9911796707
TMI Blog1968 (12) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... king or continuing any proceeding in pursuance of the said notices or giving any effect to the said notices or from giving any effect to any order that may be made on the said notices; issue of a writ of or in the nature of Mandamus commanding the respondents and each of them to restore and return to the petitioners the typewriters and the calculating machines seized from them and obtained by the respondents and to remove the seals placed on the machines lying at the petitioner No. 1's shop window and to return to the petitioners the documents seized from the petitioners. Between 1961 and 1965 the petitioners acquired possession of about 200 typewriters, adding and calculating machines, all of foreign make. The modus operandi of the petitioners in acquiring the said goods were as follows : The petitioners used to contact Indian crew of sea-going vessels. The petitioners requested the said crew to purchase goods in foreign countries as per instructions of the petitioners out of the money to be obtained by the said crew on account of their salary. The said crew would bring back the said goods to Calcutta at the time of their return and would clear the said goods from the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said rule nisi and the petition. The petitioners have filed their affidavit-in-reply. The matter has now come up before me for final hearing. Two questions fall to be considered by me in the instant application. They are : (1) could the Collector of Customs extend the time as he had purported to do under the proviso to sub-section (2), of section 110 of the Customs Act, 1962, without hearing the petitioner ? (2) Is the said order extending the period under the said proviso valid or binding inasmuch as the same was not served upon the petitioners within a period of six months of the seizure of the said goods ? 5. For the aforesaid purposes, we have to consider section 110 of the Customs Act, 1962, and especially the proviso to sub-section (2) of the said section. Section 110 of the Customs Act, 1962, provides as follows: (1) If the proper officer has reason to believe that any goods are liable to confiscation under this Act, he may seize such goods :Provided that where it is not practicable to seize any such goods, the proper officer may serve on the owner of the goods an order that he shall not remove, part with, or otherwise deal with the goods except with the previous p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompleted the enquiry or not completed the report of the enquiry (on this point there is. considerable conflict of evidence), and therefore an application is said to have been informally by way of a note given by some officers or others and placed before the Additional Collector of Customs and he merely endorsed his approval. In the present case, even if the first extension on the 18th September, 1963, was justified, the ex parte order made on 20th February, 1964 cannot be justified. Notice under section 124 must be given within six months of the seizure of the goods. If it is not so given then the goods have to be returned. Upon the expiry of the six months, or any extended time under the proviso, a right for the return of the goods vests in the person from whose possession they were seized * * * *. The actual order for extension was made nearly a month afterwards. By such extension, the vested right was being taken away. So, we have two things to consider. Firstly, a vested right was being taken away and secondly, an order can be made under the proviso to subsection (2) only if there was sufficient cause shown for such extension. If the Collector of Customs has to consider wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gy used, the nature of the power conferred or the duty imposed on the authority and other indicia afforded by the statute. In short a duty to act judicially may arise in widely different circumstances and does not possibly or advisedly lay down a hard and fast rule or an inexorable rule of guidance. 10. Now what is the phraseology used by the legislature in the said section and in particular in the said proviso to sub-section (3) of the said section ? The legislature has laid down that the said period of six months on sufficient cause being shown may be extended by the Collector of Customs, In the case of (5) Hubli Electricity Co. v. Province of Bombay, AIR 1949 PC 136, section 4(1) of the Indian Electricity Act, 1910, came to be considered by their lordships of the Judicial Committee of the Privy Council. The said section provides as follows: The Provincial Government may, if in its opinion the public interest so requires, revoke a licence in the following cases namely (a) where the licensee in the opinion of the Provincial Government makes wilful and unreasonably prolonged default * * * *. 11. It was held by the Judicial Committee that there was nothing in the said sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ex parte. 12. I have underlined the relevant passage in the judgment quoted above. In my opinion in passing the said order of extensions ex-parte behind the back of the petitioners and without hearing them, the respondents violated the principles of natural justice. Therefore the said order must be held to be bad. In the case of (6) Upendralal v. Smt. Nominee Devi Jha, reported in AIR 1968 M. P. 89, paragraphs 31 32, it was held that power under proviso to section 110(2) of the said Act is merely administrative and is not based on any reasoning. With the greatest respect to the learned Judges I am unable to agree. 13. The said purported order extending the aforesaid period of six months on 3rd November, 1966 was not communicated to or served upon the petitioners until December 16, 1966. In the case of (7) Nripendra Nath Mazumdar v. N. M. Bardhan and others, reported in AIR 1959 Cal 219, it was held that where an order is made which affects the rights of a person the order must be communicated to such person in order to make it complete and effective. The date of the order is the date on which it is made known to the affected party. In the instant case the said order dated 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
