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TMI Blog1997 (10) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... er No. 1, at Madras or writ petitioner No. 2 at Ahmedabad, or in the alternative to pay a sum of Rs. 68,200/- or such further or other sum as the Court may direct. 2.Respondents herein are said to be the sons of Dadamchand Jain, respondent No. 1 being the elder and respondent No. 2 being the younger. The first respondent has filed the affidavit in support of the writ petition filed in this Court. He is a native of Dadal in the District of Jalora, Rajasthan and he is said to be residing at No. 5/8, Narayana Mudali Lane, Madras-79 and the second respondent is said to be carrying on business in general merchandise and plastic novelties at Ahmedabad and both are said to be aggrieved by the impugned order dated 31-1-1996 passed by the second appellant herein. The case as projected by the deponent in the affidavit filed in support of the writ petition is that he had come down to Madras at the invitation of his father-in-law to commence his own business and is staying in Madras for more than a year preceding the filing of the affidavit, that his father-in-law had promised to gift a colour Television set to his wife and accordingly, he had purchased one Sony colour Television set 29" mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated 31-1-1996 ordering confiscation of the television set and other miscellaneous goods and also imposing a personal penalty of Rs. 7,500/- against the second respondent. 3.Aggrieved, W.P. No. 3075 of 1996 came to be filed before this Court for the relief noticed earlier, stating that the order of the second appellant is absolutely void and without jurisdiction, that the second appellant has usurped the jurisdiction on a wrong assumption of facts and conducted the proceedings contrary to law and offending the sense of justice and fair play and also on patent misconstruction of the provisions of the Customs Act and the amended baggage rules as per various notifications of the Central Government. Inasmuch as the statutory remedy of appeal under Section 129 of the Customs Act is neither efficacious nor adequate, but really onerous, the writ petition is being filed without availing of such alternative remedy. In justification of the act of the respondents-writ petitioners for involving the jurisdiction of this Court under Article 226 of the Constitution of India, reliance has been placed on Article 226(2) of the Constitution of India, which enabled the jurisdiction of this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... second appellant is said to be more on assumption then on the correct proof and consequently, the penalty imposed was also unwarranted and without jurisdiction. 4.The appellants, who are respondents in the writ petition, have filed their counter affidavit contending among other things that the writ petition was not maintainable in this Court and also could not be filed without exhausting the alternative remedies, which are said to be effective. Further, the counter affidavit disclosed the circumstances under which the seizure of the television set as also the other goods was made and also contending that the action initiated and also the impugned order passed, were all in accordance with law. It is also stated for the appellants in the counter affidavit that the television set in question is of foreign origin, that the second respondent all along claimed that the television set was purchased for him, that initially he did not produce any records and it is subsequently only, the material claimed to have been produced has been actually produced, that on enquiries made through the customs office at Tiruchirapalli, it was informed that the address of the air passenger as given in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xhausting the alternative remedy of appeal under the Customs Act, the absence of notice of the first respondent before passing the impugned order as a ground in justification of filing the writ petition and finally the claim of the respondents on merits. So far as the maintainability of the writ petition in this Court is concerned, the learned Single Judge was of the opinion that in view of the Article 226(2) of the Constitution of India, the writ petition is maintainable in this Court because part of the cause of action, on account of the television set having been purchased at Madras and the first respondent being a resident of Madras arose within the territorial jurisdiction. As for the objection taken on the failure to exhaust the alternative remedies, the learned single Judge was of the view that though normally the Courts will not entertain a writ petition when alternate remedy, is available, since the order passed by the second appellant so far as the first respondent is concerned is ab initio void. He not having been issued with any show cause notice and no enquiry having been held against him he cannot file an appeal and even if the appeal has to be filed, it has to be fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge that the goods are not covered by or specified under Section 11B and Section 123 of the Customs Act and therefore, could not be said to have been liable for confiscation and that the Department at any rate, had not discharged its burden of proof that the goods were really smuggled goods, are liable to be set aside, contending that even if the goods are not those which are not covered under Section 11B or Section 123 of the Customs Act, the authorities are entitled to seized the goods and confiscate them, when they are satisfied that the goods are of foreign origin and had not been shown to have properly been imported and lawfully come into the possession of the persons holding such possession and that the materials on record were sufficient in law to justify the confiscation and imposition of penalty. 7.Per contra, Mr. M. Ranka, learned Counsel appearing for the respondents contended that part of the cause of action arose, as observed by the learned single Judge, at Madras, that the burden of proof in respect of non-notified goods lies on the Department to prove that they are smuggled goods, that the availability of the alternative remedy is not an absolute bar for invoking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner must prove, if traversed, to entitle him to a judgment in his favour by the Courts and in determining the same, it must be decided on the facts pleaded in the petition, irrespective of the truth or otherwise of the submissions made therein. The latest decision of the Apex Court in Oil and Natural Gas Commission v. Utpal Kumar Basu - [(1994) 4 SCC 711] has, in our view, dealt with the relevant principles. In State of Rajasthan v. Swaika Properties - [(1985) 3 SCC 217], the Apex Court dealt with a case, where the company which had its Registered Office at Calcutta owned a large chunk of land on the outskirts of Jaipur and the Special Officer, Town Planning Department, issued a notice that the State Government proposed to acquire lands for a public purpose namely implementation of a development scheme and the said notice was duly served on the respondent at their Calcutta office. When the Company instituted a writ petition in the High Court of Calcutta challenging the acquisition proceedings, disapproving of the view taken by the Calcutta High Court. Their Lordship of the Apex Court held that since the entire cause of action culminating in acquisition of lands under the relevant p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed from Madras will not in our view afford any cause of action or even constitute a part or particle of bundle of facts forming any integral part of cause of action relating to the relief sought for in the writ petition. The goods were found in the godown of the courier at the time of search. The second respondent has claimed even in his reply dated 12-12-1995 to the show cause notice issued by the second appellant leave alone the statement given earlier at the time of seizure that the television set in question was purchased by the first respondent on behalf of the second respondent at Madras for household use. He alone participated in the enquiry held without ever disclosing that 1st Respondent had any interest in the goods and the order dated 31-9-1996 came to be passed by the second appellant having his office at Ahmedabad and served on the second respondent also at Ahmedabad. By merely claiming to have purchased the T.V. Set same at Madras or by the more facts of having despatched the television in question from Madras to Ahmedabad alone, no part of the cause of action could be said to have arisen in Madras, since it is not the purchase at Madras or the act of despatch from M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... country. The bundle of facts which constitute cause of action either wholly or in part in a case would also depend upon the nature of the action challenged or the claim made and at any rate, in a matter relating to an order of confiscation, the cause of action could be said to have arisen only in the place, where the goods have been found and seized initially, which came ultimately to be confiscated by passing an order at a place where the order of confiscation has been made or where the office of the authority which passed the order of confiscation is situate. Since none of those facts had occurred within the territorial limits of this Court, the writ petition cannot be maintained in this Court. Consequently, we are unable to approve of the view taken by the learned single Judge in this regard, and we set aside the same. 9.Having regard to the view taken by us that this Court has no territorial jurisdiction to entertain the main writ petition itself, we consider it in appropriate and wholly unnecessary to deal with the other grounds also, on which the learned single Judge has chosen to accord relief to the respondents herein. The conclusions arrived at and the observations made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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