TMI Blog1952 (9) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... such goods duly and lawfully imported. 2.The 12 Diesel engines in question were imported under two licences, exhibits, P-3 and P-4, issued by the Deputy Chief Controller of Imports, Calcutta, in 1950, allowing the petitioner to import by sea into India Diesel engines above 20 H.P. of the value of Rs. 2,00,000 and Rs. 6,00,000 respectively. But, actually, the petitioner imported 12 Diesel engines of 20 to 22 H.P. each, relying on a certain order of the Bombay Customs Collector that Diesel engines of 20 to 22 H.P. could be imported under such licences, and after ascertaining from the manufacturers about a custom like that. Now, he relies also on an order of the Calcutta Customs Collector allowing the import of 20 to 22 H. P. Diesel engines under licences like these for importing Diesel engines above 20 H.P. The Madras Customs Collector held that the licences in question would not allow or authorise the import of these 12 engines of 20 to 22 H.P. as they were not clearly above 20 H.P. (the basic 20 being there, in 20-22). Various letters shown to him from manufacturers and others, including the order of Bombay Customs Collector that such engines would come within the term " above 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or issue any directions to the respondent. 4.The case was arguably by Mr. V.C. Gopalaratnam, for the petitioner, and Mr. Venkatesan, for the respondent. Mr. V.C. Gopalaratnam for the petitioner, raised three contentions. The first was that the respondent had no real reason to hold that the licences did not cover the import of these 12 diesel engines and ought to have followed the view of the Customs Collectors of Bombay and Calcutta that the licences for importing 12 diesel engines above 20 H.P. will include the import of diesel engines of 20 to 22 H.P. especially as the manufacturers have certified that the maximum capacity of each of these 12 engines, when worked to capacity, would be 22 H.P. I cannot agree with this contention. The respondent had a perfect right to come to his own decision regarding the validity of the licences for these imports, as there is no rule, much less any law, requiring him to follow the rulings of the Bombay and Calcutta Collectors of Customs. It is well known that the Madras High Court can stick to its own opinion regarding a point of law, even if the Bombay, Calcutta, Nagpur, Allahabad and all other High Courts in India have taken a different view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuments he produced in Court, it is stated by the Government of India :- "It has further been decided that licences for import of diesel engines of more than 20 H.P. will be granted freely from all sources." Showing that licence for import of diesel engines of 20 H.P. or less would be much more difficult to get and would be far less easily granted. The petitioner has got these licences Ex. P-3 and P-4, freely and without the least difficulty, as he undertook to import diesel engines with more than 20 H.P. If he had wanted to import diesel engines of 20 to 22 H.P., as he really did, the Government of India might not have granted him the licences, or might have granted him licences for a far less number of engines or subject to more restrictions. 6.The third contention of Mr. V.C. Gopalaratnam was that the import of Diesel engines of 20 H.P. or less was not absolutely prohibited under section 18 of the Sea Customs Act, but was only restricted, and required to be covered by licenses under section 19, and that, therefore, it is not a case for such draconian orders as the respondent passed but for a more indulgent and considerate order. He added that the petitioner had acted with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pe as the figure 22 is there at the apex and is clearly above 20. It is, of course, illogical to think so. Just as a man cannot be held to have escaped so long as his feet are caught hold of and only rest of the body has escaped outside the window, so too, so long as the figure 20 H.P. remained, the fact that 22 H.P. also was mentioned, will not help the petitioner, as the machines were not clearly above 20 H.P. Still, that will only show that view of the respondent, holding that the Diesel engines in this case could not be imported under the licenses produced, was right. It will not show his draconian order regarding the fines, in lieu of confiscation, to be either right or to have been the result of a judicial exercise of the discretion vested in him under the law which empowered him to adjudge the offence, and deal with it, as all Courts and Judicial and quasi-judicial Officers in India are expected to do, with understanding, skill and sympathy and in the light of justice, equity, and good conscience, (in Hindu Law parlance, (Yukti, Buddhi, dharma and nyaya) and not according to whims and caprices or whatever comes uppermost to the mind. I have no doubt whatever, that, in the ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ief Act, especially when the Sea Customs Act is a complete code providing for every possible situation and affording every possible relief required or necessitated by the circumstances. But he was not on strong ground at all when he said that the High Court, on its original side, has no such power. He Frankly admitted that the curb put on the powers of the Original side of the High Court by section 226 of the Government of India Act, 1935, has now been removed by the proviso to Art. 225 of the Constitution of India. It follows that this Court has now got all the powers it had before that curb. But he ingeniously argued that only the curb has been removed, and that, in spite of it, the original side will still not be able to exercise its powers under section 45 of the Specific Relief Act. That will be something like saying that though a thorn has been removed from the foot the hole left by the thorn should remain intact for other thorns to enter, as the thorn alone was pulled out but the hole was not filled up. Nature abhors a vacuum and the hole left by the thorn is, it is well known, filled up as soon as the thorn is removed. So too, the effect of the proviso to Art. 225 of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cannot marry a relative, or because one Court has the power to hear a case, another court has not got the power to hear it, whereas in our everyday experience, there are often two Courts where a party is at liberty to file a suit at his choice, just as he can register a document in one of two registration offices. I hold that this court has got jurisdiction, under section 45 of the Specific Relief Act, to hear this petition, and to issue such directions as are warranted under section 45 of the Specific Relief Act. 12.Now, we come to the next contention of Mr. Venkatesan, namely that I cannot issue an order under section 45 of the Specific Relief Act, as the petitioner had two other specific and adequate legal remedies, and deliberately refrained from resorting to them, and got one of them barred by limitation, while he is having another, the right of revision, still available if he will also file a petition to excuse the delay. I cannot agree. It has been held over and over again by the Supreme Court, as well as by various High Courts, that the mere existence of another remedy is not sufficient to oust the jurisdiction of the High Court to issue a writ of mandamus under Art. 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in writing out such judgments. But the question is whether the respondent's order was correct and proper, as urged by Mr. Venkatesan, in which case it will be in consonance with right, and justice, under section 45(c) of the Specific Relief Act, and whether this Court cannot interfere under section 45. But as already stated I am satisfied that the order of the respondent is not in consonance with right and justice, and so, I must give him direction which will be in consonance with right and justice. When two other trained Customs Collectors had held that licences to import Diesel engines above 20 H.P. would cover the import of Diesel engine of 20 to 22 H.P. it is obvious that, ordinarily, a lay individual, like the petitioner, cannot, be expected to know that it will be contrary to the licence to import such engines. No doubt, the law has got the fiction that every man is presumed to know the law, but where the law is interpreted in two contrary ways like this by two officers of equal status and indeed the judgments of the two Customs Collectors is in favour of the petitioner's view, though I cannot agree with that view, it is a case for a reasonable penalty and not for a draconia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be thought of in the circumstances, and that the appropriate remedy should be given here and now in this very petition, under section 45 of the Specific Relief Act. In the end, therefore, I direct the respondent, the Customs Collector of Madras, to release the 12 Diesel engines now in his custody, and imported by the petitioner, on the petitioner's paying, within a month from to-day, the entire customs duty payable on the value of those engines, plus 12.5 per cent of the entire value of those engines, in lieu of the order of confiscation the respondent was entitled to pass under the Act. I am fixing the fine at 12.5 per cent not only because of the equitable circumstances mentioned above, and the legimitate doubt entertainable by ordinary lay-man regarding the admissibility of such import, though not of course by persons well-versed in law, but also because the excess H.P. of the imported engines is only marginal, and represents only a 10 per cent possible margin, and that, therefore a 12 1/2 per cent fine will aptly meet the ends of justice. 14.In the circumstances of this case, the petitioner will pay the entire taxed costs of the respondent, as his main contention that the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
