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Ganesh Mahadev Jamsandekar Vs. Secretary of State for India - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtMumbai
Decided On
Case NumberFirst Appeal No. 190 of 1917
Judge
Reported inAIR1919Bom30; (1919)21BOMLR27
AppellantGanesh Mahadev Jamsandekar
RespondentSecretary of State for India
Excerpt:
.....in accused's absence--adjudication by collector merely on the report of the clerk--not a proper adjudication--jurisdiction of the civil court to entertain suit far setting aside confiscation. ;during the search of the plaintiff's house for an offence of theft, the sub-inspector of police found no incriminating articles but came across some silver ingots, which he attached and handed over to a clerk in the customs department. the clerk recorded evidence against tha plaintiff in his absence to the effect that the silver had been imported without payment of duty and made a report to the collector of customs who, without more, ordered the silver to be confiscated under section 182 of the sea customs act, 1878, and fined the plaintiff in a sum of rs. 1000 under section 107 (3) of the act...........which would then arise is this: supposing the sea customs act excludes the jurisdiction of the civil courts, is that enactment to that extent ultra vires of the indian legislature? the second way of looking at the matter is particular and turns entirely on the special facts to be proved. the question raised by this way of looking at the matter is this: does the sea customs act really exclude the jurisdiction of the civil courts in this particular case?5. the first and more general view need not really occupy our consideration, because unless the plaintiff can show that the courts have jurisdiction on the particular facts alleged, he cannot succeed whatever view be taken. of course unless there is. something in the law to prevent it, a plaintiff', whose property--and in this case.....
Judgment:

Heaton, J.

1. The plaintiff's suit was dismissed by the District Judge of Ratnagiri on the ground that the Court had no jurisdiction to entertain it. The plaintiff has appealed to us.

2. We have before us only the plaint, the written statement and the judgment of the District Judge, and as the question is one of jurisdiction and the facts have not been determined, we have for the purpose of our decision to assume the truth of the facts stated in the plaint and then determine whether the Courts have jurisdiction or not.

3. The plaintiff's cause of action, to put it briefly, is that some silver belonging to him of considerable value was seized and confiscated by the Customs authorities and that he was subjected to a penalty of Rs. 1,000 and that these things were done under the cover of Sections 167, 182, 188 and 191 of the Sea Customs Act (VIII of 1878). The plaintiff says these things were wrongfully done.

4. There are two ways in which the question of jurisdiction can be looked at. The first is a very general way which involves a consideration of the judgment of the Privy Council in the case of Secretary of State v. Moment (1912) 15 Bom. L.R. 27, P.C. The question which would then arise is this: supposing the Sea Customs Act excludes the jurisdiction of the civil Courts, is that enactment to that extent ultra vires of the Indian Legislature? The second way of looking at the matter is particular and turns entirely on the special facts to be proved. The question raised by this way of looking at the matter is this: does the Sea Customs Act really exclude the jurisdiction of the civil Courts in this particular case?

5. The first and more general view need not really occupy our consideration, because unless the plaintiff can show that the Courts have jurisdiction on the particular facts alleged, he cannot succeed whatever view be taken. Of course unless there is. something in the law to prevent it, a plaintiff', whose property--and in this case property of considerable value--has been seized and confiscated by a Customs official and from whom has been extracted a heavy fine, must have a right of action on the ground that these things have been wrongly done. The answer to this on behalf of the defendants who are the Secretary of State for India and the Collector of Customs is this: They say that for the purpose of confiscating property on the ground that customs duty has not been paid on it and of exacting a penalty, a Special Tribunal has been set up by the Sea Customs Act, and that as this is so, the jurisdiction of the ordinary Courts is excluded. The general proposition of law here implied cannot, 1 think, be disputed, and in support of it I will only mention the case of Balvant Ramchandra v. Secretary of State I.L.R. (1905) . 29 Bom. 480; 7 Bom. L.R. 497 and the cases therein referred to. As instances in which the principle has been applied, I mention the case of Lakshman v. Antaji I.L.R. (1900) 25 Bom. 312, 2 Bom. L.R. 1083 and the case of Ramchandra v. The Secretary of State I.L.R. (1888) Mad. 105. I need not labour this point, because it was conceded on behalf of the plaintiff that where such a Special Tribunal is provided by law, the jurisdiction of the civil Courts is excluded if the Special Tribunal has acted according to law. There can, I think, be no doubt that such a Special Tribunal is provided by the Sea Customs Act. Section 167 speaks of offences and penalties and gives a long list of them. Section 187 provides that all offences against this Act, other than those cognizable under Section 182 by officers of Customs, may be tried summarily by a Magistrate, Section 182 provides that all except a very small number of the offences mentioned in Section 167 are to be disposed of by Customs officers. The exact words are 'such confiscation or penalty may be adjudged.' Then follows a classified statement of jurisdiction conferring powers on Customs officers not dissimilar to, though more limited than those of First, Second and Third Class Magistrates. Then Section 188 provides that there shall be an appeal and that every order passed in appeal under this section shall, subject to the power of revision conferred by Section 191, be final. The power of revision conferred by Section 191 is conferred on the Local Government. We have here then very clearly indicated a Special Tribunal, and it is a Special Tribunal for adjudging confiscations or penalties or both against a person who is alleged to have committed an offence.

6. It seems to me that where this Tribunal operates, especially as the order of the appellate authority is stated to be final, a suit in the ordinary civil Courts will not lie to set aside the order of the Special Appellate Tribunal. At the same time the Government authorities cannot, to use a colloquial expression, have it both ways. They cannot have absolute immunity from civil suits and at the same time disregard the provisions of the Sea Customs Act. If the Special Tribunal has operated as provided by the Act, well and good. But if there has in fact not been a decision by such a Tribunal arrived at in the manner provided by the Act, then the Tribunal has not operated and the bar to a suit does not exist. The general nature of the proceedings of the Tribunal is indicated by the use of the word 'adjudge' especially as it is used in connection with what is described as an offence. We have therefore to consider whether the Customs officer has really adjudged the confiscation and the penalty, in other words, we have to consider whether there has been an adjudication. Now the plaintiff alleges that the officer who claims to have adjudged the confiscation and the penalty never himself took the evidence of the witnesses; that he never saw the plaintiff who may be described as the person accused or heard what he had to say ; that the person who did take the evidence was a subordinate official; that he took it in the absence of the accused who had no opportunity of cross-examining the witnesses; and that the accused was not given any opportunity of adducing evidence in his own favour. As I began by saying, we must, for the purposes of the argument, take these facts to be true, although it may be, when the case comes to be inquired into, it will be found that they are not true. Now assuming them to be true, it seems to me quite clear that there never was an adjudication of the kind contemplated by the Sea Customs Act. I will not attempt to define what such an adjudication should be beyond this : that it must be a fair hearing of both sides. Nor will I attempt to say whether, if some of the plaintiff's allegations be found to be true and others untrue, there was or was not an adjudication. I merely assume that all that the plaintiff says is true and then say that if this be so, there never was an adjudication such as is contemplated by the Act. On this assumption, therefore, there has never been a disposal of the matter by the Tribunal set up by the Sea Customs Act and therefore the jurisdiction of civil Courts has not been ousted.

7. The case, therefore, must be remanded to have it determined in the first instance whether there has or has not been an adjudication. If there has not, the civil Court has jurisdiction. If there has been adjudication, I think the civil Court has not jurisdiction.

8. The substantial ground on which the plaintiff bases his suit is: that there has not been adjudication and that is the only ground that we need in this case seriously consider.

9. There is a trivial claim for damages apart from the claim on account of confiscation and the claim on account of the fine imposed. For these damages the persons personally responsible would, according to the plaintiff's statement, be persons who are not made defendants in the suit, and the plaint which we have read very carefully does not seem to me to make out a case in the matter of these damages against the Secretary of State, and I think therefore that this portion of the claim must be disregarded.

10. This case has been wrongly decided on a preliminary point. Therefore it must be remanded to be heard de novo. But the issues will have to be reframed, and the only substantial issue is : whether there has been an adjudication such as is provided by the Act. If there has, the suit should be dismissed. If there has not, the order of confiscation and fine should be set aside, and the property confiscated or its value, and the amount of fine, with interest in both cases, ordered to be returned to the plaintiff'. The Court should consider only the proceedings taken by the Customs authorities. It should not go into the question of the legality of the actual seizure of the silver, because that is a matter irrelevant to this suit. The only matters relevant on the plaint and the facts stated therein are whether the Customs authorities, not the people who seized the silver, made an adjudication as provided by the Act. We have been unable to find that any rules have been framed by the chief Customs authority as provided by Section 9 of the Act, regulating the procedure and proceedings of the Customs authorities in the adjudication of confiscations and penalties. If such rules have been framed, they should be produced. If they have not, it may be that their absence will make the decision on the matter in dispute more difficult than otherwise it would be. Nevertheless the matter will have to be decided. My learned brother has quoted passages from judgments in English cases which should help the lower Court in arriving at a decision.

11. In my opinion the decree of the lower Court should be set aside as erroneously decided on a preliminary point and the case remanded as I have stated.

12. Costs of this appeal should be costs in the suit.

Hayward, J.

13. I concur. I do not understand the learned pleader for appellant seriously to press the somewhat indefinite and vague claim for Rs. 17 'compensation for pain and mental anxiety and bodily troubles and hardship and loss caused by the unjust and illegal acts of the officers and servants of Government.' It might prove an interesting study in human nature to enter upon an enquiry into this demand but it seems to me the temptation ought to be resisted on the principle 'de minimis non curat lex' and our attention ought to be focused solely on the really substantial claim for the recovery of the Rs. 1,000 fine and nearly Rs. 5,000 worth of bar silver alleged to have been wrongfully confiscated by the Executive Officers of Government purporting to act under the authority of the Sea Customs Act.

14. Now the appellant's claim in that respect was that the seizure of the silver was made in an illegal manner ; that the question whether the silver had or had not been improperly imported without payment of duty was wrongly decided ; that he had not been given a fair hearing ; and that the order of fine and confiscation was therefore passed illegally under Section 167 of the Sea Customs Act. The respondent's defense was that there had been no illegal seizure, that the silver had been improperly imported without payment of duty, and that the order of fine and confiscation had been legally passed by the Collector of Customs under Section 182 and had become final upon confirmation by the Commissioner and Government under Sections 188 and 191 of the Act and was therefore beyond the jurisdiction of the ordinary civil Courts.

15. It seems to me, in that respect, that the legality or otherwise of the manner of seizure is irrelevant. It is not the manner of seizure but the improper importation without payment of duty which is the legal justification of fine and confiscation under Section 167 of Sea Customs Act. It seems to me further that the question whether the silver was improperly imported without payment of duty is one that has been specially reserved for adjudication by the Special Tribunals established for that special purpose by Sections 182, 188 and 191 of the Act and that that question is therefore excluded from the cognizance of the ordinary civil Courts on the principles laid down in the cases of Lakshman v. Antaji I.L.R.(1900) 25 Bom. 312; 2 Bom. L.R. 1083; Balvant Ramchandra v. Secretary of State I.L.R.(1905) 29 Bom. 480,; 7 Bom. L.R. 497; and Bhaishankar v. The Municipal Corporation of Bombay I.L.R. 1907) . 31 Bom; 9 Bom. L.R. 417 But it seems to me nevertheless that the question whether there has been A legal adjudication in accordance with the provisions of the Act is not a question excluded from the cognizance of the ordinary civil Courts. If there has been no legal adjudication, then the order of fine and confiscation was ultra vires of the provisions of the Act and resulted in an ordinary wrong cognizable by the ordinary civil Courts on the general principles underlying Section 9 of the Civil Procedure Code. It is unnecessary to consider here the ruling of the Privy Council in the case of Secretary of State v. Moment (1912) 15 Bom. L.R. 27, P.C. as the former question has no reference to the liability of the Secretary of State and the latter question has not been excluded by the Act contrary to the provisions of Section 32 of the Government of India Act, 1915.

16. The real question, therefore, to be determined in this litigation is whether there has or has not been a legal adjudication in accordance with the provisions of the Act. That will involve determining, after evidence has been recorded, what was the exact method adopted for the purpose of the adjudication and whether that method was in accordance with the express or implied provisions of the Act. It is possible that some express procedure has been laid down by rules framed under the Act. But, if not, regard should be had to the following remarks of Lord Loreburn L. C. in the case of Board of Education v. Rice [1911] A.C. 179, 182:

Comparatively recent statutes have extended, if they have not originated, the practice of imposing upon departments or officers of State the duty of deciding or determining questions of various kinds. In the present instance, as in many others, what comes for determination is sometimes a matter to be settled by discretion, involving no law. It will, I suppose, usually be of an administrative kind; but sometimes it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. I need not add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything. But I do not think they are bound to treat such a question as though it were a trial. They have no power to administer an oath, and need not, examine witnesses. 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.

17. These remarks were quoted with approval by Viscount Haldane L. C. in the case of Load Government Board v. Arlidge [1915] A.C. 120 in which he said (at Page 132):

When the duty of deciding an appeal is imposed, those whose duty it is to decide it must act judicially. They must deal with the question referred to them without bias, and they must give to each of the parties the opportunity of adequately presenting the case made. The decision must be come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice. But it does not follow that the procedure of every such tribunal must be the same. In the case of a Court of law tradition in this country has prescribed certain principles to which in the main the procedure must conform. But what that procedure is to be in detail must depend on the nature of the tribunal. In modern times it has become increasingly common for Parliament to give an appeal in matters which really pertain to administration, rather than to the exercise of the judicial functions of an ordinary Court, to authorities whose functions are administrative and not in the ordinary sense judicial. Such a body as the Local Government Board has the duty of enforcing obligations on the individual which are imposed in the interests of the community. Its character is that of an organization with executive functions. In this it resembles other great departments of the State. When, therefore, Parliament entrusts it with judicial duties, Parliament must be taken, in the absence of any declaration to the contrary, to have intended it to follow the procedure which is its own, and is necessary if it is to be capable of doing its work efficiently.

18. And again (at page 133):

The result of its inquiry must, as I have said, be taken, in the absence of directions in the statute to the contrary, to be intended to be reached by its ordinary procedure. In the case of the Local Government Board it is not doubtful what this procedure is. The Minister at the head of the Board is directly responsible to Parliament like other Ministers. He is responsible not only for what he himself does but for all that is done in his department. The volume of work entrusted to him is very great and he cannot do the groat bulk of it himself. He is expected to obtain his materials vicariously through his officials, and he has discharged his duty if he sees that they obtain these materials for him properly. To try to extend his duty beyond this and to insist that he and other members of the Board should do everything personally would be to impair his efficiency. Unlike a judge in a Court he is not only at liberty but is compelled to rely on the assistance of his staff.

19. Lord Shaw also said in the same case (at Page 138):

When a central administrative board deals with an appeal from a local authority it must do its best to act justly, and to reach just ends by just means. If a statute prescribes the means it must employ them. If it is left without express guidance it must still act honestly and by honest means. In regard to these certain ways and methods of judicial procedure may very likely be imitated; and lawyer-like methods may find especial favour from lawyers. But that the judiciary should presume to impose its own methods on administrative or executive officers is a usurpation. And the assumption that the methods of natural justice are ex necessitate those of Courts of justice is wholly unfounded. This is expressly applicable to steps of procedure or forms of pleading.

20. If it should be determined upon these principles that there has been a legal adjudication in accordance with the provisions of the Act, then the suit should be dismissed as outside the jurisdiction of the civil Courts. If it should, on the other hand, be determined that there has been no legal adjudication in accordance with the provisions of the Act, then the order of fine and confiscation should be declared ultra vires and a decree should be passed for refund of the fine and restoration of the confiscated property in exercise of the ordinary jurisdiction of the civil Courts. It has been argued before us that liability for the wrong or tort, if any, committed by the Collector of Customs would not extend to the Secretary of State as the correctness of the decision of Sir Barnes Peacock in the case of The Peninsular and Oriental Steam Navigation Company v. The Secretary of State for India (1861) 5 B.H.C.R. App. 1 has been doubted by Sir Lawrence Jenkins in the case of Shivabhajan v. Secretary of State for India I.L.R. (1904) 28 Bom. 314; 6 Bom, L.R. 65. But it does not seem to me that those cases have here any application, as the liability in those cases depended solely on the conduct of the subordinate servants, while here it depends largely on the appropriation of the property for the benefit of the Secretary of State. There would appear no room for doubt in these circumstances as to the liability of the Secrete of State under Section 32 of the Government of India Act, 1915.

21. The suit must, therefore, in my opinion, be remanded as proposed for trial on the issues above indicated and in the light of the above remarks under Order XLI, Rule 23, Civil Procedure Code.


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