A.K. Sinha, J.
1. This Rule is obtained by the petitioner for quashing an order imposing penalty and confiscation of a motor car under the Customs Act, 1962 (referred to herein as the Act).
2. The petitioner who claims to be the owner of a motor vehicle (Ambassador car) registration No. W. B. F. 8610 under a hire purchase agreement of June 16, 1968 (sic) agreed to let on hire to the respondent No. 5 on payment of certain monthly instalments with option to the hirer to purchase the car in instalments of a total sum of Rs. 15,000/- with a condition inter alia to terminate the agreement and to recover possession of the car in case of default in payment of instalment. On or about April 9, 1967, this car was seized for carrying smuggled goods containing about 98 Kgs. of Cinnamon at Barasat. Ultimately, an adjudication proceeding was started by the Customs Authorities.
3. On or about 4th April'. 1969, the petitioner filed a suit No. 818 of 1969 in the Original Side of this Court for a declaration that he was owner of the car and for recovery of possession, -- alternatively for a decree of Rupees 15,000/- being the market value of the car against respondents Nos. 5 and 6. In this suit a Receiver was appointed but upon the application of the petitioner a further order was made on May 15, 1970 which inter alia authorised the Receiver to take possession of the car only if the Customs should release it. It is alleged that although the Customs Authorities were not parties in this suit, they were duly intimated by the petitioner and they also took inspection through their Solicitors of records. Thus in spite of having knowledge that the petitioner was the owner of the car the authorities without giving any notice to the petitioner completed the adjudication proceeding and passed an order on August 18, 1970, imposing a fine of Rs. 4,000/-and also confiscated the car with an option to the owner to redeem it on payment of fine of Rs. 4,000/- within a month from the date of the order. That is how, in short, the petitioner felt aggrieved and obtained the present Rule.
4. Quite a large number of grounds were taken but the main grievance of the petitioner is that the impugned order was without jurisdiction and invalid as the Customs Authorities failed to give opportunity of hearing to the petitioner as the owner on issuing a show cause notice as required under Section 124 of the Act The case of the Customs Authorities as appears from paragraph 3 (b) of the Affidavit affirmed on 12th May, 1971. by one Kamakhya Ranlan Ghosh substantially is that 'since 25th March, 1969, the petitioner admittedly was aware of the fact that the said car was seized by the Customs Authorities and adjudication proceedings in respect thereof were pending under the provisions of the Customs Act. 1962. In spite of said facts, the petitioner neither claimed ownership of the car before the Customs Authorities nor appeared in the said adjudication proceedings; on the contrary the petitioner was all along aware that the respondent No. 5, Ashim Kumar Dutta, claimed to be owner of the said car before the Customs Authorities and allowed the said proceedings to continue against the said respondent No. 5 as the owner of the said car. In the premises aforesaid, the petitioner is estopped from claiming ownership of the said car or to challenge the said adjudication proceedings or the order made therein on the basis thereof'. In paragraph 4 of the affidavit petitioner's reply to these allegations in his affidavit Is that 'save and except what are stated in various paragraphs of the main petition affirmed on 24th December. 1970, I deny the allegations contained therein.' But the petitioner's own statement in paragraph 12 of the writ Petition is that on or about 25th March, 1970, the Collector of Customs and Central Excise of West Bengal or their agents took inspection of the orders dated September 23, and 30, 1969, It seems, therefore. clear that the petitioner had knowledge of the adjudication proceedings pending before the Customs Authorities on March 25, 1970. This being the position, the question precisely is whether it is still open to the petitioner to challenge the validity of the impugned proceedings and orders of the Customs Authorities even though admittedly no notice under Section 124 of the Act was given at any stage upon the Petitioner.
5. Before I come directly to thepoint I should look into relevant part, viz.. Sub-section (2) of Section 115 of the Act which provides:
'Any conveyance or animal used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods shall be liable to confiscation, unless the owner of the conveyance or animal proves that it was so used without the knowledge or connivance of the owner himself. Ms agent, if any, and the person in charge of the conveyance or animal and that each of them had taken all such precautions against such use as are for the time being specified In the rules: Provided that where any such conveyance is used for the carriage of goods or passengers for hire, the owner of any conveyance shall be given an option to pay in lieu of the confiscation of the conveyance a fine not exceeding the market price of goods which are sought to be smuggled or the smuggled goods, as the case may be.'
6. The only other section which Is material for the present purpose is Section 124 which is in these terms:
'Issue of show cause notice before confiscation of goods, etc. -- No order confiscating any goods Or imposing any Penalty on any person shall be made under this Chapter unless the owner of the goods or such person-
(a) is given a notice In writing informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty;
(b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation or imposition of penalty mentioned therein; and
(c) is given reasonable opportunity of being heard in the matter: Provided that the notice referred to In Clause (a) and the representation referred to in Clause (b). may at the request of the person concerned be oral.'
7. On a fair reading of these two provisions it seems clear that the Customs Authorities in matters involving confiscation of any goods or imposition of penalty are under a statutory duty to act quasi-judicially on observing certain judicial procedure commencing with a notice to show cause upon the owner or person affected consistent with the rules and principles of natural justice. There is no dispute that the goods include inter alia motor vehicles as defined under Item 22 of Section 2 of the Act. Now. the argument on behalf of the petitioner is that the Customs Authorities cannot avoid the performance of this statutory duty of issuing notice to show cause upon the owner or complying with other obligations before an order of confiscation or imposition of penalty is made. Reliance is placed on a decision in : AIR1968Cal28 . (Charandas Malhotra v. Asst. Collector of Customs and Supdt. Preventive Service). In this case in a proceeding for confiscation of goods under Section 110 of the Act it has been held that a notice to show cause to the person affected under Section 124 of the Act was vague and unspecific and therefore, the authority did not give such person reasonable opportunity consistent with the rules and principles of natural justice as are required to be observed under S. 124 of the Act But the point in the instant case is whether the petitioner having had the knowledge of the adjudication proceedings for confiscation of his motor vehicle and not having preferred any objection before the Customs Authorities can now turn up to challenge the validity of the proceedings or the impugned orders just because notice under Section 124 of the Act was not served upon him. It is contended by Mr. Pyne, on behalf of the respondents in the first place, that on the admitted position of the parties the petitioner has waived his right, even if he is the owner of the car, of being served with a notice to show cause against the proposed order of confiscation or imposition of penalty as contemplated under Section 124 of the Act. I think the question of waiver does not strictly speaking arise in this case. The word 'waiver' in its legal sense often creates difficulties. In one of the earliest decisions of this Court reported in Dhanukdhari Singh v. Nathima Sahu, (l907) 6 Cal LJ 62, it was explained to mean intentional relinquishment of known right and it may be proved by express promise or declaration not to enforce such right as may be inferred from the conduct of parties. In later years the Judicial Committee in 62 Ind App 100 = (AIR 1935 PC 79), Dawsons Bank Ltd. v. Nippon Menkwa Kabushihi Kaish, in clarifying the distinction between waiver and estoppel has laid down that 'waiver' is contractual and may constitute the cause of action; it is an agreement to release or not to assert a right whereas estoppel is not a cause of action but it is a rule of evidence which comes into operation where (a) a statement of acceptance of a fact is made by the defendant or an authorised agent to the plaintiff or some one in his behalf (b) with the intention that the plaintiff shall act upon the faith of the statement, (c) and the plaintiff does act upon the faith of that statement. The Supreme Court in still later years in Basheshar Nath v. Commr. of Income-tax. : 35ITR190(SC) . noticed this distinction and accepted the same legal connotation of, these two words as expressed by the, Judicial Committte. It is therefore clear that the petitioner in the present context cannot be said to have waived his, right to defend himself in the impugned, proceeding.
8. The question still is whether the petitioner by his conduct is estopped from challenging the validity of the adjudication proceeding and the resultant order of confiscation and penalty imposed by the Customs Authorities. Remembering the leeal exposition as made by Judicial Committee and the Supreme Court relating to estoppel, I do not think, the petitioner by any declaration, act or omission intentionally caused or permitted the Customs Authorities to proceed with the adjudication proceedings and impose penalty of confiscation without giving an opportunity of defending itself. On the other hand, the petitioner filed a suit for a declaration that he was the owner of the car and the hire purchase agreement with Ashim Dutta stood terminated and for recovery of possession of the car and for other consequential relief. He also took further steps in the suit by appointment of Receiver for taking possession of the car lying in the custody of the Customs Authorities and also for injunction tend other incidental reliefs. From these facts which are not denied there is nothing to indicate that there was any declaration, act or omission on the part of the petitioner by which the Customs Authorities were led to believe that the petitioner was not the owner of the car or that no opportunity was required to be given to the petitioner under Section 124 of the Act.
9. The point may be considered from another aspect. When a particular authority or a Public Officer or a person is entrusted to perform a public duty under a statute, non-performance of such statutory duty cannot be explained away only by setting up a plea of estoppel. Apart from the broad principle that there could be no estoppel against a statute, (see : 2SCR303 . Amar Singhji v. State of Rajasthan) it is well established that no Court can enforce as valid that which the enactments have declared shall not be valid, nor a thing declared so to be invalid can be valid by mere consent of the parties for failure to plead or argue the point. See Suraimull Nagarmull v. Triton Insurance Co. Ltd., 29 Cal WN 893 = (AIR 1925 PC 83). This then being the position in law it is difficult to see how the Customs Authorities could escape the performance of their obligation coupled with duty under the Statute land pass an order of penalty and confiscation (which in absence of compliance with such duty would be invalid), just because the petitioner lone before the impugned orders were passed came to know of the adjudication proceedings but did not participate or prefer any objection in such proceedings. In my view having regard to the mandatory provision of Section 124 even if the petitioner was aware of such adjudication proceeding the duty to serve notice upon the petitioner and to adjudicate the question of confiscation and imposition of penalty in the manner indicated under Section 124 of the Act could not be shaken off. A mere plea of constructive notice is not a sufficient answer either to such non-compliance with statutory duty.
10. It may be that different consideration might possibly arise if the Customs Authorities had not known about the petitioner's claim as owner of the disputed car before the impugned orders were passed or the petitioner having already participated in the adjudication proceeding wanted to turn up and challenge the validity of the impugned order on the ground of absence of show cause notice, but here, in the instant case the facts are otherwise. The petitioner filed a suit claiming ownership and recovery of possession of the car of which the Customs Authorities though not parties in the suit had due notice. No explanation has been given by the respondents Nos. 1 to 4 as to why they refrained from giving any notice upon the petitioner against proposed confiscation or penalty even though admittedly the petitioner was claiming ownership of the car in the suit. The term 'Owner' as denned under the Motor Vehicles Act includes the 'person in possession under the hire purchase agreement' but under the Customs Act it has not been defined, It is not disputed that the definition of owner under the Motor Vehicles Act cannot be applied in matters arising out of the Customs Act and therefore the owner must be understood in its ordinary dictionary meaning in a comprehensive sense. It is difficult to see why the Customs Authorities did not take any pains to have requisite information about the ownership of the car from the Authorities of the Motor Vehicles Department Be that as it may, the fact remains that before the conclusion of the adjudication proceeding culminating in the impugned order of confiscation and penalty they had the knowledge that the respondent No. 5 was a hirer of the car under a Hire Purchase Agreement with the petitioner as owner of the car and that agreement was sought to be terminated for breach of certain terms. I think, in spite of these facts, failure to issue a show cause notice against the petitioner constituted undoubtedly a breach of statutory dutv of the Customs Authorities and this has vitiated the en-lire adjudication proceeding and resultant order of confiscation and imposition of penalty.
11. The next point urged by Mr. Pyne is that notice even though not given to owner was given to the hirer, the respondent No. 5 who must be deemed to be an agent of the owner and. therefore, the notice to show cause served upon such agent is a sufficient compliance. Mr. Pyne draws my attention to Section 147(3) to show that when any person is expressly or implied-ly authorised by owner, importer or exporter of any goods to be his agent in respect of such goods for all or any of the purposes of this Act. such person shall without prejudice to the liability of the owner, importer or exporter be deemed to be the owner, importer or exporter of such goods for such purpose. I do not think, this provision has any application to the facts of the present case. Firstly, there is nothing on record to show that the petitioner expressly authorised the respondent No. 5 to be his agent in respect of the car. Secondly, from the hire purchase agreement between the respondent No. 5 and the petitioner it cannot be said that there was any implied authorisation by the owner of the respondent No. 5 to be his agent in respect of the car for the purposes of the Customs Act. Under a hire purchase agreement it may be that a hirer is put into possession of the car and acquires certain rights and obligations relating to possession and use of the car but those rights and obligations cannot relegate the hirer into position of an agent of the owner for the purpose of the Customs Act unless such a status as that of an agent is expressly or by necessary implication provided or there is sufficient evidence of holding out the hirer as agent of the owner for the purpose of the Act Clearly, in this case there is nothing on record to show that the petitioner held out the hirer as his agent for the purpose of the Act. On the contrary, it has filed a suit for cancellation of the hire purchase agreement and for recovery of possession of the car. This contention of Mr. Pyne, therefore, fails.
12. This brings me to the lost point argued by Mr. Pyne which raises the question of delay. It is said that no explanation has been given of the delay caused in moving this Court in writ jurisdiction in June 1971. although admittedly the petitioner had knowledge of the adiudication proceedings at least from July, 1969. It appears, however, that in the suit filed by the petitioner although the Customs Authorities were not the parties, the Court nevertheless gave direction to the Receiver appointed at the instance of the petitioner to obtain possession of the disputed car if the Customs Authorities could release the car. Then the petitioner's Solicitor. Receiver appointed in the suit and the Customs Authorities entered into long correspondence and from the nature of the correspondence I do not think, it is unreasonable for the petitioner to expect release of the car and making over its custody to the Receiver. It was only in November. 1970 that the petitioner was informed by the respondent No. 2 about the order of confiscation and the penalty imposed at the conclusion of the adjudication proceedings made in August, 1970. Then by letter dated 28-11-1970 information was given to the Receiver on behalf of the respondent No. 1 that the car was in the custody of the respondent No. 3 and the Receiver should approach him and discuss the matter. Copy of this letter was forwarded to the petitioner's Solicitor under a letter dated 21-12-1970 and received by the Solicitor on December 22. 1970. A letter was also issued by the Receiver to the respondent No. 3 dated December 21st 1970 for confirmation of the alleged order and for confirmation thereto by 22-12-1970 confirming the order. These facts as appear from the correspondence by the parties are not, denied. It would be, therefore. I think only reasonable to conclude, the petitioner acted bona fide under the advice of its Solicitor and made representation to obtain release of the car up to at least November. 1970 without being told by the Customs Authorities at any time that the car stood already confiscated in lieu of payment of penalty of Rs. 4,000/-, It, thus, appears that although the petitioner came to this Court almost after about one and a half years it cannot be said that there is no sufficient cause for the delay. I cannot say on the facts of this case that there was negligence or want of diligence on the part of the petitioner in moving the writ petition in this Court. The last point raised by Mr. Pyne therefore, also fails.
13. Before I part with this case I must mention here that the learned Advocate for the petitioner informed me that the suit instituted by the petitioner in his case ended in a decree in favour of the petitioner. That again is a point which goes against the respondent.
14. For the reasons however, already given, the result is, the petition succeeds. The impugned adjudication proceeding and the orders are quashed. I make no order as to costs.
15. The Rule is, accordingly, made absolute. I, however, make it clear that nothing in my judgment will prevent the respondents Nos. 1-4 to start proceedings afresh and to act in accordance with law. Let a writ both in the nature of Mandamus end Certiorari issue accordingly.