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TMI Blog2005 (11) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... )(g) and 300A of the Constitution of India and they are also irrational, oppressive, without application of mind and arbitrary besides being contrary to or in non-compliance of and/or disregard to the provisions under the Customs Act, 1962; D. Your lordships may be pleased to issue a writ of mandamus or certiorari or a writ in the nature of mandamus or certiorari or any other appropriate writ or order quashing and setting aside the impugned order issued on 6th June, 1995 in appeal No. 55/2005 (annexure A) and the impugned notices (annexure B colly.) i.e. the notices dated 23rd July, 2004, 12th August, 2004, 21st August, 2004, 27th August, 2004, 22nd September, 2004 and 19th November, 2004 and also quash the direction to the petitioners to get the alleged dues deposited on priority basis failing which proceedings may be initiated against the noticee; E. Pending hearing and final disposal of present petition, Your lordships may be pleased to pass appropriate writ, order or direction, as and by way of interim relief, staying the implementation, execution and operation of the impugned order issued on 6th June, 2005 in appeal No. 55/2005 (annexure A) and also of the impugned notices d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der-in-original No. 43/AC/ICD/ 2001, dated 14th May, 2001. The petitioner was also informed that in the event of non-payment of dues by the importer the petitioner should either recover the amount from the importer or it should itself pay the demanded amount failing which, the licence of the petitioner as custom house agent would be suspended/revoked. 4. The petitioner therefore approached this Court by way of special civil application No. 36 of 2005, which came to be decided on 1st April, 2005. The petition came to be disposed of by a judgment and order dated 1st April, 2005 and in paragraph No. 5 it was laid down by this Court as under: 5. As can be seen from the facts on record, the petitioner was under a bona fide impression that it was not required to challenge the order dated 14th May, 2001 made against and in the name of the importer-Company, and it was only when the petitioner-company was served with the impugned show cause notices for recovery of the outstanding dues that it became alive to the fact that the importer-Company has not challenged the said order. Thereafter, the present petition had been filed. In these circumstances, as the petitioner was under a bona fide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chandra Mohanty - AIR 1998 S.C. 1872 and in case of Shobha Suresh Jumani - AIR 2001 S.C. 2288. He has also referred to the meaning of the words "aggrieved person" as given in Black's Law Dictionary (Sixth Edition) as well as K.J. Aiyar's Judicial Dictionary, Twelfth Edition. 7. Mr. Jitendra Malkan appearing on behalf of the respondent-authorities has supported the order made by Commissioner (Appeals) and submitted that the same was proper, legal and reasoned. That, in fact the petition should not be entertained because on the same subject matter an earlier petition had been filed being Special Civil Application No. 36 of 2005 and the impugned notices, which have been challenged, had been considered by the High Court while disposing of the earlier petition vide order dated 1st April, 2005. That the petitioner had been called upon to make payment in the capacity as a surety and was legally bound by virtue of the bond executed (Annexure D). Alternatively, it was submitted that the order made by Commissioner (Appeals) was an appealable order in terms of Section 129A of the Act, and therefore also the petition was not maintainable. It was further submitted that notices having been iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessary to record that on 18th August, 2005 the respondent sought to tender affidavits of various persons in support of the submission that the P.D. Bond was enforceable against the petitioner. However, the court declined to take the said affidavits on record in light of the fact that the hearing was over and the matter had been kept part-heard only for the limited purpose of ascertainment of the original record. It is also necessary to note that the respondent authorities had already submitted affidavit-in-reply dated 1st August, 2005 and as the pleadings were complete, with the consent of the parties while admitting the petition rule had been made returnable on 17th August, 2005 vide order dated 5th August, 2005. Accordingly the matter was finally heard on 17th August, 2005 and 18th August, 2005. 12. As can be seen from the pleadings and the contentions raised at the time of hearing the dispute between the parties centres round the fact as to whether the petitioner had, or had not, executed bond of surety in relation to bill of entry No. 17/95. The petitioner has also raised the issue as to the validity of the order-in-original on merits. However, for the reasons that appear he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiorari jurisdiction against the competitor who was awarded No Objection Certificate under the relevant rule of the Bombay Cinema Rules, 1954. At page 581 in paragraph No. 12 it was laid down. xxx xxx xxx xxx Who is an "aggrieved person"? and what are the qualifications requisite for such a status ? The expression "aggrieved person" denotes an elastic, and, to an extent, an elusive concept. It cannot be confined within the bounds of a rigid exact and comprehensive definition. At best, its features can be described in a broad tentative manner. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest, and the nature and extent of the prejudice or injury suffered by him. xxx xxx xxx xxx Further at page No. 583 in paragraph Nos. 23 to 25 the ratio of English decisions regarding "locus standi" has been explained thus : 23. In Regina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed of a benefit which he might have received if some other order had been made. A "person aggrieved" must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something. Finally in paragraph No. 38 at page 586 the Apex Court has laid down the broad tests in the following words: 38. To distinguish such applicants from "strangers", among them, some broad tests may be deduced from the conspectus made above. These tests are not absolute and ultimate. Their efficacy varies according to the circumstances of the case, including the statutory context in which the matter falls to be considered. These are: Whether the applicant is a person whose legal right has been infringed? Has he suffered a legal wrong or injury, in the sense, that his interest, recognised by law, has been prejudicially and directly affected by the act or omission of the authority, complained of? Is he a person who has suffered a legal grievance, a person against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied upon by this Court in Thammanna v. K. Veera Reddy (1980) 4 SCC 62 : AIR 1981 SC 116 and Northern Plastics Ltd. v. Hindustan Photo Films Mfg. Co. Ltd. (1997) 4 SCC 452 : 1997(91) E.L.T. 502 (S.C.). 9. From the aforesaid scheme of the Act, "any person aggrieved" by an order of the competent authority would mean person whose property is held to be illegally acquired under the Act and which is to be forfeited or whose legal rights qua the said property are adversely affected. According to Black's Law Dictionary, "aggrieved party" refers to a party whose personal, pecuniary or property rights have been adversely affected by another person's actions or by a Court's decree or judgment. Also termed party aggrieved; "person aggrieved". Therefore, a relative or associate, who has no interest or rights in such property cannot be held to be a person aggrieved. It is true that wife may be aggrieved because her husband's properties are forfeited. But that would not confer a right to file an appeal against such order. There is no infringement of her legal right. For the purposes of the Act husband and wife are different entities. If the properties standing in the name of relative or associa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two parties before the Tribunal were maintainable or not. The wider concept of locus standi in public interest litigation cannot be imported for deciding the right of appeal provided under the statutory provisions. In paragraph No. 10 it is observed : xxx xxx xxx xxx xxx It is axiomatic that the importer against whom the Collector has passed the impugned order of adjudication and who is called upon to pay the customs duty which, according to him, is not payable is certainly an "aggrieved person" who can prefer an appeal under Section 129A(1) of the Act. xxx xxx xxx xxx xxx Neither the Central Government, through Industries Department, nor the rival company or industry operating in the same field as the importer can as a matter of right prefer an appeal as "person aggrieved". It is true that the phrase "person aggrieved" is wider than the phrase "party aggrieved", xxx xxx xxx xxx xxx It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p; The meaning of the words "aggrieved person" cannot be read as an expression which is rigid, exact and comprehensive. Apart from the content and intent of the statute, the specific circumstances of the case, the nature and extent of the person's interest, and the nature and extent of the prejudice or injury suffered by the person are relevant factors. (b) The duty of the court is to read into the statute, a duty to act fairly in accordance with the principles of natural justice. If a person suffers a wrong as a result of unfair treatment on the part of the authority, he is a person who has suffered a legal grievance, against whom a decision has been pronounced which decision has either wrongfully deprived him or wrongfully refused him something or wrongfully affected his title to something. In other words, the person must have suffered a legal wrong or injury, in the sense, that his interest is prejudicially and directly affected by the act or omission of the authority. (c) The grievance has to be his own beyond some grievance or inconvenience suffered by him in common with the rest of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s cannot fasten any liability on the petitioner because the petitioner was not a surety, having not executed any contract as required by law. Alternatively, it was contended that the Order-in-Original was bad in law as the same had been framed against the settled legal position. It was, therefore, urged that unless and until the petitioner is heard in the matter no liability of a third party can be fastened on the petitioner, and for the purpose, the petitioner was ready and willing to avail of and exhaust the statutory remedies provided under the Act. 17. As against that, it was submitted on behalf of the respondent authorities that the petitioner cannot be permitted to resile from the position of being a surety; that the petitioner had executed two bonds in relation to Bill of Entry Nos. 3 of 1995 as well as 17 of 1995. That the bond had to be read as a whole. That the respondent authorities having acted on the terms held out by the petitioner it could not be permitted to turn around and deny its liability to discharge the liability which the petitioner had undertaken at the time when provisional assessment was framed and goods released in favour of the importer. It was hence co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision the liability is so varied. Thus, where the debt due by the principal debtor is scaled down the surety is liable only to the extent of such scaled down amount, A contract of guarantee must necessarily involve three parties. In other words all the three parties should be privy to the contract if contract of guarantee is to be invoked. The person who wants to rely upon the contract of guarantee must prove the express participation or implied assent to such a contract. In absence of any liability there can be no contract of guarantee. The liability of the guarantor /surety presupposes the existence of a separate liability of the principal debtor and the liability of the surety is normally secondary which comes into existence only in case of default by the principal debtor. The definition under Section 126 of the Contract Act provides that a contract of guarantee is a contract to perform the promise, or discharge the liability of a third person in case of default by the third person; it is in essence a contract whereby the guarantor/surety agrees to be answerable for some liability of the principal debtor to the creditor. Therefore, where the surety or the guarantor is decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the principal debtor. The principle underlying the rule that the surety is entitled, on payment of debt or performance of all that he is liable for, to the benefit of the rights of the creditor against the principal debtor and to be put in the same position in which the creditor in relation to principal debtor, is one of equity and does not rest upon the contract but on principle of natural justice. 20. In the present case, the petitioner has been called upon to discharge the liability which has been raised against the importer by Order-in-Original in the capacity as a surety. In the circumstances, can it be stated that the petitioner is entitled to challenge the Order-in-Original by way of an appeal? The position is required to be ascertained with reference to the provisions of statute in which the words any person aggrieved occur i.e. Section 128 of the Act. 21. The expression cannot be read to be rigid, exact and comprehensive. Apart from the content and intent of the statute, the specific circumstances of the case, the nature and extent of the person's interest, and the nature and extent of the prejudice or injury that may be suffered by the person would be relevant facto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be any person who suffers a legal grievance resulting in wrongful deprivation of his property or wrongful refusal of something or wrongfully affecting such person's title to something. In other words, the person must suffer a legal wrong or injury. In the present case, out of various tests formulated by the Apex Court the petitioner can be said to be a party who is aggrieved by the order because the pecuniary or property rights of the petitioner are adversely affected by the Order-in-Original made by the proper officer. The petitioner is prejudicially or adversely affected by the Order-in-Original. 24. The reliance by the Commissioner (Appeals) on the decision in the case of Northern Plastic Limited (supra) is misplaced. In fact the said decision supports the case of the petitioner. The said decision lays down that when the importer is called upon to pay the customs duty which, according to the importer, is not payable, the importer is certainly an aggrieved person who can prefer an appeal. In the present case, the liability of the petitioner, even as a surety, would be co-extensive with that of the importer and he steps into the shoes of the importer for all intents and purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the party who alleges it, i.e. the revenue. The revenue will have to lead evidence in this connection. The present proceedings cannot be converted into original proceedings wherein evidence is led, by examination and cross-examination of various persons. It should more appropriately be done before the adjudicating authority or the appellate authority who is empowered to record evidence. This is one more reason why the impugned order made by the Commissioner (Appeals) cannot be allowed to stand. 27. At this stage, it is necessary to note that on 1st April, 2005 this Court had directed Commissioner (Appeals) to treat the appeal as having been filed within the period of limitation in case the appeal had been filed on or before 16th April, 2005, and further directed that he shall decide the same on merits in accordance with law. When this was brought to the notice of the learned Counsel for the respondents the submission was that by virtue of the aforesaid direction contained in paragraph 5(ii) of the order made by this Court on 1st April, 2005 in Special Civil Application No. 36 of 2005 the petitioner will not get a new right if the petitioner has no right to file an appeal. This s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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