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TMI Blog1989 (9) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner, failing which give the petitioner equivalent compatible items as contained therein and/or money to purchase the same, in the peculiar facts of this case? 2. The basic facts in the case are admitted. The petitioner, and Indian citizen, is a qualified architect. He studied and worked abroad for a number of years and returned to India on 21st March, 1986 on a transfer of residence intending to permanently settle here. On arrival at Palam Airport, Delhi, he claimed and was granted the benefits of Transfer of Residence under the Transfer of Residence Rules, 1978 (hereinafter referred to as the Residence Rules). Subsequently, certain other personal and household effects belonging to the petitioner arrived in Delhi and on 20th August, 1986 he again claimed and was allowed the benefit under Rule 2 of the Transfer Rules. 3. Before returning to India, the petitioner had purchased a personal computer on 25th August, 1985. The said computer arrived at Palam Airport in three packets on 19th July, 1986. The Petitioner was informed about the arrival of the computer on 21st July, 1986. On 25th July, 1986 the petitioner claimed transfer of residence benefit under Rule 4 of the Reside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the said packet and give the petitioner inspection of all the three packets on 12th January, 1988. On 14th January, 1988 counsel for respondent No. 6 prayed for further time to trace out the third packet. On 25th January, 1988, Ms. Suman Garg, Legal Officer of respondent No. 6 appeared and said that the petitioner had been granted inspection of two packets on 15th January, 1988, but the third packet was still not traceable and efforts to find it were being made. On 3rd February, 1988, Ms. Garg again appeared and stated that the third packet was still not traceable but efforts to find it were continuing. On 25th February, 1988, Mr. Mehta, Cargo Superintendent of respondent No. 6 appeared and stated that the third packet had not yet been traced and an information had been lodged with the police in January, 1988. However, he added that respondent No. 6 was still hopeful of finding the packet. 8. The petitioner informed the Court that his professional work was being hampered and he needed the computer for his work. He stated that the missing packet contained the printers etc. and consequently if he was given the two packets, that were with respondent No. 6, he could carry out his w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed another affidavit setting out the order of the Chairman of respondent No. 6 granting waiver of 80 per cent of demurrage charges only. The order reads as follows : "Considered. 80% of demurrage charges be waived as this is a T.R. appeal case. 100% has been waived on the untraceable package. Untraceability of one package is no ground for waiver of 100% on other packages. IAAI is entitled for charges for keeping goods in custody and incurring expenses thereon." 15. In view of the said affidavit, counsel for the petitioner said that he did not wish to file a reply to C.M. 354/89 and consequently, we permitted the amendments as prayed for, to be made so that the position as on 10th August, 1988 is correctly recorded. 16. The main contention of Mr. M.L. Verma, learned counsel for the petitioner was that on a clear reading of the statute, rules and regulations, demurrage is not chargeable on "baggage". In the alternative he argued that even assuming that demurrage is chargeable, then this was a fit and deserving case for the Chairman to have waived the demurrage charges wholly. 17. Mr. Aruneshwar Gupta, learned counsel for respondent No. 6, however, contended that on a true ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y under Section 81(b) read with Section 152. In this public notice which deals with godown rent and other charges in respect of detained packages, air cargo and all other goods, it is clearly specified at item 7 that "no godown rent will be charged for the period for which the delay was on account of customs". Item 9 reads as follows: "The Assistant Collector of Customs in bona fide case of hardship may waive godown rent for storage upto 2 months, the Deputy Collector upto 6 months and additional Collector or Collector for any period provided they are satisfied that the importer/passenger could not clear the articles for reasons beyond his control. Application for the waiver shall be made by the Importer/Passenger in writing." 22. Another Customs Public Notice being notice No. 30/86 was issued by the Collector of Customs on 30th April, 1986. It provided, inter alia, that the specific limits of the Customs Area were the whole of the "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 Central Warehousing Corpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t General Manager by issue of directive specifying the circumstances and the limits upto which financial powers for waiver of charges would be exercised." 27. Regulation 8 provides for care of cargo and while dealing with import cargo says : "Cargo will be stored in the International Air Cargo Complex under the control and supervision of Customs authorities". The Authority will be "The custodian of the import cargo delivered to it" by the carriers. 28. As above indicated, by virtue of Regulation 2(b) "mail stores and baggages" have been excluded from the ambit of cargo. But baggage has not been defined separately in the Regulations 1980 nor in the International Airports Authority Act, 1971. 29. From a plain reading of the various provisions above indicated, it is clear that the International Airports Authority of India is the custodian of the goods as appointed by the Customs authorities under Section 45 of the Customs Act, 1962. Further, since demurrage is chargeable on cargo and "cargo" has been specifically defined to exclude baggage, by the abovementioned Regulations 1980 issued by the International Airports Authority of India, demurrage is not chargeable on baggage. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fines baggage says it includes unaccompanied baggage, but not motor vehicles. Mr. Gupta also contended that if it is held that there is no provision made by the International Airports Authority of India for charging demurrage on baggage then respondent No. 6 is entitled not to deliver the goods until storage charges are paid as expenditure has been incurred and services rendered for storing the goods. This contention is not tenable in the facts of this case. 35. Section 17(i)(c) of the International Airports Authority Act permits the International Airports Authority of India with the previous approval of the Central Government, to charge fees or rents "for the use and enjoyment by persons of facilities and other services provided by the Authority at any airport, heliport or airstrip". This section permits the International Airports Authority of India to charge fees or rent for such use and enjoyment. But the International Airports Authority of India has made the Regulations 1980 under Section 37(1) of the International Airports Authority Act, 1971 and has excluded baggages, stores and mails from the definition of cargo in Regulation 2(b) and has only made provision for charging d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chapter VIII provides that the provisions of this Chapter shall not apply to (a) baggage, (b) goods imported by post, and (c) stores. Reading the Customs Act with International Airports Authority Act and Regulations 1980 etc., it is clear that the International Airports Authority of India has clearly not made any provision for charging demurrage under its Act and Regulations on baggages. 40. In any case in the facts and circumstances of this case, it is apparent that the goods had been detained on 25th July, 1986 by the Customs Authorities and the International Airports Authority of India is holding the goods as their custodian in the Customs area. 41. The alternate argument of Mr. Verma is that even if demurrage is chargeable on baggage from the petitioner, in view of the peculiar facts of the case and the delay having occurred for no fault of the petitioner and since "one of the three" packets containing the entire computer is untraced, the Chairman of the International Airports Authority of India should have wholly waived the demurrage. 42. There is no dispute that the Chairman has power under Regulation 6(1) to waive hundred per cent of the demurrage in deserving cases. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r instructing any official of Respondent No. 6 to retain the said computer in the warehouse." 44. Respondent No. 5 is the Assistant Collector of Customs, U.A.B. Unit, Cargo Terminal, Indira Gandhi International Airport, New Delhi. No affidavit in reply to the writ petition has been filed by Respondents 1 to 5. Respondent No. 6 filed an affidavit affirmed by Mr. D.R. Vermani, Assistant Director, Cargo on 5th October, 1987 and denied the averments made in Paragraph 7. However, he submitted that "Respondent No. 6 is a custodian within the meaning and for the purposes of Section 45 of the Customs Act, 1962 and keeps the goods in its cargo complex". 45. The petitioner filed a rejoinder-affidavit on 8th January, 1988. He reiterated the averments made in Paragraph 7 of the petition and further averred in Paragraph 8 of the said affidavit that he had "learnt to his dismay that one of the three packets in which the computer was imported is untraceable". 46. What happened thereafter has been set out above resulting in the order dated 25th February, 1988 directing Respondent No. 6 to release the two packets available with them, to the petitioner without payment of handling charges and/o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods lost by the petitioner". He also asserted that "due and proper care for the goods of the petitioner as a prudent person" had been taken as indicated in his earlier affidavit dated 30th March, 1988. On 28th September, 1988, Respondent No. 6 filed another affidavit affirmed again by Mr. D.R. Vermani on 27th September, 1988, giving details of security staff etc. in order to try and establish that due and proper care of the goods of the petitioner had been taken. 50. From the admitted facts it is apparent that all three packets containing the petitioner's computer arrived in India on 19th July, 1986 and were intact but were not released by the Customs and were in the custody of the International Airports Authority of India. On 25th May, 1987 the present writ petition was filed. It was only on 21st December, 1987 that it was noticed that one of the three packets was found to be not traceable. This occurred while the writ petition was pending in Court and, consequently, we are of the opinion that the subsequent facts can be taken note of and the relief moulded accordingly. 51. Mr. Gupta strenuously submitted that a mandamus to trace out the packet and if not traceable to r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fully given effect to. It found that the Customs and its approved custodian were statutorily liable to account for the goods. After noticing Section 45 of the Customs Act, 1962 and other provisions it opined that : "In view of these provisions in the Act, there can be little scope to dispute that until the goods are cleared for home consumption, the scheme of the Act requires the goods to remain in the hands of the Customs authorities and obviously the statutory liability to account for the goods would be of the authorities under the Act charged with the responsibility of keeping the goods." 55. Mr. Justice Ranganath Mishra speaking for himself and Chief Justice R.S. Pathak observed that they agreed with the conclusion of Mr. Justice B.C. Ray that the Customs Authorities were "liable for the loss or damage to the goods". However, they did not concur with the conclusion of Mr. Justice B.C. Ray that "under no circumstances can the Board of Trustees" (Calcutta Port Trust) be held responsible for the loss or destruction of the imported goods; nor did they endorse the direction given that the appellant may take appropriate proceedings for determination of the damages (money value o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ector, Customs and were again detained/retained by the Customs authorities; that the packet lost contained Epson and Brother printers and connecting cables etc.; that the printers etc. were part of the three packets containing the computer; that this packet though admittedly in the custody of Respondent No. 6 is not traceable; that the date of non-traceability as mentioned in the letter of International Airports Authority of India to lodge a F.I.R. is 21st December, 1987; that the packet became untraceable while the matter was pending in this Court, but after the Central Government's order dated 10th November, 1987, thereby partly frustrating that order; that the models of the printers as imported by the petitioner are not available and the nearest equivalents compatible with the computer cost approximately Rs. 47,000/- (Rs. 12,000/- plus Rs. 35,000/-). 60. Consequently, there is no dispute as to who had custody of the packet, what were its contents and its replacement value. That there is a statutory liability to account for the goods has been settled by the Supreme Court. Respondent No. 6 is clearly holding the goods on behalf of the Customs authorities under Section 45 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a mandamus directing Respondent No. 6 and the Customs authorities to trace the third packet and release/deliver it to the petitioner without payment of duty or demurrage can issue. It is well settled that the High Court is entitled to exercise its judicial discretion under Article 226 to give effective relief especially when a party is claiming to be aggrieved by the action of a public body or authority and it need not relegate a party to seek "relief by a somewhat lengthy, dialatory and expensive process by a civil suit" merely because a question of fact is raised. See: Century Spinning Manufacturing Co. Ltd. and Another v. The Ulhasnagar Municipal Council and Another, AIR 1971 SC 1021. 64. In the present case, most of the salient facts are not in dispute as above noticed. Further, the three packets were part of the whole Computer and the two packets of the computer released to the petitioner is not fully functional without the third untraceable packet. Though the computer is for use in the petitioner's professional work, the petitioner is not claiming any damage or loss for work having been hampered etc. but is only asking for the third packet to be traced out from the topsy ..... X X X X Extracts X X X X X X X X Extracts X X X X
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