TMI Blog2023 (10) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... cement of special provisions consideration and adjudication of declaration of title is not barred by any of the statues. Whether the original Plaintiffs were the owner of the articles and goods set out respectively in Schedule A , B and C of the plaint? - whether the goods wherein possession of Plaintiff no. 1 and the Plaintiff no. 2 at the time of seizure? - HELD THAT:- Law is well-settled. Section 101 of the Indian Evidence Act provides for burden of proof and on whom such burden of proof lies. Section 102 states that burden of proof should in a proceeding lies on that person who will fail if no evidence is at all given on either side. Section 106 is also relevant to consider in this context. According to the Section 106 when any fact is specially within the knowledge of any person burden of proof of that fact is upon him. The statute never states that any specific or particular kind of evidence is to be tendered to discharge burden of proof - Once the burden of proof is discharged by the Plaintiffs to adduce evidence to substantiate their claims, onus of proof shifts on the Defendants. DW1 Shankar Ghosh stated in evidence that diamond, watches and gold ornaments were s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bajoria; the original Plaintiff no. 2 was the wife of Late Shambhu Prasad Bajoria and the original Plaintiff no. 3 was wife of Late Kishan Prasad Sekhsaria and mother of the original Plaintiff no. 1. The Plaintiff no. 1 and 2 were residents of 1- B, Halwasia Road, Kolkata and the original Plaintiff no. 3 was resident of 60/2 Babulal Lane, Kolkata. On 18th and 19th May, 1956 the Defendant no. 1, the Union of India through its servants and agents lead by the Defendant no. 2 broke open and entered into the rooms of the Plaintiff no. 1 and 2 in the premises no. 1B, Halwasia Road, Kolkata and seized and carried away gods and articles as detailed in schedule A , B and C of the plaint. The Plaintiff no. 1 and 2 were present. They protested seizure and carrying away of goods by the Defendant no. 2 and other servants and agents of the Defendant no. 1, Union of India. The goods belonging to the Plaintiff no. 3 was kept in the safe custody of the Plaintiff no. 1. The Defendant no. 6 also protested against the said seizure. It is further averred in the plaint that after such seizure the customs authorities continued to detain goods, save and except the Defendant no. 3 purported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 1956, the original Defendant no. 6 along with others appeared before the Defendant no. 3 for examination of the goods when the original Defendant no. 6 made certain submissions as owner of the articles. On or about 10th July 1956, a memorandum was issued to the original Defendant no. 6 to show cause why action should not be taken to confiscate the goods in case of failure to give satisfactory evidence that the articles were legally imported into the country. In the said show-cause memorandum, in the light of submissions made by the original Defendant no. 6, benefit of doubt was expressed in respect of the articles mentioned in Schedule D of the plaint. These articles were ordered to be released. But the order of release could not be given effect to as, in the meanwhile, order of attachment in execution dated 29th may 1956 was received from the Certificate Officer and Additional District Magistrate, 24 Parganas, Calcutta and from the Income Tax Authorities prohibiting release of any jewellery or other articles seized from the original Defendant no. 6. It is the case of the present answering Defendant no. 1 4 that the original Defendant no. 6 was the owner of the articles who a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax. The articles mentioned in Schedule A , B and C of the plaint belonged to the original Plaintiffs absolutely and that decree, as prayed for in the plaint, might be passed against the original Defendant no. 1 5. On the basis of the rival pleadings of the parties and after hearing the Counsels the following issues were framed: 1(a) Are the Plaintiff no. 1, 2 and 3 are the owners of the goods set out respectively in Schedule A , B and C of the plaint? (b) Were the goods in possession of the Plaintiff no. 1 and the Plaintiff no. 2 at the time of seizure in suit? 2. Were the proceedings for search and seizure contrary to (a) law (b) procedure applicable thereto? 3(a) Did the Plaintiff no. 1 or Plaintiff no. 2 protest against any (i) alleged trespass or (ii) seizure or (iii) carrying of the goods as alleged in the plaint? (b)(i) Were the goods belonging to Plaintiff no. 3 kept for safe custody with Plaintiff no. 1? (ii) Did the Plaintiff no. 1 protest in respect of such goods? 4. Did the Defendant no. 3 maliciously or wrongfully fail or refuse to release the goods in Schedule D of the plaint? 5. Have the Plaintiffs been wrong ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red along with the Issue no. 9 as well as the Issue no. 12. Issue no. 9 is whether the suit is maintainable under the Sea Customs Act, 1878. Mr. Roy argued that the instant suit was filed for declaration of title along with other reliefs. Authorities under the Sea Customs Act, 1878 is not bestowed with the power to adjudicate title of the properties. That adjudication can be made only by a Civil Court. Referring to the decision of a connected suit Manton Company Limited vs. Union of India [(1984) 18 ELT 753] Mr. Roy submitted that in that suit the Single Bench held that neither under the Sea Customs Act nor under the Income Tax Act title of the properties can be decided. In that suit the Single Bench of this Court held that Civil Court has the jurisdiction to decide on and pass declaratory decree on the ownership of the properties. Per contra, the Learned Counsel for the Defendant no. 1 5 argued that decision of Manton Company Limited (supra) has no application in this case in view of a recent judgment of the Hon ble Supreme Court of India in Additional Director General of Central Excise Vs. Kiran Machines [2015 (325) E.L.T. 469 (SC)] where the Apex Court held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emedy different from the remedy which existed at common law: there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy: there, the party can only proceed by action at common law. But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed and it is not competent to the party to pursue the course applicable to cases of the second class. Referring to judicial precedents, point of law was summed up as follows: 35. Neither of the two cases of Firm of Illuri Subayya or Kamla Mills can be said to run counter to the series of cases earlier noticed. The result of this inquiry into the diverse views expressed in this Court may be stated as follows: (1) Where the statute gives a finality to the orders of the special Tribunals the civil courts' jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adily to be inferred unless the conditions above set down apply. In a subsequent case before the three Judges Bench of the Supreme Court of India in Rajasthan State Road Transport Corporation Anr. Vs. Bal Mukund Bairwa [(2009) 4 SCC 299], the question arose was jurisdiction of labour court vis- -vis civil court in adjudication of employer-employee disputes. Resolving the apparent conflict between Krishna Kant s case [(1995) 5 SCC 75] and Khadarmal s case [(2006) 1 SCC 54] it was held that jurisdiction of the Civil Court is not completely ousted. The Apex Court decided that it is well-settled that there is a presumption that a civil court will have a jurisdiction and the ouster of civil court s jurisdiction is not to be readily inferred. A person taking a plea contra must establish the same. Even in a case where the jurisdiction of civil court is sought to be barred under a statute, the civil court can exercise jurisdiction in respect of some matters particularly when the statutory authority or tribunal acts without jurisdiction. The Bench relied upon the ratio of Dhulabhai s case. In Additional Director General, Director General of Central Excise Vs. Kiran Mac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide on the same. The same considerations apply in cases of Bengal Public Demand Recovery Act and Income Tax Act. Although both the statutes are special statues providing with machineries for enforcement of special provisions consideration and adjudication of declaration of title is not barred by any of the statues, as above. Therefore, these issues are decided in favour of the Plaintiffs. Issue no. 1A is whether the original Plaintiffs were the owner of the articles and goods set out respectively in Schedule A , B and C of the plaint and Issue no. 1(b) is whether the goods wherein possession of Plaintiff no. 1 and the Plaintiff no. 2 at the time of seizure. The original Plaintiffs who claimed the ownership of the articles must prove the same. Burden of proof is on the person who desires a court to give judgment as to their legal rights (Section 101 of the Indian Evidence Act). Mr. Roy, the Learned Counsel for the Plaintiff argued that it is a trite law that even in an absence of documentary evidence showing title, the person who is in possession is deemed to be the owner of the goods. He referred to the decision of the Supreme Court of India in Shiv Shankara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiate by proper evidence and/or by documentary evidence that the scheduled articles were ancestral family properties. Rather late Ramnath Bajoria, the original Defendant no. 6, in presence of his own lawyer and two witnesses signed search list as the owner of the goods. In nutshell, the Learned Counsel argued that exiguous evidences do not establish that the original Plaintiffs were the owners of the scheduled articles. Law is well-settled. Section 101 of the Indian Evidence Act provides for burden of proof and on whom such burden of proof lies. Section 102 states that burden of proof should in a proceeding lies on that person who will fail if no evidence is at all given on either side. Section 106 is also relevant to consider in this context. According to the Section 106 when any fact is specially within the knowledge of any person burden of proof of that fact is upon him. The statute never states that any specific or particular kind of evidence is to be tendered to discharge burden of proof. Evidence can be either documentary or oral; even if there is absence of any documentary evidence but only oral evidences are adduced it cannot be said that burden of proof is not discharg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharged by the Plaintiffs to adduce evidence to substantiate their claims, onus of proof shifts on the Defendants. DW1 Shankar Ghosh stated in evidence that diamond, watches and gold ornaments were suspected to be smuggled and were in the possession of late Ramnath Bajoria. DW 1 was a member of a search party recovery were made from safe key kept in the bedroom of the original Defendant no. 6. DW 1 further deposed that he believed that the items were smuggled because of information receipt that the original Defendant no. 6 smuggled those articles; the said original Defendant no. 6 were the owners of the jewelleries, he was connected with steamship line and that he could not give satisfactory reply of acquisition and possession of the articles. In course of cross-examination DW 1 stated that gold, diamonds, some jewelleries and watches were smuggled into the residence of the original Defendant no. 6. He could not remember whether the information was oral or written statement. He stated that information was received by Mr. Srivastava, one of the officers of the Department. DW 1 could not tell whether there was any record of receiving information by the department; he did not state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o consider observations of the Supreme Court of India in Collector of Customs Madras And Others Vs. D. Bhoormall [(1974) 2 SCC 544] it was observed by the Supreme Court India in this case: 35. It cannot be disputed that in proceedings for imposing penalties under clause (8) of Section 167, to which Section 178-A does not apply, the burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statutory provision to the contrary. But, in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred principles, no less fundamental, of universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and as Prof. Brett felicitously puts it all exactness is a fake . El Dorado of absolute proof being unattainable, the law accepts for it probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vil Court in exercise of ordinary jurisdiction cannot decide on the propriety of search and seizure; civil court in exercise of ordinary civil jurisdiction is neither authorized nor vested with such power. Similarly, the prohibitory order was passed in exercise of power conferred under the then existing Income Tax Act. Vires could have been challenged in appropriate forum. But exercising ordinary jurisdiction, this Court cannot decide on the same. Therefore, this Court desists from deciding on Issue no. 2 and 11. Issue no. 3(a) and (b) is questions of fact. Although DW1 stated that the original Plaintiff no. 1 was a pardanshin lady and she did not enter into the rooms when search was going on, PW 1 the original Plaintiff no. 1 Tribeni Devi and another Plaintiff s witness Chinmoy Mallick deposed that Plaintiff no. 1 and 2 challenged and protested the seizure of ornaments on being present there. The original Plaintiff no. 1 deposed that ornaments of Plaintiff no. 3 were kept with her the original Plaintiff no. 3 also deposed that she kept her ornaments with the Plaintiff no. 1. There is no evidence to the contrary. Therefore, the said facts are established and issue no. 3(a) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th. It is to be remembered that the allegations of mala fide are often more easily made than made out and the very seriousness of such allegations demands proof of a high degree of credibility. As Krishna Iyer, J. stated in Gulam Mustafa v. State of Maharashtra [(1976) 1 SCC 800] (SCC p. 802, para 2 ): It (mala fide) is the last refuge of a losing litigant. In the case in hand, plaint contains a sweeping allegation of malice without substantiating the same by any particularity or details. There is no evidence of malice on the part of the Defendants. There is no evidence that any oblique motive goaded the original Defendants or that colorable exercise of authority was involved. No evidence is there that the very procedure of search and seizure was challenged or declared illegal. In absence of anything else there cannot be departure from the conclusion that the Defendant authorities exercised powers in good faith without any malice whatsoever. Therefore, issue no. 4, 5 and 7 are decided against the Plaintiffs. As discussed above, there was neither malice on the part of the Defendants nor was mala fide exercise of power and authority. The Defendant authorities exercise ..... 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