TMI Blog2001 (5) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... porter namely M/s. Nitu Enterprises by a letter dated 3rd April, 1998 expressed inability to the Customs authorities to clear the said consignment. So the petitioners approached the Customs authorities, for permission to re-export and/or withdraw back to its origin at their own risk and costs. But the Customs authorities did not take any action, which resulted in substance in refusal to grant order of re-export to its country of origin. 4.Under the circumstances, the petitioners herein on earlier occasion filed a writ petition on or about 10th August, 1998 being W.P. No. 1650 of 1998. Meanwhile, the Customs authorities issued a show cause notice under Section 124 of the Customs Act, 1962 in respect of the said two consignments, making the writ petitioners a party to the said show cause notice, as one of the notices. The challenge of this show cause notice was the subject- matter of the aforesaid writ petition. 5.The writ petition was finally heard and disposed of by His Lordship the Hon'ble Mr. Justice Y.R. Meena by judgment and order dated 1st February, 1999. His Lordship was, inter alia, pleased to quash the notice issued by the Customs authorities under Sections 110 and 124 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons reported in (1965) 56 ITR 198 (S.C.) and (1981) 131 ITR 597 at 613. 11.He further submits that primary liability to pay detention and other charges to the port authorities is of the petitioners but this burden can be shifted to the person or authority who is responsible for delay in clearance of the goods and the persons are the Customs authorities herein. In this proposition he has drawn my attention to a judgment of this Court reported in 1997 (89) E.L.T. 53 (Cal.). In that case the Customs authorities were directed to pay the port dues. He further draws my attention to the judgment of Supreme Court rendered in case of Padam Kumar Agarwalla v. The Additional Collector of Customs, Calcutta and Ors. reported in AIR 1972 SC 542. 12. He contends that while exercising writ jurisdiction this Court can pass appropriate order of payment of money. It can be resorted to where it is found that the respondents authorities have failed to discharge their duty in due course of taking action in furtherance of the provision of the law and not doing so caused in suffering of loss and damages. As such the respondents authorities should be compelled to compensate the same. For this purpose f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scation of the goods. However, I have refrained myself from dealing with the same because of the judgment and order passed by the learned Single Judge of this Court followed by affirmation of the Division Bench. Such alleged justification is not only redundant exercise but amounts to contumacious act in view of rejection of the same very plea. The relevant portions of the written argument advanced by Mr. Roychowdhury are summarised hereunder. 17.The relief claimed in the writ petition is hit by the principle of constructive res judicata as the writ petitioner could have prayed for this relief in the previous writ petition as well as in the appeal but it was not done so. Moreover, Justice Meena by a judgment dated 1st February, 1999 has been pleased to hold that "the petitioner has been cheated by M/s. Nitu Enterprises and has also to pay the port charges for the period for which the goods are lying at Calcutta Port. Further delay in permitting the petitioner to take back those goods to Dubai will made him further liable for port charges as the goods were seized as back as in August, 1997. 18.Therefore, it will appear from the above observation since affirmed by the Appeal Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owdhury has relied on the following decisions :- (i) 1995 (80) E.L.T. 241 (S.C.), (ii) 1995 (77) E.L.T. 753 (S.C.), (iii) 1977 (2) SCC 649, and (iv) 1987 (30) E.L.T. 633 (S.C.) = 1987 (1) SCC 648. 24.Having heard the respective contentions of the learned Counsel in this case I find that because of the abortive action by the respondents for confiscation of the goods brought in Calcutta Port and consequent upon refusal to re-export there has been arising a liability of payment of detention and demurrage charges of the containers wherein the subject materials are stuffed, and the port charges. This Court both by the learned Single Judge as well as by the Division Bench who has affirmed the judgment of the learned Trial Judge found, that the action of the respondent authorities is wholly without jurisdiction and directed the respondents to allow to re-export the same. There would not have been any problem or any dispute subsequently but for the accrual of detention and/or demurrage charges of the containers and the port charges for the period from the date of seizure and detention and till the issuance of the permission for re-export. The amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... den such liability and this has been time and again enunciated by the Apex Court as well as this Court in the aforesaid judgments. I need no reiteration of the above proposition. I am unable to accept Mr. Roychowdhury's contention that because of the finding of Justice Meena the writ petitioner is to pay the port charges. Yes true is the position that it is initial burden of the writ petitioner to pay but such burden is liable to be shifted to the Customs authority. 28.The plea of constructive res judicata is absolutely misplaced here as at that point of time it was not the question who was liable on account of the detention, for demurrage charges and such cause of action has arisen only after permission to re-export has been granted. The plea of constructive res judicata arises only when there is a cause of action and for which one of such relief could have been claimed or any issue could have been raised but not raised in the proceeding decided previously. In the earlier writ petition there was only issue whether the notice to show cause for confiscation of the goods was lawful or not. It was not the contention that the respondents were liable to pay the demurrage and/or detent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued by the authorities and they have relied on Section 111(o) which we have discussed above has no relevance in the present case. Therefore, the issue of the show cause notice under Section 124 for confiscation of the goods and seizure thereof is totally without jurisdiction." 30.It will appear from the aforesaid findings of the Appeal Court that the respondents authorities could not justify by producing any material or even prima facie action for confiscation of the goods. Now it has to be examined in order to find out the malice on part of the respondents to take such action, whether on the given facts and circumstances of this case such action could have been taken by an officer having a common sense and average intelligence in exercise of his power. An officer of average intelligence can take action under the law when there exists some basis and/or materials not on the basis of apprehension devoid of any material whatsoever. In this case from the judgment of the Appeal Court it is found that the respondent authorities were not sure under what provision of the law the action was taken. The Appeal Court has taken pain of analyzing of the fact that in that case it is not warran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the statute itself. Public authorities acting in violation of constitutional or statutory provisions oppressively are accountable for their behaviour before authorities created under the statute like the commission or the courts entrusted with responsibility of maintaining the rule of law." It has been further held by the aforesaid judgment that - " ...............However, today the issue is not only of award of compensation but who should bear the burnt. The concept of authority and power exercised by public functionaries has many dimensions. It has undergone tremendous change with passage of time and change in socio-economic outlook. The authority empowered to function under a statute while exercising power discharges public duty. It has to act to subserve general welfare and common good. In discharging this duty honestly and bona fide, loss may accrue to any person. And he may claim compensation which may in circumstances be payable. Public administration involves a vast amount of administrative discretion which shields the action of administrative authority. But where it is found that exercise of discretion was mala fide and the complainant is entitled to compensation fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 (CA) and (1995) 2 All ER 1, 13 and 14. In this case this action of attempt to confiscate the goods were held to be ultra vires and beyond the provision of law. When the action is not permissible under the law the servants of the State cannot get protection under the same law. So protection under section 155 of the said Act is not amenable in view of the findings of the Appeal Court that the acts are ultra vires the provision. The protection will be amenable only when action is justified to have been taken under the provision of the Act nor beyond the provision. Moreover the respondent authorities have also failed and/or neglected to keep the goods in warehouse in breach of the said circular which they should have done so. This negligence resulted in loss to the petitioner. The officers in their official capacities, if not personally are liable to make good. 34.Therefore, I am unable to accept the argument of Mr. Roychowdhury that officials and the respondents are immuned by the aforesaid sections. 35.As far as question of granting relief in this case by writ jurisdiction is concerned I am of the view that this issue is no longer res integra. It has been held by the aforesai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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