the   matter.  In   April,  1965,   the  Customs Authorities owned  the  mistake  that  the  certificate  was incorrect as  the goods  were detained in order to ascertain whether the  Import Trade  Control formalities were complied with and  not for  examination and  assessment of duty under Sections 17(3) and 17(4) of the Customs Act.      The  appellants   brought  the   present  suit  against respondent No.  1.  and  the  Union  of  India  and  Customs Authorities to  recover the  balance of’ demurrage amounting to about  Rs. 3  Lacs.  The  first  respondent  disputed  is liability to  pay the  demurrage on the ground that it could not be  penalised either for the delay caused by the Customs Authorities in clearing the goods or in the issuance by them of a  wrong certificate. The first respondent also contended that the  scale of  charges in  the Port  Trust  Regulations under the  heading Demurrage  was void  and ultra vires both for the  reason that  it was  unreasonable and  because  the scale of  charges  was  not  within  the  authority  of  the appellants.      The High  Court dismissed  the suit  for the  following reasons           (1)  The Scale  of rates  fixed by the Board is in                the nature of bye laws.           (2)  Viewed as  a bye-law  Rule 13(b)  under which                the Board can charge demurrage for the period                during which  the goods  are detained for. no                fault or  negligence of  the importer  or his                agent, is unreasonable and therefore void.           (3)  In principle,  there can  be  no  distinction                between cases  falling under  clause (a)  and                those falling under clause (b) of Rule 13 and                if 722                no demurrage  is leviable in respect of cases                falling within  clause (a) no demurrage could                be charged in respect of cases falling within                clause (b). The distinction made by the Board                between the  two kinds of cases was therefore                arbitrary and unreasonable.           (4)  ’Demurrage’,  being   a  charge   for  wilful                failure to  remove the  goods, can  be levied                only if  the failure  to remove  the goods is                due  to  the  fault  or  negligence,  of  the                importer or his agent.           (5)  Having regard  to this  well accepted meaning                of the  word ’demurrage’, the authority given                to the  Board by  section 12  of the  Act  to                frame the  scale of  rates can  be  exercised                only for the purpose of levying charges where                the importer  was not prevented by any lawful                authority from  clearing the  goods from  the                transit area  and he  had  defaulted  or  was                negligent in clearing the goods.           (6)  Since Rule 13(b) empowers the Board to charge                demurrage even  when the  goods are  detained                for no fault or negligence of the importer or                his  agent,   it  is   beyond  the  authority                conferred by  section 42  and  is  therefore,                void.      Allowing the appeal, ^      HELD:(1) The  High Court erred in holding that the sale of rates and statements of condition framed by the appellant under sections  42, 43,  and 43A are by-laws. Those sections confer authority  on the.  Board to frame a sale of rates at

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which and  a statement  of conditions under which any of the services specified  therein shall be performed. [732-C, 731- F]      2. A bye-law has been said to be an ordinance affecting the public,  or some  portion of the public, imposed by some authority clothed  with statutory powers, ordering something to be  done or  not to  be  done  and  accompanied  by  some sanction or  penalty for  its  non-observance.  The  Board’s power to  frame a scale of rates and statement of conditions is not  a regulatory  power to  order that something must be done or  something may not be done. The rates and conditions govern the  basis on  which the Board performs the services. Those who  desire to  avail of the services of the Board are liable to  pay for those services at prescribed rates and to perform the  conditions framed by the Board. In fact some of the services  which the  Board renders  are optional.  Where services are  offence by  a public authority on payment of a price, conditions  governing the  offer  and  acceptance  of services are  not in the nature of bye-laws. They reflect or represent an  agreement between the parties one offering his services at the prescribed rates and the other accepting the service at those rates. [732-D-H]      3. Bye  laws may  be treated  as  ultra  vires  on  the grounds, amongst  others that  they  are  repugnant  to  the statute  under   which  they  are  made  or  that  they  are unreasonable. But  even a  bye-law cannot  be declared ultra vires on  the ground  of unreasonableness merely because the court thinks  that it goes further than is necessary or that it  does   not  contain   the  necessary  qualifications  or exceptions. Kruse  v. Johnson  [1898] 2  Q.B. 91, relied on. [731-F. 733 B]      4. Port  Trusts are  bodies of  a public representative character  who   are  entrusted   by  the  Legislature  with authority to,  frame a  scale of’  rates and  a statement of conditions subject to which the shall or may perform certain services. Port Trusts are not commercial organisations which carry on  business  for  their  own  profit.  The  Board  of Trustees is broad based body representing a cross section of a variety  of interests.  The requirement of sanction by the Central Government  is a  restraint on unwise, excessive, or arbitrary  fixation  of  rates.  section  or  a  variety  of interests. The  requirement of sanction by the Central whole or any portion of rates or charges leviable according to any scale in  force under  section 44. Thus the Statute provides for the  necessary safeguards,  checks and counter checks as an insurance  against fixation  and levy  of harsh or unjust rates. Section  49 of the Act confers power on the Assistant Collector of  Customs if  he is  satisfied  that  the  goods cannot be cleared within a 723 reasonable time  to permit  that  the  goods  might  pending clearance be  stored in  a public  warehouse or in a private warehouse. In  face of these considerations it is impossible to  characterise  the  scheme  for  the  levy  of  rates  as arbitrary or unreasonable. [734 & G-H, 735 A-C]      5. The High Court erred in equating cases falling under clause (h)  with those  falling under clause (a) of Rule 13. The two  classes deal  with different  sets of cases. Clause (a)  deals   with  cases   where  goods   are  detained  for examination under  sections 17(3)  and 17(4) or for chemical test under  section 144  whereas clause (b) deals with cases where the  goods are  detained on  account of  Import  Trade Control  formalities   or  for   compliance  of  formalities prescribed under  the Drugs Act. There is no warrant for the court substituting   its  own view  as to  the allowance  of

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three days  in a technical matter like the fixation of rates which has been considered by an export Board of Trustees and whose decision has been confirmed by the Central Government. Equating the  two clauses of cases dealt with by clauses (a) and (b) of Rule 13 might seem to the court a more prudent or reasonable way  of fixing  scales of rates but that is not a correct test  for deciding  the  validity  of  the  impugned provision. [735-D-F]      6. The  High Court  overlooked a  fundamental aspect of fixation of rates. The Board is under a statutory obligation to render  services of various kinds and those services have not to be rendered for the personal benefit of this for that importer but  in the larger national interest. Congestion in the  ports  affects  the  free  movement  of  ships  and  of essential goods.  The scale  of rates  has, therefore, to be framed in  a manner  which will act both as an incentive and as a  compulsion for  the expeditious  removal of  the goods from the  transit area.  Ships, like wagons, have to be kept moving and  that can happen only if there is pressure on the importer to  remove the goods from the Board’s permises with the utmost expedition. 1735-F-H; 736 A]      7. As  regards the  appellants’ claim against the first respondent. facts  must come  before the  law because  legal principles cannot  be applied  in a vacuum. No oral evidence was let  by the  parties and  documents do  not  prove  them selves nor  indeed is  the admissibility of a document proof by itself  of the truth of its; contents. The Import Licence stood in  the name  of the  State  Trading  Corporation.  It issued an  authorisation in  favour of the first respondent. The  first   respondent  was   only  entitled  to  charge  a commission for  the work  done by  it in  pursuance  of  the authorisation issued  by the  Corporation. If the appellants were to  enforce the  statutory lien.  the incidence  of the demurrage would  have fallen  on the Corporation in whom the title to  the goods was vested. The appellants permitted the goods to  be cleared  without demanding  the demurrage which they claimed  later, thereby depriving the respondent of the opportunity and the right to reject the goods as against the supplier. In the absence of any more faces, it is impossible on the  record as it stands, to accept the appellants’ claim against the first respondent. [737 F-H, 738 A-B]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No  707 of 1973.      From the  Judgment and  Decree dated  the 23rd December 1971 of the Madras High Court in Civil Suit No. 158 of 1966.      K. S.  Ramamurthi, S.  Balakrishnan, N.  M. Ghatate for the appellant.      A.K. Sen, J. S. Arora and H. K. Puri for respondent No. 1.      G. L.  Sanghi and Girish Chandra for respondents Nos. 2 and 3.      The Judgment of the Court was delivered by      CHANDRACHUD, J.-The  Trustees of  the Port  of  Madras, appellants herein,  filed suit  No. 158  of 1966 in the High Court of  Madras for  recovering a  sum of  Rs. 3,1 8,968.04 from the respondents by way 724 of demurrage.  The 1st  respondent is  a  firm  called  M/s. Aminchand   Pyarelal, the  2nd respondent  is the  Union  of India and  the 3rd  respondent is  the Collector  of Custom, Madras. A  learned single  Judge  referred  the  suit  to  a

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Division Bench  which  dismissed  it  by  a  judgment  dated December 23,  1971. This is an appeal by certificate granted by  the   High  Court   under  Article   133(1)(a)  of   the Constitution.      On April  10, 1963  a Steamer "A.P.J. AKASH" arrived at the Madras Port and landed, among other goods, a consignment of 202  bundles of  black plain sheets of various sizes. The appellants received  the goods  and stored  them in  transit sheds. The  goods were  imported by the 1st respondent under an authorisation  issued by the State Trading Corporation of India which held a licence dated June 16, 1962 to import the goods  from   Hungary.  The   Clearing  Agents  of  the  1st respondent filed a Bill of Entry with the 3rd respondent but the  customs   authorities  detained   the  goods   as   the specifications in  the import licence did not tally with the description of  the imported  goods. The Customs authorities then issued  a show  cause notice  to the 1st respondent and after considering  its explanation the 3rd respondent passed an order  on November  12, 1963 confiscating the goods under section 111 (a) of the Customs Act, 1962. The 1st respondent preferred an  appeal against that order to the Central Board of Excise  and Customs,  New Delhi, which was allowed by the Board on  July 27,  1964. On  August 21,  1964 the  Clearing Agents  of   the  1st   respondent  requested   the  customs authorities to issue a certificate for the permission of the transit dues  for the  period during  which the  goods  were detained. A  certificate was  accordingly issued  by the 3rd respondent stating  that the  goods  were  detained  by  the Customs Authorities  from April  24, 1963 to August 21, 1964 for examination under section 17(3) and section 17(4) of the Customs Act  1962, other  than in  the ordinary  process  of appraisement and  that the  detention was due to no fault or negligence on the part of the 1st respondent. Acting on this certificate, appellants  waived the demurrage for the period covered by  the certificate,  whereupon the  1st  respondent cleared the  consignment on August 25 and August 27, 1964 on payment of  the Harbour  dues, Cranage charges and Demurrage charges for the period not covered by the certificate.      Thinking that  the certificate  was issued erroneously, appellants wrote  a letter dated January 27, 1965 to the 3rd respondent requesting  him to  reconsider the matter. By his letter of  April 12,  1965 the  3rd respondent  owned up the mistake and stated that the certificate was incorrect as the goods were detained in order to ascertain whether the Import Trade Control  formalities were  complied with  and not  for examination and  assessment of  duty under section 17(3) and (4) of the Customs Act.      The case of the appellants is that due to the negligent mistake committed  by the  3rd  respondent  in  issuing  the certificate, they charged to the 1st respondent a sum of Rs. 1963.60 only whereas 725 it was  liable to  pay a  sum of  Rs. 3,20,951.64  by way of demurrage. The  appellants called upon the 3rd respondent to pay up  the balance  but the latter, by his reply dated July 6, 1965  repudiated all liability, contending that the Union of India  could not  be held  liable for  the  negligent  or tortious acts  of its officers done in good faith during the course of  their official  duties and  that  the  appellants should seek J their remedy against the 1st respondent.      Later, the  appellants brought the present suit against the three  respondents to recover the demurrage. The case of the appellants  as made  out  in  the  plaint  is  that  the liability of  respondents 2  and 3  was  in  the  region  of contract or  quasi-contract, that the appellants were put to

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a loss  due to  the wrong  certificate  issued  by  the  3rd respondent and  therefore respondents  2  and  3  could  not repudiate their  liability to  pay the demurrage. As regards the 1st  respondent, the  case of  the appellants is that it had contravened  the Import  Trade Control regulations, that it was fully aware of the true facts that it was not open to it to  take advantage  of the  wrong certificate  issued  by respondent 3  and that  therefore it  was also liable to pay the demurrage.      The 1st  respondent disputed  its liability  to pay the demurrage contending  that it  could not be penalised either for the  delay caused by the Customs authorities in clearing the  goods   or  for   the  issuance  by  them  of  a  wrong certificate.  According   to   the   1st   respondent,   the consignment imported  in April,  1963 was one of a series of consignments which  the 1st  respondent had imported under a con tract  with the  State Trading  Corporation for  a fixed remuneration. The  1st respondent  had not authority to deal with he  imported goods - but was bound to hand them over at the agreed  price to  the State  Trading Corporation  or its nominee The  1st respondent  further stated  that  the  only controversy raised  by the  Customs authorities related to a difference in  the size  of the  sheets imported  under  the import licence and that if the appellants had called upon it to pay  by way  of demurrage a sum as large as over rupees 3 lakhs, the  1st respondent  would have rejected the goods as against the  supplier unless  the State  Trading Corporation was willing to accept the goods. The import clearance orders were granted  on the recommendation of the Corporation which held the  import licence and which arranged for the grant of import clearance  permits to persons like the 1st respondent on the  basis that  the goods were imported on behalf of the Corporation. Finally  the 1st  respondent contended that the scale of  charges in  the Port  Trust Regulations  under the heading "Chapter IV-Demurrage" was void and ultra vires both for the  reason that  it was  unreasonable and  because  the scale of  charges  was  not  within  the  authority  of  the appellants. The  unreasonableness of  the demurrage charges, according to  the 1st  respondent, was obvious from the fact that whereas  the goods  were of  the value  of Rs. 1,31,501 appellants were claiming a sum of over rupees 3 lakhs by way of demurrage. 726      The 2nd  respondent, the  Union of  India, set  out the various facts  attendant upon  the import  of the  goods and contended that the appellants had no cause of action against it or  the 3rd  respondent. The  3rd respondent  adopted the written statement of the 2nd respondent.      The High  Court held  that the  levy of  demurrage  ill cases  where   the  goods   were  detained  by  the  Customs authorities for  no fault  or negligence  on the part of the importer, was unreasonable and also beyond the powers of the appellants and  that the  appellants were  not  entitled  to recover demurrage from any of the respondents.      Two questions,  mainly, arise for consideration in this appeal :  firstly, whether the scale of fees under which the appellants charge  demurrage is  void as  being unreasonable and as  being beyond their powers; and, if the answer to the first  question   is  in   the  negative,  whether  the  1st respondent is  liable to  pay the  demurrage claimed  by the appellants. Counsel  for the  appellants did  not press  the claim against respondents 2 and 3. The decision of the first question turns  on the  relevant  statutory  provisions  but before considering  the validity  of the  levy, it  would be necessary to  know the  procedure which  is adopted  in  the

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Madras Port  during the process of importation and clearance of goods.      The local agents of the ship inform the Traffic Manager of the  Port Trust  of the  probable date  of arrival of the ship and  submit to  the customs  House the  "Import General Manifest" which  contains a  description of  the goods which are at  board for landing at the Port. The Dock Labour Board supplies the  labour to the Master of the ship for unloading the goods  and for  putting them  on the  quay-side so as to enable the  Port Trust  authorities to  take charge  of  the goods. The  Port Trust labour handles the goods on the shore and when  the Port  Trust takes  charge of  the same,  it is obliged under  section 39(3)  of the  Madras Port Trust Act, 1950, to  give a receipt to the Master of the Ship. With few exceptions, all goods received by the Port Trust are kept in the transit  sheds. The  Port Trust charges Harbour Dues for receiving the  goods, handling them and keeping them in tile transit  sheds.   The  importer   then  files   the   Import Application and  the Steamer Agent’s Delivery order which is in the nature of an authority from the Steamer as bailor, to the Port  Trust as  the bailee,  to deliver the goods to the importer or  his agent.  Section 45 of the Customs Act, 1962 forbids the  person having the custody of any imported goods in the  customs area  from permitting  their removal  except under and  in accordance  with the written permission of the Customs authorities.  The goods  are cleared  by the Customs authorities if  the importation  is not  contrary to any law and if  the importer  pays the  import duty  assessed on the goods and  the other  charges payable under the Customs Act. If the  customs officer is of me opinion that the goods have been imported  contrary to  any prohibition  imposed by  the Customs Act  or the Imports and Exports (Control) Act, or by the orders issued or the rules framed thereunder, 727 a notice  is issued  under section 111 or section 112 of the Customs Act  calling upon the importer to show cause why the goods should  not be confiscated. If the importer shows good cause" the  goods are  released and  thereupon  the  Customs authorities issue a Detention Certificate stating if that be true, that  the goods  were detained  for examination  under sections 17(3)  and (4)  of the  Customs Act  and  that  the detention was  due to  no fault or negligence on the part of the importer.      The Port  Trusts are  under a  statutory obligation  to perform certain  duties and  equally so  they have statutory powers to  fix scales  of fees  and rates.  The statute with which we  are here  concerned directly  is the  Madras  Port Trust Act,  2 of 1905, (hereinafter called "the Act"). It is necessary to notice the relevant provisions thereof in order to understand the controversy in this appeal.      Section 5(1) defines the "Board" to mean the Trustee of the Port  of Madras  appointed under  the Act. Section 5(12) defines "Rate"  as including  any toll,  due, rent,  rate or charge leviable  under the  Act.  By  section  7  the  Board consists of  21 Trustees  including the  Chairman. Section 8 provides that  the Chairman  of the Board shall be appointed by the  Central Government  and the remaining trustees shall be (1)  the Collector  of Customs, Madras, (2) the Municipal Commissioner  for  the  City  of  Madras,  (3)  the  General Manager, M.  & S. M. Railway, (4) the General Manager, South Indian Railway;  (5) one  representative of  the  Mercantile Marine Department  chosen by the Central Government; (6) one representative of the Defence Services chosen by the Central Government. (7)  one representative  of the State Government chosen by  the State  Government; (8) two representatives of

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labour chosen  by the  Central Government after consultation with the  registered trade  unions,  if  ally,  composed  of persons  employed  in  the  port;  and  (9)  eleven  elected trustees. By  section 8(2),  of the  eleven elected trustees one is  elected by  the Madras Municipal Corporation and the remaining by  such provincial  or local  bodies representing commercial interests  as the  Central Government  may,  from time to  time, by  notification  in  the  official  Gazette, specify. Such  notification may  also specify  the number of trustees that  each of  such bodies  may elect.  Section  10 which lays  down disqualifications  for the trustee’s office provides, inter alia, that a person shall be disqualified to be a trustee if, inter alia, he holds any office or place of profit under  the Board.  This provision  does not, however, apply to  the Chairman.  ex-officio  Trustees  and  Trustees appointed by  virtue of  office. Section 23(1) lays down the procedure governing  the  proceedings  of  the  Board  while section 23  (2) provides  that the  Board may,  from time to time, appoint committees consisting of not less than five of its members  for  carrying  into  effect  any  part  of  the provisions of  the Act  with  such  powers  and  under  such instructions, directions  or limitations as shall be defined by the Board.      By  section  39  the  Board  is  under  an  obligation, according  to   its  powers,   to  provide   all  reasonable facilities for, and has the power to 728 undertake the  services of  the description mentioned in the sub-section among  those services  are landing of goods from vessels in  the Port,  and receiving,  storing or delivering goods brought  within the  Board’s premises.  Section  39(2) imposes upon the Board the obligation, if so required by any owner, to  perform in  respect of  goods all  or any  of the services mentioned  in clauses  (a), (b)  and (d) of section 39(1). Under  section 39(3)  the Board  shall, if  required, take charge  of the  goods for the purpose of performing the service and  shall give  a receipt  in the  prescribed form. After the  goods have  been taken  charge of and the receipt given by  the Board,  no liability  for any  loss or  damage which may  occur to  the goods  can attach  to any person to whom a receipt shall have been given by the Board  or to the master or  the owner of the vessel from which the goods have been landed.  Under section  40 the  responsibility  of  the Board for the loss, destruction or deterioration of goods of which it  has taken charge is, subject to cerain provisions, that of  a bailee  under sections  151, 152  and 161  of the Indian Contract Act subject to certain modifications.      Chapter VI  of the  Act which appears under the heading "Imposition and Recovery of Rates" contains provisions which have direct impact on the contentions raised in this appeal. Section 42  empowers the  Board to frame a scale of rates at which and  a statement  of the conditions under which any of the services  specified in clauses (a) to (e) of the section shall be  performed by  the  Board.  Clause  (b)  refers  to landing of  goods from  any vessel upon any land or building in the possession or occupation of the Board or at any place within the  limits  of  the  Board.  Clause  (d)  refers  to "wharfage, storage or demurrage of goods on any such place". Sections 43  and 43-A also confer on the Board power similar to that  conferred by  section 42. By Section 44 every scale and every  statement of conditions framed by the Board under sections 42,  43 and  43-A shall be submitted to the Central Government  for   sanction  and,   when  so  sanctioned  and published in  the official Gazette, such scale and statement of conditions  have the force of law. The Central Government

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has power  under section 44(1a) at any time to cancel any of the scales  framed by the Board or to call upon the Board to modify any  portion of such scales whereupon the Board shall modify the scales according to the directions of the Central Government. Section  44(2) confers  power on  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. Under section 50 rates in respect of goods to be landed are payable immediately on the landing of  the goods;  rates in  respect  of  goods  to  be removed from  the premises  of the  Board are payable before the goods are removed. Under section 51 the Board has a lien on the  goods for the amount of all rates leviable under the Act on the goods and it may seize and detain the goods until the rates  are fully  paid. This  lien  has  by  section  52 priority over  all other liens and claims except for general average and  the ship-owner’s  lien for  freight  and  other charges where 729 such lien  exists and  has  been  preserved  in  the  manner provided in  section 53.  Under section  56,  if  the  rates payable to  the Board  remain unpaid, it is competent to the Board to  sell the  goods by  public auction after expiry of two months from the time That the goods have passed into its custody and in the case of perishable goods after the expiry of a shorter period not being less than 24 hours. Section 57 requires that  the notice  of sale  must be published in the official Gazette.  By section  58 notice is also required to be given  to the  owner of  the goods, if the address of the owner is known. Under section 58-A? notwithstanding anything contained in  the Act, where any goods placed in the custody of the  Board are  not removed  by the owner or other person entitled there  to from the premises of the Board within one month, the  Board may,  after due  notice, required that the goods be  removed forthwith or that in default of compliance the goods  would be  liable to be sold by public auction. In cases where  all the rates and charges payable under the Act have been  paid, such  a notice  for removal  of  the  goods cannot be  given before  the expiry  of two  months from the date on  which the  goods. were placed in the custody of the Board. If  the notice is not complied with, the Board may at any time  after the expiration of one month from the date on which the  notice was  served or published sell the goods by public auction.  Section 62 preserves the right of the Board to recover the rates by a suit.      Section 95  of the  Act which  appears ill  Chapter  XI called "Bye  Laws" empowers  the Board  to make bye-laws not inconsistent with the provisions of the Act, inter alia, for the safe  and convenient use of sheds, for the reception and storage of  goods brought  within the premises of the Board, for the  mode of the payment of the rates leviable under the Act and generally for carrying out the purposes of the Act.      Section 109  of the  Act which has an important bearing on these  proceedings provides that nothing contained in the Act shall  affect any  power vested  in the Chief officer of Customs under  any Law  for the time being in force. Section 49 of  the Customs  Act, 52  of 1962, provides that where in the case  of any  imported goods, the Assistant Collector of Customs, is  satisfied on  the application  of the  importer that the  goods cannot  be cleared within a reasonable time, the goods  may, pending clearance, be permitted to be stored in  a   public  warehouse  or  in  a  private  warehouse  if facilities  for  deposit  in  a  public  warehouse  are  not available.      Acting in  pursuance of the power conferred by sections

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42, 43  and 43-A,  the appellants  have framed  a "Scale  of Rates" payable  at the  Port of  Madras, which has been duly sanctioned by the Central Government under section 44 of the Act. We are concerned with the rates framed under section 42 which are contained in Chapter IV of the Scale of Rates. The various scales  of rates  arc divided into three parts: Book I, Book  II and  Book III. Chapter IV is headed "Demurrage " and it occurs in Book I called "Charges for certain 16-L925SupCI/75 730 services which  the Board  is  prepared  to  render  to  the public". The introductory part of Chapter IV says:           "Demurrage is  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 Chapter IV prescribes conditions governing "Free Days",  the normal rule being that two working days in the case  of coast  cargo and three working days in the case of foreign  cargo excluding Sundays and the Board’s holidays arc treated  as free  after complete discharge of a vessel’s cargo, or  the date  when the last package was put overside. Rule 13(b)  is the focus of controversy between  the parties and it  would be  used to  read along, with it clause (a) as well:           "13. The  following free  periods are  allowed  in      addition  to   the  free   periods  applicable  as  per      description of goods:-           (a)  Periods during  which goods  are detained  by                the  Collector  of  Customs  for  examination                under Section 17(3) and (4) for chemical test                under Section  144 of  the Customs  Act, 1962                other  than   the   ordinary   processes   of                appraisement and  certified by  the Collector                of Customs  to be  not  attributable  to  any                fault o.;  negligence  on  the  part  of  the                Importers plus  one working  day. The Customs                holidays will also be treated as free days in                addition.           (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  in cur  demurrage had                there 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." Under clauses  (c) and  (d) of  Rule 13, period during which the goods  are detained by the Port Health Authority and the periods during  which the  Board is unable to trace packages owing lo  congestion  of  accommodation,  wrong  sorting  or incorrect tallying are also treated as Free Days.      The High  Court dismissed  the appellants  suit for the following reasons: (1) The Scale of Rates fixed by the Board is in the nature of Bye-Laws; (2) Bye-Laws may be treated as ultra vires for the

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731      reasons, inter  alia, that  they are  repugnant to  the statute  under   which  they  are  made  or  that  they  are unreasonable; (3)  Viewed as  a bye-law,  Rule  13(b)  under which the  Board can  charge demurrage for the period during which the  goods are  detained for no fault or negligence of the importer  or his  agent, is  unreasonable and  therefore void; (4)  In principle, there can be no distinction between cases falling  under clause  (a)  and  those  falling  under clause (b)  of Rule  13, and  if no demurrage is leviable in respect of  cases falling  within clause  (a), no  demurrage could be  charged in  respect of cases falling within clause (b). The distinction made by the Board between the two kinds of  cases  is  therefore  arbitrary  and  unreasonable;  (5) ’Demurrage’, being a charge for wilful failure to remove the goods within  the free  period can  be believed  only if the failure  to  remove  the  goods  is  due  to  the  fault  or negligence of  the importer  or his agent; (6) Having regard to this  well accepted  meaning of the word ’demurrage’, the authority give  to the  Board by  section 42  of the  Act to frame the  scale of  rates can  be exercised  only  for  the purpose of  levying  charges  where  the  importer  was  not prevented by  any lawful  authority from  clearing the goods from the  transit area and he had defaulted or was negligent in clearing  the goods;  (7) Since  Rule 13(b)  empowers the Board to  charge demurrage  even when the goods are detained for no  fault or negligence of the importer or his agent, it is beyond  the authority  conferred by  section  42  and  is therefore  void;   (8)  All  the  same,  if  two  views  are reasonably  possible"   a  construction  which  favours  the validity of  a rule  or statute  should be preferred to that which renders  it void Therefore, under the scale of charges for demurrage  provided in  Chapter IV,  the appellants  can levy demurrage  only in  cases where   the delay in clearing the goods  is due to the fault or negligence of the importer or his agent.      The  first   four  of   these  reasons  relate  to  the invalidity of  Rule 13(b) viewed as a bye-law while the last four relate  to its  invalidity on  the ground that it is in excess of  the power  conferred by  section 42  of the, Act. Both of these sets of reasons appear to us unsustainable.      As stated in "Craies on Statute Law" (7th Ed., pp. 325- 326), bye-laws may be treated as ultra vires on the grounds, amongst others, that they are repugnant to the statute under which they  are made  or that they arc unreasonable. But the error of  the High  Court’s judgment  lies in the assumption that the "Scale of Rates and Statement of Conditions" framed by the  appellants under  sections 42,  43 and 43-A are bye- laws.  Section  42  with  which  we  are  concerned  confers authority on  the Board  to "frame a scale of rates at which and a  statement of  the conditions  under which  any of the services specified"  in  the  section  shall  be  performed. Section 43 confers an identical power in the Board in regard to certain  other matters  while section 43-A authorises the Board to prescribe consolidated rates. Provision for framing bye-laws is made in Chapter XI called "Bye-Laws" and section 95  which  occurs  in  that  Chapter  mentions  the  various subjects on  which  the  Board  may  frame  bye-laws.  Under Chapter XI,  the Board  has no  power to  frame bye-laws for fixing scales  of rates  or a  statement of  the  conditions under which any of the services specified in sections 42, 43 and 43-A  shall be  performed. The  nearest that  section 95 touches the  subject of  rates is by clause (6) which refers to the 732

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mode of  the payment  of the  rates leviable under this Act. The Board having expressly empowered by section 42 to frame. I scale  of rates  and a  statement of  the conditions under which it shall perform the services specified in the section and the Board having in terms exercised that power under the aforesaid section,  there is  no justification for supposing that in  framing the  scale of  rates and  the statement  of conditions, the  Board has  purported to  frame  a  bye-law. What the  High Court  has done  is to  assume, in  the first place, that  the Board  has not exercised the power which it undoubtedly possesses  and which in fact and in terms it did exercise. The  High Court  then assumed  that the  Board had exercised the  power which it did not possess" a power which the Board  has not  even purported to exercise. Making these unfounded assumptions,  the High  Court invalidated  Rule 13 (b) on  the basis  that it was a bye-law and a bye-law could be  declared   ultra  vires   on  the   ground  that  it  is unreasonable. We  are unable to accept the High Court’s view that the  scale of  rates  prescribed  by  the  Board  under sections 42,  43 and  43-A consists,  as it were, of so many bye-laws or that Rule 13 is in the nature of a bye-law.      A bye-law  has been  said to  be an ordinance affecting the public.  Or some  portion of  the public, impose by same authority clothed  with statutory powers, ordering something to be  done or  not to  be done,  and  accompanied  by  some sanction or  penalty for  its non-observance.(1) The Board’s power  to   frame  the  scale  of  rates  and  statement  of conditions is not a regulatory power to order that something must be  done or  something may  not be  done. The rates and conditions govern  the basis of which the Board performs the services mentioned  in sections  42, 43  and 43-A. Those who desire to  avail of  the services of the Board are liable to pay for  those services  at prescribed  rates and to perform the conditions  framed in  that behalf by the Board. Indeed, some of  the  services  which  the  Board  may  perform  are optional and  if the importer desires to have the benefit of those  services,  he  has  to  pay  the  charges  prescribed therefore in  the Scale  of  Rates.  For  example,  any  one wanting to  use the Board’s premises for any of the purposes mentioned in  clauses (a) to (d) of section 43 would have to pay the  charges prescribed  by the Board for the use of its premises. Similarly  any one desiring to have the benefit of the Boards’s  services in  behalf of  cranage or  storage as specified in clauses (c) and (d) of section 42 shall have to pay for  these services at the prescribed rates. Whether the services are  from the  importer’s point of view optional in the sense that he may or may not require them or whether the importer has  no option  save to  avail himself of the basic services of  the Board  as for landing and keeping the goods in the transit area, the services have to be paid for at the scale of  rates prescribed  by the  Board. In  such matters, where services  arc offered by a public authority on payment of a price, conditions governing the offer and acceptance of services are  not in the nature of bye-laws. They reflect or represent an agreement between the parties, one offering its services at  prescribed rates  and the  other accepting  the services as those rates.      (1)See Halsbury’s  Laws of England, 3rd Ed. Vol. 24, p.      510, paragraph  940 citing  Kruce v.  Johnson [1898]  2      Q.B. 91 at p. 96. 733 As, generally,  in the  case of  bye-laws framed  by a local Authority, there  is in such cases no penal sanction for the observance of  the conditions  on  which  the  services  are offered and  accepted. If the services are not paid for, the

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Board can  exercise its  statutory lien  on the  goods under section 51  and enforce  that lien  under section  56 of the Act; or else, the Board may take recourse to the alternative remedy of a suit provided for by section 62.      With this,  the entire  reasoning of  the High Court on the first  aspect of  he matter must fall because Rule 13(b) has been declared ultra vires on the basis that it is a bye- law and,  as such,  it is arbitrary and unreasonable. But we would like  to point  out, since  the High  Court has  taken pains to  go into  the matter quite elaborately, that even a bye-law cannot  be declared  ultra vires  on the  ground  of unreasonableness merely  because the  court thinks  that  it goes further  than is  necessary or that it does not contain the necessary  qualifications or  exceptions.  In  Kruse  v. Johnson(1) a  question was  raised as  to the  validity of a bye-law made  by a  county  council  for  regulating  street music. I Lord Russell of Killowen observed  in that case .           "When the  Court is  called upon  to consider  the      bye-laws of  public representative  bodies clothed with      the ample authority which I have described, accompanied      by the  checks and safeguards which I have mentioned. I      think the  consideration of  such bye-laws  ought to be      approached from  a different  standpoint. They ought to      be supported if possible. They ought to be, as has been      said, benevolently  interpreted’ and credit ought to be      given to  those who  have to  administer them that they      will be reasonably administered." The learned Chief Justice said further that there may be           "dases in which it would be the duty, of the court      to condemn  by-laws made  under such authority as these      were made  (by a  county council)  as  invalid  because      unreasonable. But  unreasonable in what sense ? If, for      instance, they  were found to be partial and unequal in      their operation  as between  different classes; if they      were manifest  unjust; if  they disclosed bad faith; if      they   involved    such   oppressive    or   gratuitous      interference with  the rights  of those subject to them      as  could   find  no  justification  in  the  minds  of      reasonable men,  the court  might well say, ’Parliament      never intended  to give  authority to  make such rules;      they are  unreasonable and  ultra vires.’  But it is in      this and  this sense  only, as  I  conceive,  that  the      question  of  reasonableness  or  unreasonableness  can      properly be  regarded. A  bye-law is  not  unreasonable      merely because particular judges may think that it goes      further than  is prudent  or necessary or convenient or      because it  is not  accompanied by  an exception  which      some judges may think ought to be there."      (1) [1898] 2 Q.B, 91, at pp. 98. 99. 734 In  Slattery   v.  Naylor(1)   it  was  observed  that  when considering whether   a  bye-law is  reasonable or  not, the court need  a strong  case to  be made  out against  it, and decline to  determine whether  it would  have been  wiser or more prudent  to make  the bye-law  less absolute,  nor will they hold  that it  is unreasonable  because  considerations which the court would itself have regarded in framing such a bye-law have been overlooked or rejected by its framers. n      In the  first place, Port Trusts are bodies of a public representative  character   who   are   entrusted   by   the legislature with  authority to  frame a  scale of  rates and statement of  conditions subject  to which they shall or may perform certain  services. Port  Trusts are  not  commercial organisations which  carry on business for their own profit. Sections 39(1)  and (2)  of the  Act cast  on the  Board  an

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obligation,  according   to  its   powers,  to  provide  all reasonable facilities,  if so  required by  any  owner,  for various kinds  of services mentioned in clauses (a), (b) and (d) of  section 39(1),  which include  services in regard to landing of  goods between vessels and docks in possession of the Board and receiving, storing or delivering goods brought within the  Board’s premises.  The Board under section 39(3) shall, if required, take charge of the goods for the purpose of performing  the service.  After the  goods are thus taken charge of and a receipt given for them, no liability for any loss or  damage which may occur to the goods attaches to any person to  whom the  receipt has been given or to the master or owner  of the ship from which the goods have been landed. The responsibility of the Board for the loss, destruction or deterioration of  goods of  which it  has taken  charge  is, under section 40 of the Act, that of a bailee under sections 151, 152  and 161  of the  Contract Act,   subject  to  some modifications. Thus  rates which  the  Board  levies  are  a consolidated charge  for the various services it renders and the liability which it is compelled by statute to undertake.      The  Board   of  Trustees   is  a  representative  body consisting of  21 Trustees  out of  whom eleven are elected. The Collector  of Customs  the Municipal  Commissioner,  the General Managers  of Railways,  a representative each of the Mercantile Marine Department and the Defence Services of the Central Government,  and two  representatives of  labour are the other  members of  the Board.  Out of the eleven elected Trustees, one  is elected  by the  Municipal Corporation and the remaining  by provincial  or local  bodies  representing commercial interests. The Board of Trustees is thus a broad- based  body  representing  a  cross-section  of  variety  of interests. It  is the Board thus constituted that frames the Scale of  Rates and  Statement of Conditions under which the services shall  or may  be performed  by it. Every scale and every statement  of conditions framed by the Board has to be submitted to  the  Central  Government  for  sanction  under section 44  and it  is only when it is so sanctioned that it has the  force of  law. The  requirement of  sanction by the Central Government  is a  restraint on  unwise, excessive or arbitrary fixation  of rates.  Section 44(2)  confers on the Board the  power, in  special cases  and for  reasons to  be record-      (1) [1888] 13 App. Cas. 446, 452. 735 ed in writing, to remit the whole or any portion of rates or charges leviable  according to  any  scale  in  force  under section 44.  Thus, the  statute provides  for the  necessary safeguards,  checks  and  counter  checks  as  an  insurance against fixation and levy of harsh or unjust rates.      Section 109 of the Act provides that nothing in the Act shall affect  any power  vested  in  the  Chief  officer  of Customs under  any law  for the time being in force. Section 49 of  the Customs  Act, 1962 confers power on the Assistant Collector of  Customs, if he is satisfied on the application of the  importer that  the goods  cannot be cleared within a reasonable time,  to permit  that  the  goods  may,  pending clearance, be  stored in  a public  warehouse and if such a, facility is not available, then in a private warehouse. This provision together with section 44(2) of the Act constitutes a measure of mitigation. In face of these considerations, it is impossible  to characterise  the scheme  for the  levy of rates as arbitrary or unreasonable.      The High  Court contrasted  clause (b)  of Rule 13 with its clause (d) and held that there is no distinction between the two  classes of  cases and if cases falling under clause

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(a) are  wholly exempt  from the  payment of  demurrage,  so ought to  be those  falling under  clause (b).  The error of this conclusion  lies in equating cases falling under clause (b) with  those falling  under clause  (a). The  two clauses deal with  different sets  of cases:  clause (a)  deals with cases where  the goods  are detained  for examination  under sections 17(3)  and (4)  or for  chemical test under section 144  of  the  Customs  Act,  other  than  for  the  ordinary processes of appraisement; clause (b) deals with cases where the goods  are detained  on account  of Import Trade Control formalities or  for  compliance  of  formalities  prescribed under the  Drugs Act.  We  see  no  warrant  for  the  court substituting its  own view  as to the allowance of Free Days in a  technical matter  like the fixation of rates which has been considered  by an  expert Board  of Trustees  and whose decision has  been  confirmed  by  the  Central  Government. Equating the  two classes of cases dealt with by clauses (a) and (b)  of Rule  13 may seem to the court a more prudent or reasonable way  of fixing  scales of rates but that is not a correct test  for deciding  the  validity  of  the  impugned provision.      There is  a fundamental aspect of the fixation of rates which the  High Court has overlooked. What is the object and purpose of the rates which the Board charges to the importer ? Port  Trusts do  not do  the business of warehousing goods and the  rates which  the Board charges for storage of goods are not  levied as  a means of collecting revenue. The Board is under  a  statutory  obligation  to  render  services  of various kinds and those services have to be rendered not for the personal  benefit of  this or  that importer  but in the larger national  interests. Congestion  in the ports affects the free movement of ships and of essential goods. The scale of rates  has therefore to be framed  in a manner which will act both  as an  incentive  and  as  a  compulsion  for  the expeditious removal  of the  goods from  the  transit  area. Ships, like  wagons, have  to be  kept moving  and that  can happen only  if there  IS pressure on the importer to remove the goods from the Board’s pre- 736 mises with  the utmost  expedition. The  appellants in their reply statement filed in the High Court have referred to the Report of  the Committee  set up  in 1967 by the Ministry of Transport and  Shipping, Government  of India. The Committee consisted of  top-level experts,  one each from the Ports of New York,  London and Notterdam who made a general survey of the Ports  and Harbours  in India. The Committee observed in its Report: "To effect quick clearance of the cargo from the Harbour, the  demurrage rates  may be so fixed as to make it unprofitable for  importers to  use the  port premises  as a warehouse. "Viewed  from this  angle,  the  scale  of  rates cannot be characterised as unreasonable.      That takes  us to  the question  whether the  scale  of rates fixed by the Board is beyond the power conferred on it by section  42 of  the Act.  If section 42 were to authorise the Board to fix rates of ’Demurrage’. it might perhaps have been arguable  that the  Scale of Rates and the Statement of Conditions must  conform to the accepted meaning of the word ’Demurrage’. But  the statute  has placed no such limitation on the  power of  the Board  to fix the rates. By Section 42 power is  conferred on the Board to frame  "a scale of rates at which  and a  statement of the conditions under which any of the  services 1>  specified" in  the  section  "shall  be performed". And  the Board  has fixed the scale of rates and the statement  of conditions for the services it may have to perform. It  is difficult  to see  in what manner or respect

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the Board has exceeded its power under section 42.      The High Court seems to have thought that the Board had the limited  right to  fix rates  of demurrage and therefore rates could  only be  levied on goods which were not removed from the Board’s premises due to some fault or negligence on the part  of the  importer or his, agent. The High Court was probably misled  in this  conclusion  by  the  use  of  word ’demurrage’ in  clause (d) of section 42. But ’demurrage’ is surely not a service to be performed by the Board and is, on any view,  a charge leviable on goods. Clauses (a) lo (d) of section 42  refer to  various services like transshipment of passengers and  goods, landing and shipment of passengers or goods, cranage or porterage of goods and wharfage or storage of goods.  It is  these services in respect of which section 42   authorises the  Board to frame a scale of rates and the statement of  conditions. The  circumstances that  the Board has used the expression ’Demurrage’ as a heading for Chapter IV of the Scale of Rates or that it has used that expression in Rules  13(b) and  (c) cannot  constitute a  fetter on its powers to  fix the  rates. The  validity of  the exercise of that power  has to  be judged  on the language of section 42 which is the source of the power.      The High  Court has  cited many  texts and dictionaries bearing on  the meaning  of ’Demurrage’  but these  have  no relevance for  the reason  that demurrage being a charge and not a  service, the  power of  the Board  is not  limited to fixing rates  of demurrage.  Besides, it  is plain  that the Board has  used the expression ’Demurrage’ not in the strict mercantile sense  but merely  to signify- a charge which may be levied  on goods  after the  expiration of Free Days Rule 13(b) itself 737 furnishes a  clue to  the  sense  in  which  the  expression ’demurrage’ is  used by  the Board. It provides, inter alia, that "demurrage"  shall be  recovered at a concessional rate for a  period of  thirty days plus one working day where the goods are  detained for  compliance with certain formalities and where  the Collector  of  Customs  certifies  that  tile detention of  goods is  "not attributable  to any  fault  or negligence on the part of Importers".      The High  Court was  therefore in  error in holding the scale of rates fixed by the Board as ultra vires and void on the grounds that it is unreasonable and that it is in excess of the power conferred by section 42 of the Act.      The only question which now remains to be considered is whether the  respondents are  liable to  pay  the  demurrage demanded of  them by  the appellants.  The appellants’ claim against respondents 2 and 3 has no foundation in law and was rightly not pressed by the appellants’ counsel. Respondent 3 is the  Collector of Customs who, obviously., cannot be made personally liable  to pay the demurrage. Respondent 2 is the Union  of   India  against   whom  and   respondent  3.  the appellant’s claim  is said to reside partly in the region of "contract or quasi-contract". We are unable to spell out any such basis  on which the claim of the appellants could rest. The issuance  of an incorrect ’Detention Certificate’ by the 3rd respondent cannot also help the appellants to fasten the liability for demurrage on respondents 2 and 3 on the ground of their  negligence. As observed by the High Court, all the relevant facts  were before  the appellants  who could, with reasonable care,  have avoided the consequences flowing from the Certificate issued by the 3rd respondent.      As  regards  the  appellants’  claim  against  the  1st respondent, the  High Court  was prepared to hold the latter liable to  pay the  demur rage  except for the fact that the

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scale of  rates was unreasonable and beyond the power of the Board. As  we have  set aside  the High  Court’s findings on those  points,  it  has  to  be  examined  whether  the  1st respondent is  liable to  pay the  demurrage. Unfortunately, parties fought  in the High Court a legal battle and gave no importance to  facts on  which  the  liability  of  the  1st respondent may  be said  to rest. Facts must come before the law for,  legal principles cannot be applied in a vacuum. No oral evidence  was  led  by  the  parties  and  we  find  it difficult on  a  mere  Perusal  of  documents  to  say  that respondent 1 ought to be held liable to meet the appellants’ claim. Documents  do not  prove themselves nor indeed is the admissibility of  a document proof by itself of the truth of its contents. Import Licence No. CL/ 53/3/02105-1 dated June 16, 1962  under which  the goods  were imported stood in the name of the State Trading Corporation of India. It issued an authorization in  favour of the 1st respondent which, as the documents go,  was liable  to deliver the consignment to the nominees of  the Corporation.  The 1st  respondent. it would appear, was  only entitled  to charge  a commission  for the work done  by it in pursuance of the authorisation issued by the Corporation.  The 1st  respondent had  no  title  to  or interest in the goods except to deliver them 738 in accordance  with the  instructions of the Corporation. If the appellants  were to  enforce their  statutory lien,  the incidence  of   the  demurrage  would  have  fallen  on  the Corporation in  whom the  title to the goods was vested. The appellants permitted  the goods  to be  cleared without then demanding the  demurrage which  they claimed  later, thereby depriving the 1st respondent of an opportunity to reject the goods  as  against  the  supplier  unless,  of  course,  the Corporation was  within to  accept them  and along with them the liability  for the  payment of demurrage. In the absence of any  more facts we find it impossible on the record as it stands, to  accept the  appellants’ claim  against  the  1st respondent. Out  of 15  issues framed  in the suit, issues 1 and 10  only pertain  to the liability of the 1st respondent and on  those issues, the facts appearing; on the record are too scanty  to support the appellants’ claim against the 1st respondent. We.,  therefore, hold that the claim against the 1st respondent must also fail      In the  result, we confirm the decree of the High Court dismissing  the   appellants’  suit,   though  for  entirely different reasons.  In the  circumstances, there  will be no order as to costs. P.H.P.                                    Appeal dismissed . 739