2021 (4) TMI 603 - HC - Customs

Seeking Mandamus forbearing the respondents i.e. the Commissioner and Assistant Commissioner of the Customs Department/R1 R2 as well as the Regional Manager of the MSTC Limited, Chennai/R3 from auctioning and selling the property - HELD THAT - An order has been passed on 29.03.2021. The order is to the effect that 50% of the property does vests with the petitioner and his wife and the auction proposed is only in regard to the remaining portion that vests with the petitioner's brother and his wife. With this, the Mandamus sought for is achieved and the writ petition is disposed recording the aforesaid submissions and confirmation of the learned Counsel for R1 R2. Learned counsel for the petitioner at this juncture refers to the Customs (Attachment of property of Defaulters for Recovery of Government Dues) Rules, 1995 stating that where the property is jointly owned by the defaulters along with a third party, the same can only be attached to the extent of the defaulters' share and in any event, cannot be alienated. Let the aforesaid submission be putforth to the Customs authorities for their consideration, prior to proceeding with the proclamation, if at all. Petition closed.

Summary

Issues:
1. Mandamus sought to prevent auction of jointly owned property.
2. Determination of ownership of the property.
3. Application of Customs rules on attachment of property.

Analysis:
1. The petitioners sought a Mandamus to prevent the auction of a property jointly owned by them and others. The High Court ordered the petitioners to appear before the Assistant Commissioner of Customs to determine the ownership of the property. The Court directed that coercive steps should not be taken until ownership is established, and the petitioners were given a hearing opportunity before any decision was made.

2. Subsequently, after hearing all concerned parties, an order was passed on 29.03.2021. The order clarified that 50% of the property belonged to the petitioners and their wife, while the auction was proposed only for the portion owned by the petitioner's brother and his wife. The Mandamus sought by the petitioners was considered achieved based on this order, and the writ petition was disposed of, acknowledging the submissions made by the Counsel for the Customs Department.

3. The counsel for the petitioners referred to the Customs (Attachment of property of Defaulters for Recovery of Government Dues) Rules, 1995, highlighting that in cases where property is jointly owned by defaulters and a third party, only the defaulters' share can be attached, and the property cannot be alienated beyond that share. The Court directed that this submission be presented to the Customs authorities for their consideration before proceeding with any further actions related to the proclamation of sale.

In conclusion, the High Court's judgment focused on determining the ownership of the jointly owned property, ensuring that the auction only pertained to the share of the defaulting party, and emphasizing compliance with the relevant Customs rules on the attachment of property in cases of defaulters. The Court's intervention aimed to protect the rights of all parties involved and ensure a fair and lawful resolution to the dispute.