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TMI Blog1959 (7) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... how cause notice and to inform the Assistant Collector of Customs if they desired to have a personal hearing before him. By their letter dated the 20th of May 1958 the petitioners stated that the goods imported by them were embroidered all overs and that the goods did not have patterns running lengthwise and repeated at equal distance, that the design stripes in the fabrics could not be easily separated for use as laces and therefore the consignment was covered by their import licence. By their further letter dated the 14th of July 1958 they requested the Assistant Collector of Customs to refer the matter to the Chief Controller of Imports if necessary and again requested him to release the consignment against their licence. 3.By his order dated the 25th of July 1958 the 1st respondent held that the explanation given by the petitioners in their reply dated the 20th of May 1958 was not satisfactory, that the petitioners had committed an offence attracting the provisions of Sec. 167(8) of the Sea Customs Act and directed that the goods in question should be confiscated. He gave an option to the petitioners under Sec. 183 of the Act to pay an option fine of Rs. 11,500 in lieu of con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioners any opportunity to explain the different types of samples of goods imported in the past and which may have been inspected by the first respondent. The petitioners were not concerned to explain the different types of past imports. They were concerned to explain the type of their own imports." It is clear from this part of the affidavit in reply that the plea taken up on behalf of the 1st respondent is that even if the 1st respondent had inspected the samples, as he says he did in his order, the petitioners were not concerned with giving any explanation to the different samples of cloth imported in the past and inspected by the 1st respondent and that the only concern of the petitioners was to explain the type of cloth which they had imported under their licence. This part of the affidavit also makes it clear that the case put up on behalf of the 1st respondent is that there was no occasion to give to the petitioners any chance to explain the samples inspected by the 1st respondent and from which he ultimately came to the conclusion that the goods in question were lace cloth. 6.At the outset Mr. Chagla urged that the petitioners were guilty of delay in this case and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n question were curtain nettings or embroidered all overs. The findings of the 1st respondent on this question was :- "I have therefore, seen the samples of curtain nettings, embroidered all overs and lace cloth imported in the past. Curtain nettings are usually used for mosquito curtains. They have regular and plain pattern. In the present case the cloth imported cannot be used as mosquito curtains. It is costly for one thing and the air space is also too small. Embroidered all overs have regular cloth as its back ground and have embroideries done on the cloth. The cloth imported is clearly not embroidered all over. It is commonly known in the trade as lace cloth and decidedly not as curtain netting or embroidered all over. In view of this the licence produced by the importers cannot be accepted as covering these goods." 8.Mr. Chinoy's contention in connection with this part of the order was that there could be no question that after the petitioners had sent their written reply to the show cause notice the 1st respondent inspected certain samples of curtain nettings, embroidered all overs and lace cloth imported in the past and relying upon them he came to the conclusion that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortunity not having been given to them. That however is hardly an answer to the contention raised on behalf of the petitioners. The show cause notice, which was read out to me by Mr. Chagla from the record, admittedly did not and could not have informed the petitioners that 1st respondent after receiving the petitioners' reply dated 20th May was going to rely upon this type of evidence viz. the samples. The reply was given by them on the 20th May, that is to say, the day next after the date of the show cause notice when the petitioners could not possibly have known that the 1st respondent was going to rely upon samples and therefore could not have replied about the samples and which the 1st respondent collected and inspected afterwards. 10.The question, therefore, is a narrow one, viz. can the 1st respondent collect evidence or information, in this case by way of samples from imports made in the past either from his own department or from other resources and come to his finding based upon such information or evidence without giving an opportunity to the petitioners to rebut or explain such evidence? In my view, the answer must be in the negative for such an action would be in bre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t his being given an opportunity of explaining them. 12.A similar principle was also laid down in Errington v. Minister of Health (1935) 1 K.B., 249. The facts in that case were that on the 23rd of February 1933 the Jarrow Corporation, acting under the Housing Act, 1930, made a clearance order in respect of certain buildings in a certain area and submitted the same as required by the Act, for confirmation to the Minister of Health. On April 13, 1933, a notice thereof was published by the local authority and served upon the owners of the property comprised within the clearance order. On April 26, the appellants gave notice of objection to the clearance order. The Minister of Health in accordance with the provisions of the Act - caused a public local inquiry to be held by one Mr. Collin, an Inspector. At a meeting held on September 6, 1933, at Jarrow at which the representatives of the owners as well as representatives of the Corporation were present. Mr. Collin suggested that the owners should submit particulars of what repairs they were prepared to make to the properties so that they might not have to be cleared off. Though some agreement was arrived at, the Corporation maintaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eard the appeal against that order of dismissal after approving the observations of Viscount Haldance L. C. and Lord Parmoor in Local Government Board v. Arlidge (1915) A.C. 120, that the procedure of a semi-judicial tribunal in detail must depend on the nature of such tribunal and that therefore they can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view, held that in the case before him there was a breach of the rules of natural justice and reversed the order of dismissal passed by Mr. Justice Swift. It may be observed that in the same case dealt with by Greer L. J. as in the case before me, an opportunity was in effect given to the appellants in the beginning but it was at a subsequent stage that an ex parte information was received; yet the Court of Appeal came to the conclusion that there was thereby a breach of the rules of natural justice. Therefore, although an opportunity to explain is given at the outset but if thereafter a semi-judicial tribunal were to collect information which is not disclosed to the party affected th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ills Division, AIR 1958 (S.C.) 398, where it is observed that the rules of natural justice vary with the varying constructions of statutory bodies and the rules prescribed by the Act under which they function. The question whether or not any rules of natural justice had been contravened should be decided not under any pre-conceived notions, but in the light of the statutory rules and provisions. The Supreme Court there observed that in the case before them no such rules had been brought to their notice which could be said to have been contravened by the appellate authority. It observed therefore that simply because the tribunal had viewed the matter in a light which is not acceptable to another independent tribunal is no ground for interference under Art. 226 of the Constitution. 15.It is no doubt true that the petitioners in this case have not shown any rules made under the Sea Customs Act for the procedure to be followed by the Customs Authorities on inquiries held before them from which it can be said that any particular rule had been contravened by the 1st respondent. Mr. Chagla in fact told me that there were no such rules but that the practice followed by the Customs Author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p. 769). "From a careful consideration of these authorities it is clear that all that is meant by compliance with rules of natural justice by a domestic tribunal is that the tribunal must act honestly and with good faith, and must give a delinquent a chance of explanation and defence. If its rules postulate an enquiry, the delinquent must have a reasonable opportunity of being heard and of correcting and contradicting a relevant statement prejudicial to his view." The view therefore expressed in Province of Bombay v. Madhukar Ganpat, 53 Bom. L.R. 754 is not in any way different from that laid down in 56 Bom. L.R. 138 or the other cases already referred to. 17.On the principles laid down in these authorities both of our High Court as also of the Supreme Court the 1st respondent contravened the rules of natural justice in failing to give an opportunity to the petitioners to rebut or explain the effect of the samples which he inspected behind their back. The result of that omission was that the order passed by him depending upon the inspection of the samples made by him was vitiated and was therefore void. 18.Mr. Chagla however contended that a mere examination of the samples ..... X X X X Extracts X X X X X X X X Extracts X X X X
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