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Mahadeo (Prosad) Saraf Vs. S.K. Srivastava and ors. - Court Judgment

LegalCrystal Citation
SubjectCustoms;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 116 of 1962 (Matter No. 166 of 1962)
Judge
Reported inAIR1963Cal152
ActsConstitution of India - Articles 32 and 226; ;High Court Rules - Rule 26
AppellantMahadeo (Prosad) Saraf
RespondentS.K. Srivastava and ors.
Appellant AdvocateSiddhartha Shankar Roy and ;T. Basu, Advs.
Respondent AdvocateG.P. Kar and ;A.K. Banerji, Advs.
DispositionAppeal allowed
Cases ReferredState of Orissa v. Madan Gopal
Excerpt:
- bose, c.j.1. this is an appeal from an order of banerjee j, dated the 7th june, 1962 summarily rejecting an application under article 226 of the constitution and refusing to issue a rule nisi.2. the appellant carries on business under the name and style of narayan timber works at premises no. 67/23, strand road, calcutta, as the sole proprietor thereof. the business consists, inter alia, in the sale and purchase of various kinds of timber and wood. in october 1961 the appellant entered into a contract with scindia steam navigation co. ltd. for the purchase of unserviceable dunnage wood. the importation of dunnage wood was et the material time governed by a notification dated the 22nd october, 1960 issued under the provisions of the sea. customs act, 1878. on 3rd october, 1961 the.....
Judgment:

Bose, C.J.

1. This is an appeal from an order of Banerjee J, dated the 7th June, 1962 summarily rejecting an application under Article 226 of the Constitution and refusing to issue a Rule Nisi.

2. The appellant carries on business under the name and style of Narayan Timber Works at premises No. 67/23, Strand Road, Calcutta, as the sole proprietor thereof. The business consists, inter alia, in the sale and purchase of various kinds of timber and wood. In October 1961 the appellant entered into a contract with Scindia Steam Navigation Co. Ltd. for the purchase of unserviceable dunnage wood. The importation of dunnage wood was et the material time governed by a notification dated the 22nd October, 1960 issued under the provisions of the Sea. Customs Act, 1878. On 3rd October, 1961 the appellant received from the Scindia Steam Navigation Co. Ltd. respondent No. 4. a letter offering 15 torts of dunnage wood from its steamer 'S. S. Jalakirti'. The steamer S. S. Jalakirti entered the Calcutta Port on the 5th October, 1961. The appellant immediately contacted the officers of the Steamship Co. and requested them to take necessary steps for delivery of 15 tons of dunnage wood. On the same day, that fs, 5th October 1961 a guarantee was submitted with the Customs Authorities purporting to be that of respondent No. 4 with a request for discharging 15 tons of dunnage wood out of the steamer 'S. S. Jalakirti' and for shifting the same to G. Berth in King George's dock. The guarantee was duly accepted by the Customs authorities and the Steamship Co. was permitted to dis charge 15 tons of dunnage wood from the steamer 'S. S. Jalakirti'. The goods were then discharged into a cargo boat and were finally landed from the cargo boat to G. Berth where they were examined by the Customs Appraiser for the purpose of ascertaining the quantity and value for assessment of customs duty. On 11th October, 1951 the Bill of Entry in respect of 15 tons of dunnage wood was duly filed and the duty assessed thereon was duly paid on behalf of the Steamship Co. respondent No. 4. : In the Bill of Entry there is reference to the import licence dated the 20th October, 1961 under which the goods were sought to be imported. On 1st November, 1961 the appellant paid a sum of Rs. 1140/- to the respondent No. 4 as the purchase price of the said 15 tons cf wood and received a delivery order for the said goods. It is alleged that the unloading of the said 15 tons of wood from the steamer commenced on 6th October 1961 and was completed on 9th October 1961 and they were unloaded into a cargo boat bearing No. C-13729 belonging to one Girish Munni Chowdhuri and the said boat was being manned by a crew consisting inter alia of one Shatu Manji. The said goods after being unloaded from the cargo boat to the G. Berth were stacked and the stack was market with grey paint in accordance with the rales of the Customs Authorities. On or about 1st November 1961 the appellant received a notice issued by the Assistant Collector of Customs and Superintendent Preventive Services Respondent No. 2. calling upon the applicant to show cause why action should not be taken against him under Section 167 clauses 3. , 8. and 29. of the Sea Custom Act. It was alleged in this notice to show cause that in addition to the 15 tons of dunnage wood discharged fromthe steamer 'S. S. Jaiakirti' other quantities of dunnage wood had been unloaded from the steamer under the orders of a representative of the appellant without the Knowledge and consent of the Customs Authorities and a portion ot this had been removed by a lorry engaged by the appellant. On the 2nd November 1961 the appellant sent a reply to the said notice. On 27th November, 1961 the appellant was offered inspection of certain statements of Manjis and, dandis of the said cargo boat No. 13729 on the basis of which the notice to show cause dated the 1st November 1981 had been issued by the Assistant Collector of Customs respondent No. 2. . On 6th January, 1962 a personal hearing was given to the appellant by the respondent No. 1, the Additional Collector of Customs. AS the hearing the appellant relied on a statement of the said Shalu Manji which had been made by the Manji in his presence and in the presence of Girish Munni Chowdhuri. Thereupon the Manji was called as witness by the Additional Collector of Customs for giving evidence and the Manji stated before the Additional Collector of Customs that he had made no statement before the appellant but he had merely put his thumb impression on a blank piece of paper and he further stated before the Additional Collector of Customs that no statement had been extorted from him by the Customs Authorities and whatever he had stated before the Customs Authorities was the truth. It appears that thereupon the appellant requested the respondent No. 1 to grant a further personal hearing in order to enable the appellant to produce the said Girish Munni Chowdhuri as witness and ttie appellant also requested the respondent Ho. 1 to summon and record the evidence of the customs officers under whose supervision the dunnage wood had been discharged. On 8th January, 1962 another letter was written by the appellant asking for a further personal hearing, but no such further personal bearing was granted. On 1st May, 1932 the respondent No. 1 passed an order for confiscation of the dunnage wood and imposed a fine of Rs. 6,000/- in lieu of confiscation. The respondent No. 1 further Imposed a personal penalty of Rs. 4,000/- under Section 1678. of the Sea Customs Act and a personal penalty of Rs. 1,000/- under Section 1673. of the said Act on the appellant. On 7th June, 1962 the appellant moved an application under Article 226 of the Constitution of India for a Writ in the nature of Certiorari for quashing the order of the 1st May, 1962 and also for a Writ in the nature of Mandamus directing the respondents to recall or cancel the said order and to forbear from giving effect to the said order. But the application was dismissed In limine by Banerjee J. it is against this order of Banerjee J that the present appeal has been preferred.

3. After filing ths appeal, the appellant took out a notice of motion on 12th June, 1962 asking for an injunction restraining the respondents their agents and servants from taking any steps under the said order dated the 1st May, 1962 pending disposal of the appeal. An interim injunction was granted by this Court ex parte ponding disposal of the application and the notice of motion was made returnable on the 18th Juna 1962. Thereafter directions for affidavits were given and when the application for injunction came up for hearing certain objections ware raised on behalf of the respondents as to ttie maintainability of the application. After hearing the parties at some length this Court directed that the appeal and the application would be heard together on a date fixed.

4. At the hearing of the appeal the first point which has been sought is be raised on behalf of the appellantis that in respect of 15 tons of dunnage word in respect of which a green boat note was issued and for which a Bill of Entry and a guarantee had been duly filed by the Scindia Steam Navigation Co. Ltd. and which 15 tons had been separately stacked and marked with grey paint by the Customs Appraiser who had appraised the said stack after measuring it for assessment and in respect of which the duty assessed had duly been paid, there could not possibly be an order for confiscation made as had been done by the Additional Collector of Customs by his order dated the 1st May, 1962. A suggestion has been made on behalf of the Customs Authorities that this Bill of Entry had been submitted not on behalf of the Scindia Steam Navigation Co, Ltd. but on behalf of the appellant and as such it is a contravention of the notification dated the 22nd October 1960 which is annexure 'B' to the petition. But the statement of facts made in the order of the Additional Collector of Customs do not quite bear out the suggestion made at the hearing on behalf of the Customs Authorities. The contention of the learned counsel for the appellant has been that if this portion of the order of the Additional Collector of Customs confiscating these 15 tons of dunnage wood is unsustainable then the entire order passed by the Additional Collector of Customs on 1st May 1962 must be held to be bad inasmuch as the rest of the order is not severable from this portion of the order and also because it is not known how far the bad reasons in making an order had affected or outweighed the good reasons. Reference has been made to the decision of the Supreme Court reported in, S. : [1954]26ITR736(SC) , Dhirajlal v. Commissioner of Income-tax Bombay and to the decisions of tie Calcutta High Court reported in, S. : AIR1957Cal638 , Satya Narayan Transport Co. v. Secretary, State Transport Authority. The further contention which has been sought to be raised on behalf of the appellant is that the appellant is not liable for the Act of the alleged agent Sri O. P. Singh in respect of any landing of goods in excess of the quantity of 15 tons which had been authorised, no authorisation express or Implied in this respect of Sri O, P. Singh by the appellant having been proved. So if any person is liable for the unauthorised importation or lending it is Sri. O. P. Singh himself. Moreover there can be so agency in the mattar of commission of a wrong. The wrong doer alone is liable to be dealt with as the party directly responsible for his wrongful action. See Authorised official and Income-tax Officer v. Thangal Kunju Musaliar, S. AIR 1956 SC 246 at pp. 254-255 Para 29 of the judgment. . The appellant cannot be made liable for such importation or landing as he is not a person concerned in the importation within the meaning of the relevant provisions of the statute. The Additional Collector of Customs in the impugned order has made inter alia the following observations :

'I am unable to treat the landing of importation or 15 tons of dunnage wood as an act of operation independent of and unconnected with the landing of the rest of about 30 tons of dunnage wood. Messrs. Narayan Timber Works with the active co-operation of those in charge of the affairs on board 'S. S. Jaiakirti' seemed to and did land unauthorisodly large quantities of dunnage wood and far achieving this target and not for the purpose only of landing and clearing of 15 tons of dunnage wood they complied with certain formalities including those of obtaining an Import Trade Control Licence for 15 tons of dunnage wood and also removal of a truck-load of damage wood outside the docks before the said dunnage wood was assessed to duty.'

5. Another question has been raised that the appellant should hare been given a second personal hearing as asked for and inasmuch as that had not been done there has been violation of the principles of natural justice.

6. The questions and contentions required investigation into questions of fact and law and Without saying anything further on these points we think that the present case is one in which a Rule Nisi should have been issued by the Trial Court and the opposite parties should have been asked to show cause.

7. With regard to the application for injunction the learned counsel appearing for the respondents has raised a preliminary objection to the maintainability of the application. His contention is that when an application for a Rule Nisi under Article 226 of the Constitution is dismissed in limine by the trial Court and an appeal is preferred from this order of dismissal the scope of the appeal is limited to the consideration of the question whether the application under Article 225 makes out a prima facie case for the issue of a Rule Nisi or not and it is only when after hearing the appeal the appellate Court comes to the conclusion that Rule Nisi should be issued that it has power to issue any order of injunction or to grant any other interim relief pending disposal of the proceeding under Art. 225 of the Constitution. If, however, the appellate Court is of the opinion that no case for a Rule Nisi has been made out in the petition then it has no power or jurisdiction to grant an interim relief in the proceeding, So unless and until the man question involved in the appeal namely whether a Rule Nisi should be issued or not is determined and is decided in favour of' the petitioner under Article 226 of the Constitution, no application for an injunction is maintainable.

8. Reliance has been placed in support of this argument on certain decisions of this High Court and of the Supreme Court. The first decision to which the attention of the Court has been drawn is that reported in Shiva Nandan Sinha v. State of Wast Bengal, : AIR1954Cal60 F.M.A. No. 136 of 1952. . In this case a constable in the Bengal Police Service was dismissed from service on certain charges of illegal gratification. After taking certain unsuccessful proceedings before the Departmental authorities, the constable made an application under Article 226 of the Constitution. The trial Court dismissed, the application in limine and against the said order an appeal was preferred to the appellate Court. The appellate Court after considering the allegations in the petition and the several contentions raised on behalf of the appellant came to the conclusion that the case was one in which the respondent should have been asked to show cause in view of the fact that some of the questions were not pure questions of law but involved questions of fact. Accordingly the order of the learned trial judge was set aside and the ease was remitted to the learned Judge hearing applications under Article 225 of the Constitution. A notice was directed to be given to the respondent to show cause and it was further directed that the respondent should be given an opportunity to file their affidavit if any and the appellant would also have an opportunity to file an affidavit-in-reply, if any. The application would then be heard and disposed of in accordance with law. This decision was of a Division Bench of this Court presided over by G. N. Das and Debabrata Mookerjee, JJ. In a later decision of this Court reported in : AIR1958Cal559 , Bharatendra Nath Bhattacharya v. Commr. of income-tax, West Bengal Chakravarti C. J. and Lahiri J. in allowing an appeal from an order of the learned trialJudge dismissing an application under Article 226 of the Constitution in limine, made the following order:

'Let a Rule issue on the respondents to show cause why respondent No. 1 should not certify to this Court the record of the proceedings in which the order for reversion, dated the 19th June, 1953, was passed against the appellant and why the said order and also if necessary, the orders passed in appeals therefrom, should not be quashed, or such further or other order passed as may seem to the Court fit and proper. The Rule wilt be returnable in four weeks before the learned Judge taking applications under Article 226 of the Constitution. The costs of this appeal will be costs in- the Rule.'

9. In a still later decision of this Court reported in 60 Cal WN 1042, Kanai Lal Sethi v. Collector of Land Customs, Calcutta, Chakravartti C. J. made observations to the following effect:

'In the form in which it was taken, Mr. Banerjee's objection might not be wholly fatal because the present appeal is from the summary rejection of the appellant's application. If it succeeded the Court would any direct the issue of a Rule and the appellant might at that stage apply for addition of parties.'

10. Our attention was also drawn to a decision of the Supreme Court reported in S. : AIR1957SC354 , British India Corporation Ltd. v. Industrial Tribunal, Punjab. In this case certain industrial disputes arose between the management of a certain mil! and the workers of that mill and these disputes which arose from time to terms were referred by the Government for adjudication to the Industrial Tribunal under three references. The tribunal thereupon issued notice to the management of the mill to file its written statement. The management thereupon tiled a petition under Article 226 of the Constitution for a Writ of prohibition against the Tribunal and a Writ of Mandamus against the Government. The case of the petitioner was that the items which were referred to the industrial Tribunal for adjudication by the three references made by the Government were really identical and were covered by the first and second reference which had been made by the Government and as the Tribunal had already adjudicated upon the items which were covered by the first and second reference, the third reference was incompetent and the Tribunal had no jurisdiction to entertain this third reference. There was also allegation Of mala fides on the part of the Government. The High Court before whom the application under Article 226 had bean made, dismissed the petition in limine basing its decision only on a comparison of the relative items of the third reference. It was held by the Supreme Court that in view of the fact that there was allegation of mala fides on the part of the Govt. and in view of the case of the petitioner the terms of items of the third reference were identical with those of the second reference, it was the duty of the High Court to give a hearing to the parties after issuing notice to the respondent and to record Its decision after considering all the circumstances of the case brought to its notice. The High Court adopted a course which prevented the pariies from presenting their respective cases before it, and dismissed the petition in limine. But the High Court was not justified in doing so. In the circumstances the Supreme Court remanded the case to the Punjab High Court with the following observations :

'We are therefore constrained to remand the matter beach to the Punjab High Court for a direction that it will Issue notices to the respondents and will determine the matter after hearing both the parties and considering theirstatements and evidences, if any adduced by them before It'.

The Supreme Court also indicated the points on which the High Court should concentrate and come to a determination.

11. It is to be noted that in none of these cases any question was pointedly raised by the learned counsel appearing for the respondents to the effect that the scope of an appeal from an order under Article 226 of the Constitution dismissing an application for issue of a Rule Nisi is only to consider the question whether a Rule Nisi should be issued or net and if the appellate Court is of the opinion that a case for a Rule Nisi has been made out it should do no more than remit the case to the trial Court for dealing with the proceeding under Article 226 ot the Constitution after opportunity has been given to the respondents to file affidavits showing cause to the Rule Nisi and after giving the respondent an opportunity to contest the application of the petitioner. In all these three Calcutta cases notice of appeal had been served on the respondents and it is after hearing both parties that the learned Judges of the Division Bench thought fit to make the order in the form already stated. In none of the cases did any question arise as to whether pending disposal of the appeal ths appellant could be granted any interim relief on the ground that if such interim relief was not granted the appeal would become infructuous.

12. Reference was also made by the learned counsel for the parties to certain rules framed by this Court relating to application under Article 226 of the Constitution, Rule 24 is as follows :

'All applications under Article 226 of the Constitution shall, subject to any direction of the Chief Justice, be made before a Judge on the Original Side taking interlocutory applications or such other Judge as the Chief Justice may appoint'.

Rule 25 provides : --

'Unless otherwise ordered by the Court all applications for a Rule Nisi shall be made ex parte in the first instance, before the Court on such day or days and at such time or times as is fixed by the Court'.

Rule 26 is as follows :

'The Court hearing such applications may issue a Rule Nisi or summarily reject the application or make such order thereupon as it thinks fit. Rule Nisi shall be drawn up as far as may be in model form set out in Annexure 1.' The next relevant rule is Rule 43 which is as follows :

'Appeals from final orders in this jurisdiction shall be made in the same manner as appeals from original orders in the Original Side and appeals from orders in the Appellate Side, according as they arise out of 'Original Side' and 'Appellate Side' applications and all Rules applicable thereto in the Rules of the Original and Appellate Side respectively, shall apply thereto mutatis mutandis'.

13. It is pointed out with reference to these Rules that as an appeal is only a continuation of the original proceeding before the trial Court, the powers of the appellate Court in regard to an appeal from an order summarily rejecting an application under Article 226 of the Constitution and refusing to issue a Rule Nisi are confined to the consideration of the only question whether a Rule Nisi should be issued or not and for this purpose the appellate Court should also proceed to hear the appeal ex parte an deckle for itself whether a prima facie case for a RuleNisi has been made out on the petition or not, and In the event of its coming to the conclusion that a case for Rule Nisi had been made out the appellate Court should remit the case to the trial Court with appropriate directions for filing of affidavits by the respondents and for affording proper opportunities to the respondent to contest the application of the petitioner. It appears to us that this contention of the respondents cannot be accepted. The wordings of Rule 26 make it quite clear that apart from the power of issuing a Rule Nisi or summarily rejecting the application, the trial Court is also given power of making such order upon the application as it thinks fit unlike Rule 9 of Order 35 of the Supreme Court Rules to which our attention has been drawn and which limits the power of the Supreme Court in application under Article 32 of the Constitution to grant interim relief only after it decides to issue a Rule Nisi in such application. Rule 26 of the Rules of this High Court confers a wider power or discretion upon the trial Court. The trial Court can make any order as it thinks fit in the ends of justice, in an application under Article 226 of the Constitution, and if an appeal is nothing but a continuation of the original proceeding there is no reason why the same wide power as is vested in the trial Court cannot be exercised by the appellate Court. Moreover it is clear from the terms of Rule 43 of the High Court Rules that In at appeal from an order under Article 226 of the Constitution, the Rules of the Original Side and of the Appellate Side in relation to appeals shall apply to the appeals preferred from the orders under Article 226 of the Constitution accordingly as the application was made in the Original Side or in the Appellate Side. The appeal before us being an appeal from an order made on the Original Side of this Court it is difficult to see why the Rules relating to appeals on the Original Side should not apply to this case. Rules 8 and 9 of Chapter 31 of the Original Side make it clear that a notice of appeal is to be taken out and served on the respondent and as such Rules are of universal application and have to be observed whether the appeal is from an ex parte order or from an order made on contest, we see no reason why this rule of service of notice of appeal should not be observed also in the case of an appeal preferred from an order summarily rejecting an ex parte application for a Rule Nisi under Article 226 of the Constitution. It is, therefore, clear from the Rules relating to Article 226 of the Constitution as also from decided cases to which reference has already been made that appeals from orders under Article 226 of the Constitution dismissing an application in limine have to be heard upon notice being served and not ex parte as is suggested. It is also clear that the powers given to the trial Court under Rule 26 of the Rules of this High Court relating to Article 225 of the Constitution are much wider than the power given to the Supreme Court relating to an application under Article 32 and there can be no question that the appellate Court is also vested with such wide power. Moreover, it is quite clear that the provisions of the Civil Procedure Code relating to appeals including the provisions under Order 41, Rule 5 of the Civil Procedure Code are applicable in the case of appeals under Article 226 of the Constitution. There Is nothing in 0. 49 of the Civil Procedure Code to suggest that Order 41, Rule 5 of the Code is not applicable in the case of chartered High Courts. On the other hand, the provisions of CIause 37 of the Letters Patent indicate that the provisions of the Civil Procedure Code unless expressly excluded under any law, are applicable to this High Court. Thus it becomes difficult for us to hold that this Appeal Court hasno power to grant by interim relief in an appeal under Article 226 of the Constitution from an order summarily rejecting an application and refusing to issue a Rule Nisi.

14. Strong reliance is placed on behalf of the respondent on the decision of the Supreme Court reported in : [1952]1SCR28 , State of Orissa v. Madan Gopal for the purpose of showing the scope of an application under Article 226 of the Constitution and it was argued that the Supreme Court has expressly laid down that if the Court exercising jurisdiction under Article 226 of the Constitution decides not to grant the substantive or main relief asked for in the application under Article 226 it has no power to, grant any ancillary or interim relief to the petitioner concerned. In this case the Government of Orissa had passed an order cancelling certain temporary permits to work the mines and directed the permit holders to remove their assets appertaining to respective mines within a fortnight. The permit holders thereupon filed petitions before the Orissa High Court under Article 226 of the Constitution praying for rules of directions in the nature of Mandamus against the State of Orissa directing them to withdraw the notices of cancellation. The High Court declined to investigate and pronounce on the rights of the parties and expressly kept the determination of the rights in abeyance in the suit proposed to be filed by the permit holders but hem that at the moment the permit holders had no alternative legal remedy, equally convenient, beneficial and effectual because the permit holders could not file a suit till after the expiry of the period of 60 days as required under Section 80 of the Civil Procedure Code and unless protected by the Court in the meanwhile the permit holders would undergo Irreparable and irremediable loss of possession of the mining leases involving a huge waste of labour, machinery and other resources. The High Court passed an order that till three months from the date of the order or one week after the institution of the contemplated suit, whichever was earlier, the Government of the State of Orissa should refrain from disturbing the permit holder's possession over the mining areas in question and that thereafter the order would cease to have effect. Upon an appeal taken tefore the Supreme Court it was held that an interim relief can be granted only in aid of and ancillary to the main relief which may be available to the party and penning final determination of his rights in a suit or proceeding. If the High Court of Orissa was of opinion that there was no other convenient or adequate remedy open to the petitioners permit holders. it might have proceeded to investigate the case on its merits and come to a decision as to whether the petitioner succeeded in establishing that there was an infringement OT any of their legal rights which entitled them to a writ of mandamus or any other direction of a like nature and pending such determination it might have made a suitable interim order for maintaining the status quo ante. But when the Court declined to decide on the rights of the parties and expressly held that they should be investigated more properly in a civil suit, it could not, for the purpose of facilitating the institution of such suit, Issue directions in the nature of temporary Injunctions under Article 226 of the Constitution. The language of Article 226 does not permit such an action. The directions that had been given by the High Court were really to circumvent the provisions of Section 80 of the Civil Procedure Code.

15. It will thus appear from the Judgment of theSupreme Court that in an application under Article 226 ofthe Constitution the Court, has power to grant Interim re-lief pending determination of the rights of the parties Involved in the proceeding. If the Court decides not to enter into an investigation Into the merits of the casa or to determine the rights of the parties in the proceeding under Article 226 which is before them, it has no power to grant interim relief for the purpose of facilitating the filing of a suit or any other proceeding, by the petitioner. This decision of the Supreme Court, therefore, does not militate against the principle that pending determination of the rights of the parties in a proceeding under Article 226 of the Constitution the Court has power to make a suitable interim order for maintaining the status quo ante,

16. With regard to the question whether the appellate Court's power is limited only to the consideration of the question whether a Rule Nisi should issue or not and to remit the case to the lower Court in the event of its coming to the conclusion that a case for a Rule Nisi had been made out, it is to be observed that such limitation or restriction on the power of the appellate Court is not warranted. There may be cases in which the appellate Court may consider it desirable and proper to dispose of the proceeding under Article 226 of the Constitution finally at the appellate stage without sending the case back for disposal by the trial Court. To take an example if an application under Article 226 is made for challenging the legality of an act on the ground that the provisions of a statute pursuant to which the action is taken are ultra vires and that is the sole ground on which the application is based and the trial Court after hearing the petitioner on the question dismisses the application in limine and refuses to issue a Rule Nisi and the petitioner prefers an appeal against the order of dismissal, can it be said that the appellate Court is bound to remand the case to the trial Court if it is satisfied that there is substance in the contention of the appellant? The answer, in my view, must be in the negative. No investigation into any question of fact is necessary in such a case and no filing of affidavit setting out any fact may be called for in such 3 case. The only question for determination before the appellate Court in such a case is a question of law and there is therefore no reason why the appellate Court cannot dispose of the proceeding under Article 226 finally instead of sending the case back for disposal by the trial Court and driving the parties to incurring of further unnecessary costs. It is true that when question of facts are to be gone into and it is necessary to give an opportunity to the respondents to meet the allegations contained in the petition, the Court may think it fit to remit the case to the trial Court with directions for giving an opportunity to the respondents and for filing of affidavits but I do not think any hard and fast rule can be laid down that in each and every case of an appeal from an order summarily rejecting an application under Article 226, the Appellate Court is bound to remit the case for disposal by the trial Court.

17. In the result the appeal is allowed and the order of the learned trial Judge is set aside. We direct that a Rule Nisi do issue in this case and the learned trial Judge taking matters under Article 226 of the Constitution do give direction for service of notice to show cause upon the respondent opposite parties and after giving opportunity to the parties to file affidavits determine the case on the materials placed before him.

18. The interim injunction granted by this Court will continue pending disposal of the proceeding by the trial Court provided the appellant deposits with his solicitor a sum of Rs. 5,000/- within ten days from date. Such sum is to be held by the Solicitor free from any lien and sub-ject to further order of the Court. In default of the amount of Rs. 5,000/- being deposited within the aforesaid period of ten days from date, the interim order will stand vacated. Costs of the appeal and of the application for injunction to abide the result of the proceeding before the trial Court.

Debabrata Mookerjee, J.

19. I agree. In view of the importance of the question raised I wish to add a few words.

20. The appellant Mahadeo Prosad. Saraf is the Proprietor of Naiain Timber Works carrying on business in the sale and purchase of various kinds of timber and wood. He entered into a contract with the Scindia Steam Mavigation Co., Ltd., for the purpose of unserviceable Dunnage Wood carried by ships belonging to the company. Under a Customs notification dated October 20, i960 Dunnage Wood could be imported only by the steamer Agents and all formalities in that behalf were required to be complied with by them. The appellant was offered 15 tons of Dunnage Wood to be cleared from the company's steamer 's. s. Jalakirti' which reached the Calputta Port on October 5, 'l961. The company submitted a guarantee with the Customs authorities requesting discharge of the said 15 tons of wood and asked for permission to shift the same to 'G' berth in King George's Deol' The guarantee was accepted by the Customs and the steamer Agent was permitted to discharge the wood into a cargo boat under the supervision of officers of the Customs. After the consignment had been landed from the cargo boat at 'G' berth, the Customs Appraiser examined it for the purpose of levy of duty. On October 11, 1961 the Bill of Entry in respect of the wood was filed by the steamer Agent and the duty assessed thereupon was duly paid. The Bill of Entry showed that the goods were covered by a valid import licence which bore date October 20, 1961. The appellant thereafter paid on November 1, 1961 a sum of Rs. 1140/- as the purchase price of the said 15 tons of wood and received the delivery order for the same. The wood stocked, at 'G' berth, was marked off with grey paint in accordance with the Customs' rules.

21. On November 1, 1951 a notice was issued by the Assistant Collector of Customs and Superintendent, Preventive Service and served upon the appellant alleging that besides the said 15 tons of Dunnage wood, certain other quantities had also been unloaded from the said steamer a part of which had been removed in a truck. The notice further stated that the appellant's firm Narain Timber Works, the purchaser of the aforesaid 15 tons of wood, had been instrumental in off loading the excess quantity in contravention of the provisions of Section 19 of the Sea Customs Act and as such the firm was deemed to be a person concerned within the meaning of Section 16781. and as such it was liable to penal action under Section 1673. , 8. and 29. of the said Act. Accordingly, the appellant's firm was directed to show cause within seven days why the action proposed to be taken against it should not be taken.

22. In obedience to the notice the appellant showed cause and stated that the said 15 tons of Dunnage Wood had been validty imported, properly appraised and the duty upon it paid. The firm had nothing whatever to do with the unloading of any other quantity of Dunnage wood or its removal. The appellant was given 3 personal hearing and prior thereto had been offered inspection of certain statements alleged to have been made by the Majhis and Dandis of the cargo boat in which the wood had been carried from the ship and landed at 'G' berth of the Kidderpore Dock. Those statements wers said to have been the basis of the notice requiring the appellant's firm to show cause against the action proposed, to be taken against it by the Customs.

23. According to the appellant, one of the Majhis called Sathu Majhi had approached him before the hearing took place and made a statement to which he subscribed by putting his thumb mark to the effect that he had been threatened, coerced and coaxed by officers of Customs to make a false statement which was the basis of the said notice. At the personal hearing before the Additional Collector of Customs the appellant relied upon this statement of the aforesaid Majhi; but when the latter was called to give evidence, he went completely back upon it and said that he had not made arty statement whatever to the appellant but had merely put his thumb mark on a blank piece of paper. He added that be had not been compelled or coaxed into making any statement to the Customs' officers and that what he has staled before them was the whole truth.

24. The case is that directly the said Majhi went back upon his earlier statement, the appellant asked for further personal hearing in order to be able to produce evidence to prove that the Majhi had in fact made that statement upon which the appellant sought to rely and in order further that the Customs' Officers under whose supervision the consignment of Dunnage wood had been discharged might be summoned to give evidence. The hearing was adjourned whereafter the request was repeated for enabling further evidence as indicated to be received. This request was eventually not acceded to and the Additional Collector of Customs made an order on May 1, 1932 which is now under challenge whereby the 15 tons of Dunnage wood belonging to the appellant which had meanwhile been seized by the Customs were directed to be confiscated under Section 167 8. of the Sea Customs Act read with Section 3 2. of the Import and Export Control. Act, 1947. It was however, ordered that if the appellant's firm paid a fine of Rs. 6,000/-, the seized wood would be released to the firm in lieu of confiscation. A personal penalty of Rs. 4000/- under Section 167 8. and Rs. 1000/-under Section 167 3. of the Sea Customs Act was also imposed on the firm. In the event of the Dunnage wood not being released in terms of the order within a fortnight thereof, the same was directed to be disposed of by the Customs authorities without further notice to any one concerned.

25. The Respondent Additional Collector of Customs gave reasons for accepting the statements of the Majhi originally made to two officers of Customs and for declining to grant further hearing to the appellants firm in order to enable additional evidence to be produced at its instance. He found for a fact that the total quantity of wood discharged from the vessel was about 30 tons besides a truck load removed from the Dock. He further held that the appellant's firm, the Master of the vessel as well as the Scindia Steam Navigation Co., Ltd. were severally and jointly responsible for the off-loading of Dunnage wood in excess of the 15 tons covered by the guarantee, and as such all of them were persons concerned in the illegal importation, of more than 15 tons of wood. He negatived the firm's contention that it had no interest in any quantity of Dunnage wood in excess of theaforesaid 15 tons and observed that he was unable 'to treat the landing and importation of 15 tons of Dunnage wood as an act or operation independent of and unconnected with the landing of the rest of about 30 tons of Dunnage wood'.

26. On June 7, 1962 the appellants applied under Article 226 of the Constitution for a Writ in the nature of Certiorari quashing the said order of the Additional Collector of Customs, a Writ in the nature of Mandamus directing recall, cancellation or withdrawal of the said order and for injunction and other ancillary reliefs. The application was, however, summarily dismissed by Banerjee, J.

27. As against the said order of summary dismissal the appellant preferred an appeal and in accordance with the rules of the Court and its practice, took out a notice of motion and served the same on the respondents including the Additional Collector of Customs notifying that the appellant intended to move the Court lor orders to file the Memorandum of Appeal without a certified copy of the order appealed from, upon the undertaking to file the same as soon as obtained and for interim injunction restraining the respondent Customs, their servants and agents from taking any action under the order of May 1, 1962 pending disposal of the appeal.

28. On June 12, 1962 the application was heard by this Bench and leave was given to file the memorandum of appeal as prayed for and an interim injunction was granted restraining the officers of Customs, the respondents herein, their servants and agents from taking any step under or giving effect to the order of May 1, 1962 pending disposal of the application which was made returnable on a stated dale.

29. The main grounds upon which the appeal has been preferred relate to the violation of the principles of natural justice based upon the alleged denial of adequate opportunity to the appellant to produce evidence in support of the case made and to the complaint that on the proved facts the order was perverse inasmuch as it illegally and without jurisdiction prevented appropriation by the appellant's firm of the 15 tons of Dunnage wood the importation of which had been covered by licence and in respect of which the requisite Customs duty had been paid.

30. In view of the order proposed in which I concur, it would not be right to express a final opinion on any of the questions of fact or law raised in the appeal; accordingly any expression of opinion on the merits if and when made, is to be taken with the qualification that it is entirely tentative for the purpose of the proposed order.

31. At the hearing before us Mr. Kar on behalf ot the Respondent Customs raised a preliminary objection that the application under Article 226 having been dismissed by the learned Judge in limine without a judgment being delivered, it was impossible for the Customs to give their version of the facts involved in the application made by notice of motion or in the appeal. In order to shorten the proceedings and to enable fuller consideration of the rival contentions of the parties in this regard, the appeal itself was directed to be heard and the preparation of paper boohs was dispensed with. At the hearing of the appeal Mr. Kar repeated his objection and contended that there was hardly anything to answer so far as the facts were concerned since a Rule Nisi had not been issued fay the trial Judge and the Customs had not been given any opportunity to expose their version ot the case. Asa matter of fact no affidavit-in-opposition was actually used at the hearing, despite our invitation to Mr. Kar to give the facts if he so desired. He declined to do so on the ground that in absence of a Rule Nisi the Customs could not be called upon to disclose their case for the first time in appeal. He accordingly objected to our dealing with the facts and insisted upon our disposing of the appeal, if we so chose, without hearing the Customs on the facts offering at the same time to give us bis assistance in dealing with any question of law that might arise for the Court's consideration. The position taken by Mr. Kar appeared to be that while this Court sitting in appeal might, if it thought proper, order a remand to the trial Court and if that Court issued a Rule Nisi, it would then and not before then, require disclosure ot the facts upon which the Customs relied in support oi the order of confiscation and personal penalty made by the Additional Collector which is now under appeal. Upon our reminding him that the appeal being an appeal from an order of summary dismissal, the whole of the matter raised by the Writ application was at large before the appellate Court upon notice to the Respondent Customs, there was nothing to prevent them from disclosing the facts upon which they relied. Mr. Kar still pursued the preliminary objection and appeared to suggest that the Court was not entitled to ask for the Customs' version of the facts in the absence of a Rule Nisi initially issued by the trial Judge. According to Mr. Kar, there was nothing to answer since no Rule Nisi had been issued and the notice of appeal could not be held a substitute for such Rule.

32. The argument was that whatever may be the powers of the appellate Court in other matters, in Writ appeals the powers are limited by the Rules regulatiny, distribution of the Court's business in Writ applications which gave only to a Judge sitting singly the power to issue a Rule Nisi requiring the Respondent to disclose his facts and answer the Rule. That power could in no event be exercised by the appellate court.

33. Having heard counsel on both sides on the preliminary objection I have no hesitation to say that it is without substance and must be overruled. A reference to the rules of the court relating to applications under Article 226 would at once demonstrate the untenability ot the preliminary objection. Rule 26 of the Writ Rales says that a Court hearing an application under Article 226 may issue a Rule Nisi or summarily reject the application or make such order thereupon as it thinks fit. Rule 3D provides that in respect of 'Original Side' applications the Rules of the Original Side relating to Interlocutory applications and in respect of the 'Appellate Side', the Rules of the Appellate Side relating to Civil Revisions shall apply mutatis mutandis in respect of matters relating to, inter alia, the drawing up of interlocutory orders and Rule Nisi, the service of all orders upon the respondent, appointment of next friend or guardian-ad-litem the making of Interlocutory applications and any matter not expressly covered by the Rules. Then follow Rule 43 governing appeals. It says : --

'43. Appeals from final orders in this jurisdiction shall be made in the same manner as appeals from original orders in the Original Side and appeals from orders in the Appellate Side according as they arise out of 'Original Side' and 'Appellate Side' applications and all rules applicable thereto in the rules of the Original and Appellate Side, respectively, shall apply thereto Mutatis Mutandis',

34. It is thus plain that the Original Side Rulesregulating appeals from Original orders on that Side areapplicable. Chapter 31 of the Original Side Rules contains the provisions governing appeals from the judgmentof a Judge sitting on the Original Side. Rule 2 provides that every Memorandum of Appeal from the Original Side shall be in form No. 1 and shall be drawn up in the manner prescribed by Order XLI, Rule 1 of the Code of Civil Procedure and shall be presented to the Registrar accompanied by a copy of the decree or order appealedfrom. Rule 8 speaks of the notice of appeal and Rule 9 prescribes the form of return of such notice. Thus, the rules provide that an appeal has to be disposed upon notice to the respondent. The obvious purpose of such notice is to enable the respondent who is the party affected by it to exhibit to the Court the grounds upon which he opposes the appeal. Apart from the rules, it is only elementary that a party who may be adversely affected by any kind of proceeding should be heard in the proceeding.

35. Clause 37 of the Letters Patent gives power tothe High Court to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before it. The proviso attached to the clause directs that the High Court should be guided inmaking such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure and the provisions of any law amending or altering the same by competent legislative authority. Again Section 129 of the Code of Civil Procedure says that notwithstanding anything in that Cede, the High Court may make such rules, notinconsistent with the Letters Patent establishing it to regulate its owns procedure in the exercise of its Original Civil Jurisdiction as it shall think fit. Thus the Rules of the Court governing appeals from orders make the issue of notice incumbent on the respondent. That is also the requirement of the Code to which I need not advert forthe reason that where the Rules exist the Code does not appty.

36. It is a well known proposition that there must be a specific Rule on the Original Side to justify exclusion of particuluar rules contained in the Code. Indeed, Order XLIX Rule 3 sets out the relevant rules and orders.which have no application to proceedings on. the OriginalSide of the Court. A reference to Order XLIX shows that except Rule 35 of Order XLI, the rest of the rules contained in the latter order apply to Original Side appeals. It ts to be recoleted Rule 5 is one of the Rules contained in Order XLI which gives power to the appellate Court to stay execution of the decrees and orders appealed from. This meets the Customs' objection that this Court had no power to direct stay of operation of the order of the Additional Collector of Customs. Section 107 of the Code which applies to all appeals on the Original Side defines the powers of the appellate Court, and Sub-section (2). thereof provides that the appellate Court shall have thesame powers and shall perform as nearly as may be the same duties as are conferred upon and imposed by theCode on the court of Original Jurisdiction in respect of suits instituted therein. The sub-section is instructive and it completely answers Mr. Kar's objection that the appellate Court cannot call upon the respondent Customs to disclose the facts upon which they rely in support of the order of confiscation and penalty made by the AdditionalCollector of Customs. If the trial Court had thepower to require the Respondents by Rule Nisi to answer, and the power thereafter to make the Rule absolute ifthe Respondents failed to answer or made insufficientanswer or false answer, the appellate Court must be held to possess the same powers and to be charged with the same duties as were conferred and imposed on the trial Court. After all an appeal is a continuation of the Original proceeding. Indeed, the decisions in the books have gone to the extent of laying down that the appellate Court has the same powers and duties as the Court of first instance, including the power to give leave to withdraw from a suit or the power to order rejection of memorandum of appeal on the basis or analogy of the provision contained in Order 7 Rule 13. It seems to me that an ex parte order of dismissal of application is as much a decision as any made at a hearing in the presence of the parties, the proponent and the opponent. If in an appeal from a decision on contest, all questions relative to the controversy between the parties can be decided, there is nothing in law which prevents as complete and effectual a decison in an appeal from an ex parte order of dismissal, decided upon notice to all concerned.

37. At one stage of the argument Mr. Kar attempted to say that whatever may be the provision contained in the Code or the Rules of the Original Side, the writ rules of the Court governing applications under Article 226 and appeals from orders made therein, would alone be relevant in determining the procedure or writ appeals. It has not been easy to appreciate this contention inasmuch as the text of R. 43 itself plainly attracts application of the Original Side Rules which expressly provide for the service of notice on the respondent to an appeal. The objection raised that the Customs authorities wire not liable to be called upon in these proceedings to exhibit to the court the grounds upon which the appeal should be opposed appears to be clearly answered. When the relevant Rules require service of notice on the respondent, they must be held to so require to enable him to comes the appeal and it becomes his duly to exhibit to the appellate court the grounds upon which he relies to resist to the appeal. In my view, there is nothing in the writ rules to encourage the view that in an appeal from an order of summary dismissal of a writ application, the respondent in such appeal can choose at will to maintain a silence and insist upon a Rule Nisi being first issued by the trial court before he elects to break the silence and then, to enter the fray. If he does it, he must, I think, do so at his own peril. I have no hesitation in saying that the preliminary objection raised by Mr. Kar has no substance and it must be overruled.

38. Turning to the merits of the appeal It seems reasonably plain that there are disputed questions of fact which required fuller consideration by the learned trial Judge. The appellant's contentions to which I have alluded taken before the trial Judge and repeated in appeal before us, show that, at any rate, they were not fit to be thrown out at sight. Apart from the complaint that there was violation of the principles of natural justice occasioned by the refusal of the Additional Collector of Customs to give further opportunity of adducing evidence in support of the case made by the appellant, there is material to indicate that the 15 tons of Dunnage wood covered by a valid import licence and in respect of which the guarantee had been filed and the Custom's duty paid, were seized and confiscated. The appellant's contention that such seizure and confiscation was illegal and without jurisdiction raises a serious question requiring a more patient and fuller consideration. That question assumes a wider aspect in view of the finding of the Additional Collector of Customs to the effect that since the appellant'sfirm appeared to have been one of the persons concerned in illegally importing other Dunnage wood, the 15 tons though covered by licence and duty-paid were yet liable to be confiscated. This finding would imply that a rightful owner can be penalised upon proof of complicity in any illegal importation and incurs forfeiture of goods admittedly duty-paid and imported against valid licence. Prima facie this raises the question whether the taint of illgotten goods affects and extends even, to goods duty-paid and validly imported. That I consider to be a serious question which deserved fuller consideration than could possibly have been given to it by an order of summary dismissal.

39. The Court's power to ordsr a remand in a Writ appeal has been considered in several cases. In the case of : AIR1954Cal60 the court was called upon to decide whether an order of summary dismissal of a Writ petition had been properly made. It was a decision rendered by G. N. Das, J. with whom I had the privilege of being associated. It was held that where the contentions raised Involve an enquiry into questions of fact and of law the proper course would be to call upon the respondents to show cause why the order complained of should not be set aside. Accordingly, the case was remanded with the direction to Issue notice requiring the respondents to appear and show cause. The parties' were directed to be given opportunity to file affidavits before the trial court. A similar course was adopted in : AIR1958Cal559 where It was held by Chakravartti C. S. that if the application under Article 226 did not desserve to be thrown out at sight and there was matter to enquire into and Investigate, the appellate court would interfere by setting aside the summary order of dismissal. A Rule was accordingly directed to Issue requiring the respondents in that case to certify to the court the record of the proceedings In which the order complained of had been made and to show cause why the said order should not be quashed or such order or further order made as might seem to the trial court fit end proper. The Rule thus issued was made returnable before the learned Judge then taking applications under Article 226 of the Constitution. Indeed, the Supreme Court took the same course in S. : AIR1957SC354 . That was a case of industrial dispute between the management of a certain mill and its workers. The High Court bad dismissed the petition In limine without giving an opportunity to contest the allegation of mala fides on the part of the Government. The order of summary dismissal was set aside and the matter remanded to the High Court with the direction to determine it after giving notice to the respondents.

40. In my view the powers of the appellate Court in dealing with a writ appeal are in no way circumscribed by the writ Rules. These Rules are purely procedural; they do not have the effect of limiting or enlarging the Court's power to dealing with and disposing of appeals. That power Is defined elsewhere; It is to be found in the Code which by Section 107 gives the appellate Court the power, Inter alia, to determine a case finally or to remand it for further consideration. It is always for the appellate Court to decide what form the interference will take in a given case. In my opinion there is nothing to prevent the appellate Court from determining finally an appeal from an order of summary rejection, of a writ petition if no further in-ivestlgation is called for. I do not think, however, the present appeal fulfils that test particularly In view of the Customs' contention that the documents exhibited by the appellant himself suggest that even the Importation of the 15 tons of Dunnage wood had not been lawfully made. Thatraised questions of fact which I think can best be investigated upon the case being remitted to the trial court.

41. The appeal succeeds and I concur in the orderproposed by my lord the Chief Justice.


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