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TMI Blog1966 (11) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... otification of the 1st June, 1951. reached Sealdah. The petitioner did not get in touch with the authorities at Sealdah and on the 16th July, 1951, made another application to the Land Customs at Naihati for a permit to export the same quantity of adminium to Mymonsingh. The Naihati authorities gave the requiste permission as they were not aware of the 1st June notification The petitioner thereupon exported aluminium to Eastern Pakistan 2. On the 31st August, 1951, the Collector of Central Excise and Land Customs gave a notice to the petitioner alleging that the petitioner had exported the said consignment of aluminium in violation of the notification of the 1st June, 1951. In this notice it was alleged (a) that the Land Customs Officer refused to pass the goods under an Open General Licence; (b) that the Railways had cancelled the wagon which was allotted to the petitioner; (c) that the petitioner came to know that the instructions restrict line the export of aluminium ware had not till then reached the Naithatl Land Customs Station; (d) that in order to defeat the export trade control restrictions the petitioner speedily transported the consignment by a lorry to the Naithati L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the nature of a Writ of Mandamus should not be made by this Court directing the said respondents to forbear from giving effect to the said order dated the twelfth day of December one thousand nine hundred and fifty one and also why the same should not be rescinded or cancelled and/or why further orders or directions should not be made by this Court as it thinks fit and proper......... 5. This application was heard by Sinha, J. (as he then was). On the 25th November, 1953. Sinha J discharged the Rule principally on the ground that the Collector if Customs was not a judicial or quasi judicial body and acted purely in a ministerial capacity. There was. therefore, no question of any hearing before the Collector or observance by the Collector of the principles it natural justice. 6. Before we proceed any further it is worth-while reminding ourselves of the principles governing the issue of a Writ of Certiorari These principle? are as follows: 1. A Writ of Certiorari can be issued for correcting an error of jurisdiction e.g where inferioi Courts or Tribunals have passed orders either (a) without jurisdiction: or (b) in excess of Jurisdiction: or (c) as a result of failure t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been challenged in these proceedings would not affect that order at ill. 9. The question vigorously argued on behalf of the appellant, is whether sufficient opportunities were given to the appellant to represent its case before the Customs Authorities Mr Kar wanted to urge that this question cannot be agitated at all in the present appeal inasmuch as at the relevant time the Collector of Customs was only an executive or administrative Officer and there was no obligation on him to act in a judicial or quasi-judicial manner. The order of adjudication in the present case was passed on the 12th December, 1951. We have, therefore, to consider according to Mr. Kar, what was the existing law on that date. An indication of that law can be found in the case of Maqbool Hussain v. State of Bombay . The Supreme Court, says Mr. Kar, held in that case that the customs authorities were not judicial tribunals. Up to that date, therefore, the law of the land was that the order which the customs authorities used to pass under Section 167 of tilt 6ea Customs Act, was an administrative order and not a judicial or qusi judicial order. A Writ of Certiorari, therefore, does not lie in this case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by this Court was in the negative. 11. It is against this background that Maqbool Hussain's case, has to be understood by the High Courts. The decision cannot be considered to be a decision that the customs authorities were not quasi judicial tribunals. The Supreme Court in Indo China Steam Navigation Co.'s case, proceeds to observe as follows: ''It is true that in giving this answer (that is the answer in the negative), his court has observed that the customs officers are not required to act judicially on legal evidence tendered on oath and they were not authorised to administer the oath to any witness. The appeals, if any, He before the Chief Customs Authority which is the Central Board of Revenue and the power of revision is conferred on the Central Government which certainly was not a judicial authority-It would be noticed that the last observation is purely in the nature of an obiter observation because the status of the Central Board of Revenue or the Central Government in dealing with appeals or revision applications under Sections 190 and 191 of the Act did not fall to be considered in that case, was not argued and naturally had not been examined; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... customs authorities in such cases could not be assailed in a proceeding under Article 226 of the Constitution. 15. By July, 1953, therefore, there were two conflicting decisions of our Appellate Courts -- one in Soorajmull Nagarmal's case, and the other in Shewpujanrai's case. A. F. O O. No. 7 of 1953 D/- 3-7-1953 (Cal). Sinha. J. in Bimalananda Singh v. Collector of Central Excise, Matter No. 2 of 1953 (Cal) was faced with this conflict and was about to refer the matter to a larger Bench This is what Sinha, J said: It will be observed that the point for decision in Maqbool Hussain's case, was whether the customs authorities constituted a Court for the purpose of Article 20(2) of the Constitution. The question remains as to whether it was by implication decided that they did not constitute even a quasi judicial body bound by the principles of natural justice. This aspect of the question came to be considered in the unreported case of A. F. O. O. No. 7 of 1953 D/- 3-7-1953 (Cal) ............... 16. After quoting Das, J.'s views, : have already referred to, Sinha, J. says: If the matter rested there, I should have to refer it to a larger Bench to decid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of such order under Article 226 of the Constitution. In expressing this conclusion, S.K. Das. J. who spoke for the Court, has referred to two earlier decisions where this point had been considered and it was held that In holding his proceedings under the Sea Customs Act. the Collector acts judicially, vide and Leo Roy Frey v. Supdt. District Jail, Amritsar . Similarly, in Thomas Dana v. State of Punjab this Court has observed that the Collector and other Officers in the hierarchy mentioned by the Sea Customs Act may have to act judicially in the sense of having to consider evidence and hear arguments in an informal way: even so, the Act does not contemplate that in doing so, the said authorities are functioning as a Court 21. The position, therefore, appears to be that the law has always been that the customs officers and other authorities specified in the said statute act in a quasi judicial capacity and must observe the principles of natural justice. In Maqbool Hussain's case, the Supreme Court merely decided that the customs authorities were not a Court or Tribunal for the purpose of Article 20(2) of the Constitution. The Supreme Court did not decide that they were no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g dealt with. 3. A domestic tribunal is under a duty to act in good faith, and to listen fairly to both sides. It has no power to administer an oath and need not examine witnesses. It could obtain information in any way it thought best, always giving a fair opportunity to those who are parties to the controversy to correct or contradict any relevant statement prejudicial to them. In other words, the person accused should know the nature of the accusation made; and should be given an opportunity to state his case. If any reliance is placed on evidence or record against a person, then that evidence or record must be placed before him for information, comment and criticism No natural justice requires that there should be a kind of formal cross-examination. Formal cross-examination is procedural justice It is governed by rules of evidence. It is the creation of courts and not a part of natural justice but of legal and statutory justice. The only obligation which the law casts on a domestic tribunal is that 'they should not act on any information which they may receive unless they Put it to the party against whom it is used and give him a fair opportunity' to explain It. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on behalf of the respondents that the application of the principles of natural justice presents no difficulty. A show cause-notice was given to the appellant. In that notice the charge against the appellant was clearly stated; the evidence on which the charging officer relies, has also been mentioned; and the appellant was called upon to explain its conduct. The appellant did not ask for a personal hearing before or a personal interview with the Collector of Central Excise and Land Customs. The appellant never wanted to inspect any records or documents in the possession of the Land Customs Authorities. It came forward with a written reply and the only material point in that reply was that the appellant was not aware of the notification of the 1st June, 1951. When the goods were booked at Naihati for Eastern Pakistan. 25. The explanation, argues learned Counsel for the respondents, which hiP appellant gave, was of no substance. The notification was duly published in the Gazette in the manner prescribed by law It became the law of the land as soon as it was published. And ignorance of the law could never be an excuse which any Court or tribunal would entertain in that ryent, anyo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive or administrative bodies, we naturally have to examine closely the fact of this case for a proper appreciation of the appellants' grievance that it did not have adequate opportunities of representing its case. 30. While discussing the broad principles of natural justice we have stated inter alia, that one of the essential requisites is that the enquiring officer may obtain information from whichever source he likes; but if he relies on any evidence or record against any person, then that evidence or record must be placed before that person for information, comment and criticism. 31. In the instant appeal we have to see whether this particular principle has been adhered to. 32. The show cause notice in this case has been signed For Collector of Central Excise and Land Customs Calcutta : vide page 19 of the Paper Book. The final order imposing the penalty appears to be the order of J.W. Orr, the then Collector of Central Excise and Land Customs, Calcutta (see page 14 of the Papar Book). In paragraph 6 (at page 30) of the affidavit of Satchitananda Banerjee, the Superintendent, Land Customs Central Preventive Circle, Calcutta, affirmed on the 16th June, 1953, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations thereto. 38. What I have said uptill now is further justified by J.W. Orr's own statements in paragraph 3 of his affidavit-in-opposition affirmed on the 30th June, 1953. In this paragraph he says: On or about the 20th November, 1951, the above case of the petitioners was placed before me for adjudication. Prior thereto I have had nothing to do with the case. I went through the connected papers relating to the case and the explanation given by the petitioners. I carefully considered all the facts and circumstances of the case and I arrived at certain conclusions which are stated in my order dated the 12th December, 1951. The petitioner did not ask for hearing and it did not appear that it was necessary to hear them. I made my order dated the 12th December, 1951 bona fide and honestly and to the best of my ability and conviction 39. It is true that the petitioner did not ask for personal hearing and, as such, no duty was cast on the Collector to offer a personal interview. It is also correct that the Collector acted bona fide and honestly. We have not heard anything to the contrary in this appeal. But the point is that he himself says that there were 'conne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertain recognised principles which are invariably followed to establish a person's guilt. It is this invariable practice which the rules of natural justice are concerned with. These aspects of the matter, the learned Trial Judge had no occasion, to consider in this case as the principal point before the trial court was whether the Collector of Customs was an administrative or a quasi-judicial authority. 41. We have cited many of the relevant authorities on this question already; but there is one case which appears to be similar to ours and, I think, that case should be specially mentioned, I mean the decision of this Court in Dullchand v. Collector of Central Excise In this case, the order of confiscation of seized betelnuts passed against the petitioner by the Collector of Central Excise and Land Customs under section 167 (8) (Sea Customs Act) was quashed in a proceeding for a Writ of Certiorari on the ground of violation of the rules of natural justice. The petitioner was not given an opportunity to explain the reports of experts regarding quality, nature and origin of the betelnute on which the order was based. Sinha, J. was of the view that since the charges were that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in his car, he could not properly be described as a person concerned in an offence under item 8, and that by the mere physical act of transport without knowledge on the part of the person concerned of the presence of the offending article, the person cannot be said to have imported or exported the article contrary to any prohibition or restriction. But on the findings in this case the question does not arise (Nor do I see much relevance in the citations of the three English cases ......... with regard to an offence similar to that under item No 81 under section 167 o f the Sea Customs Act in determinine what mens rea if any is required for an offence under item No. 8) . 46. This is only an obiter dictum of the Kerala High Court on the language used in the third column of item No. 8 in section 167 of the Sea Customs Act, namely, such Roods shall be liable to confiscation; any person concerned in any such offence shall be liable to a penalty not exceeding three times the value of the goods, or not exceeding one thousand rupees . It should also be observed that Item No. 81 of Section 167 (which has been Introduced later) uses the word 'knowingly' which ii not to be foun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceed on the footing that the element of mena rea is at any rate a relevant factor to be taken into consideration in an offence alleged to have been committed under item (8) of section 167. This principle the customs authorities must bear in mind in investigations carried on by them. 48. The next contention of Mr. G. P. Kar, learned Counsel for the respondents, is that this petition should be thrown put in limine, as the petitioner has not specified in the prayers in the petition, the Writs which are asked for. The petitioner cannot leave to this Court the burden of finding the appropriate writs. Mr. Kar refers to order 7 Rule 7 of the Code of Civil Procedure which provides that every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for and the same rule shall apply to any relief claimed by the defendant in his Written Statement. Mr. Kar also refers to Rule 8 of Chapter VII of the Original Side Rules which provides, inter alia, that pleadings shall include pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee Krishna Metal Manufacturing Co., Bhandara an appeal was preferred against a decision of the Bombay High Court. In the prayers of the petition only an appropriate writ was asked for to restrain the Regional Provident Fund Commissioner from enforcing certain provisions of the Employees' provident Funds Act, 1952, against the petitioner. The Bombay High Court allowed the writ petition and an appropriate writ was issued. The Regional Provident Fund Commissioner went to the Supreme Court with the High Court's Certificate. The Supreme Court dismissed the appeal. 51. In view of these authorities we are unable to accede to the contention of learned counsel for the respondents that this appeal be dismissed on the ground of defects in the petition. We have also to point out that before the learned Trial Judge no obiection on this ground was taken 52. The next point of the respondents is that the petitioner had alternative remedies under the Sea Customs Act by way of appeals to higher authorities and, as such, this application under Article 226 should have been refused. In answer to this point as well certain relevant authorities have to be relied on. In British India Steam N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 1964 Two years later in M. G Abrol v. Shantilal Chhotelal Co., Subbarao. J., as he then was. delivering the majority iudgment observed in a paragraph 15 at P 202 as follows: - Lastly, it was argued that the High Court should not have exercised its jurisdiction under Article 226 of the Constitution, as the respondents had an effective remedy by way of appeal to higher customs authorities But the High Court rightly pointed out that the respondents had no effective remedy for they could not file an appeal without depositing as a condition precedent the large amount of penalty imposed on them (under Section 189 of the Sea Customs Act, 1878, the owner of the goods if desirous of preferring an appeal must deposit in the hand-- of the Customs Collector the amount demanded by him as duty or penalty) That apart 'the existence of an effective remedy does not oust the jurisdiction of the High Court, but it is only one of the circumstances' that the High Court should take into consideration in exercising its discretionary jurisdiction under Article 226 of the Constitution In this case, the High Court thought fit to exercise its jurisdiction under Article 226 of the Constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lordship. We would not be justified, therefore, in disallowing this appeal on the ground that there is an alleged alternative remedy 59. Before I conclude, it is in the fitness of things, that we should express our gratitude to Mr. Sachin Roy, Barrlster-at-Law who has argued this case on the third day of the hearine on behalf of the respondents in the absence of Mr. G. P. Kar with remarkable ability. Our attention was drawn to most of the relevant authorities in support of the respondents' case and we received considerable assistance from him. 60. The only other outstanding point is the order that we ought to make on this application We have to remember the observations of the Supreme Court in AIR 1964 SC 111. In paragraph 22 of the judgment at p. 118 Gajendragadkar, J. (as he then was) has stated: In writ proceedings if an error of law apparent on the face of the record is disclosed and a writ is issued, the usual course to adopt is to correct the error and send the case back to Special Tribunal for its decision in accordance with law. It would, we think, be inappropriate for the High Court exercising its writ jurisdiction to consider the evidence for itself and rea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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