Union of India (UOI) vs Narayan Kumar Jain

D. Raju, J.—The above writ appeal has been filed by the authorities of the Union of India, who were respondents in W.P. No. 3075 of

1996 against the order of a learned Single Judge of this Court dated 7-3-1997 in W.P. No. 3075 of 1996, whereunder the learned Single Judge

was pleased to allow the writ petition filed by the respondents herein seeking for the issue of a writ of certiorarified mandamus calling for the

records pertaining to the order of the second appellant in Original No. 2/AC/1996, dated 31-1-1996 and consequently, direct second appellant-

second respondent to restore Sony television set 29"" made in Japan with the other goods seized by the customs officers from the shop of the father

of the appellants-respondents at Ahmedabad on 15-11-1995 as per the list of items seized specified as Ex. C in the affidavit of the writ petitioners

respondents herein filed in support of the writ petition, to the writ petitioner No. 1, at Madras or writ petitioner No. 2 at Ahmedabad, or in the

alternative to pay a sum of Rs. 68,200/- or such further or other sum as the Court may direct.

Respondents herein are said to be the sons of Dadamchand Jain, respondent No. 1 being the elder and respondent No. 2 being the younger.

The first respondent has filed the affidavit in support of the writ petition filed in this Court. He is a native of Dadal in the District of Jalora, Rajasthan

and he is said to be residing at No. 5/8, Narayana Mudali Lane, Madras-79 and the second respondent is said to be carrying on business in

general merchandise and plastic novelties at Ahmedabad and both a''re said to be aggrieved by the impugned order dated 31-1-1996 passed by

the second appellant herein. The case as projected by the deponent in the affidavit filed in support of the writ petition is that he had come down to

Madras at the invitation of his father-in-law to commence his own business and is staying in Madras for more than a year preceding the filing of the

affidavit, that his father-in-law had promised to gift a colour Television set to his wife and accordingly, he had purchased one Sony colour

Television set 29"" made in Japan in his name from an air passenger Sellaiyan Karunanidhi on 10-11-1995 for Rs. 65,000/- that he wanted to install

the television set at his native place in Rajasthan and therefore, booked the same to Ahmedabad under the name of his wife ''Neelam'' through a

courier known to him rendering courier service in the name and style of ""Tirupati Air Cargo"" between Madras Ahmedabad and that he informed

his younger brother, the second respondent, who is staying with his father and doing business in general merchandise, over STD to release the

television set from the courier and keep it in the house in tact, and so as to enable him to carry the same to his native village during the return

journey to Rajasthan in the following week. While matters stood thus, the parcel sent was intercepted by the Customs Officials from the courier''s

Office at Ahmedabad on 15-11-1995 and after recording the statement from the owner of the courier service, one Ranjit Singh the television set

has been seized under a panchanama on 15-11-1995. It is further stated that the customs officers also raided the shop of the father of the

respondents at Ahmedabad and recovered some non-notified imported goods from the shop, of the value of Rs. 3,200/-. The Customs Officers

also recorded a tutored statement of his brother in vernacular, the English translation of which is also annexed to the affidavit. Thereupon, the

second appellant issued a show cause notice dated 27-11-1995 to the second respondent herein, calling upon him to show cause as to why the

television set and other goods seized on 15-11-1995 under two different panchanamas should not be confiscated and why penalty u/s 112(a) and

(b) of the Customs Act be not imposed on him. The second respondent was said to have submitted a reply dated 12-12-95 and he also was said

to have produced the original baggage receipt No. 016809, dated 1-11-1995 and the affidavit executed by the air passenger S. Karunanidhi

dated 10-11-1995. It is also stated that on the basis of certain earlier notifications and orders of the Appellate Authority, the second respondent

explained to the second appellant that the seizure of the television set and other non-notified goods was, illegal and unwarranted and requested to

release the same and drop further proceedings against him. The second appellant, despite all these, was said to have passed an order dated 31-1-

1996 ordering confiscation of the television set and other miscellaneous goods and also imposing a personal penalty of Rs. 7,500/- against the

second respondent.

Aggrieved, W.P. No. 3075 of 1996 came to be filed before this Court for the relief noticed earlier, stating that the order of the second appellant

is absolutely void and without jurisdiction, that the second appellant has usurped the jurisdiction on a wrong assumption of facts and conducted the

proceedings contrary to law and offending the sense of justice and fair play and also on patent misconstruction of the provisions of the Customs

Act and the amended baggage rules as per various notifications of the Central Government. Inasmuch as the statutory remedy of appeal u/s 129 of

the Customs Act is neither efficacious nor adequate, but really onerous, the writ petition is being filed without availing of such alternative remedy. In

justification of the act of the respondents-writ petitioners for involving the jurisdiction of this Court under Article 226 of the Constitution of India,

reliance has been placed on Article 226(2) of the Constitution of India, which enabled the jurisdiction of this Court to be invoked also, if the cause

of action arises wholly or in part within the territorial jurisdiction of this Court and inasmuch as the confiscated television set was purchased by the

first respondent at Madras and despatched to Ahmedabad from Madras and the set was meant for the personal use of the first respondent, who is

permanently staying at Madras, this Court has jurisdiction to entertain the writ petition. In support of the challenge made, the respondents herein

urged that with the production of the baggage receipt dated 1-11-1995 by the second respondent along with the supporting affidavit from the

passenger, the second appellant ought to have released the television set and drop the proceedings, that the opinion expressed by the second

respondent that the baggage receipt was issued for an old television set, whereas the television set in question is really a new and unused one, was

absolutely unwarranted and uncalled for, that the burden of proving that the television set in question was only smuggled one was on the

Department and the second appellant had no authority to discard the concrete evidence produced by the respondents. The further ground of

challenge was that the goods seized from the shop of the respondent''s father at Ahmedabad were neither prohibited nor notified nor specified u/s

11B or 123 of the Customs Act and they are goods freely available in the open market both in Madras and in Ahmedabad and the television set in

question also being neither notified goods u/s 123(m) nor covered by Chapter IVA of the Customs Act it would not warrant or justify a

presumption as to its smuggled character and therefore, the seizure of the television set and other goods was without jurisdiction. The further

ground also was that the confiscation of the goods u/s 111(d) was permissible only when there is a proof of importation of goods in contravention

of any statutory provisions and the order of confiscation passed without giving liberty or option to pay fine in lieu of confiscation also renders the

impugned order illegal. Strong exception has been taken in the affidavit filed in support of the writ petition for the verification of the identity of the

air passenger through the authorities of the Customs Department at Tiruchirapalli, instead of verifying the customs authorities at

Thiruvanandhapuram and the action of the second appellant is said to be more on assumption then on the correct proof and consequently, the

penalty imposed was also unwarranted and without jurisdiction.

The appellants, who are respondents in the writ petition, have filed their counter affidavit contending among other things that the writ petition was

not maintainable in this Court and also could not be filed without exhausting the alternative remedies, which are said to be effective. Further, the

counter affidavit disclosed the circumstances under which the seizure of the television set as also the other goods was made and also contending

that the action initiated and also the impugned order passed, were all in accordance with law. It is also stated for the appellants in the counter

affidavit that the television set in question is of foreign origin, that the second respondent all along claimed that the television set was purchased for

him, that initially he did not produce any records and it is subsequently only, the material claimed to have been produced has been actually

produced, that on enquiries made through the customs office at Tiruchirapalli, it was informed that the address of the air passenger as given in the

documents produced by the second respondent, was found to be fictitious, and it is only taking into account all the relevant materials, the impugned

order came to be passed and the same is unassessable. The further claim was that the first respondent never came before the second appellant

claiming ownership at any time before the filing the writ petition in this Court, that when the show cause notice was issued to the second

respondent, even in the reply he alone had asserted ownership of the goods and that the various grounds of challenge urged in the writ petition are

untenable and devoid of merits. The appellants had reiterated in the counter affidavit the stand that the television set covered in the baggage was an

old and used one, unlike the television set in question, which was found in original packed condition having the literature manual etc., and that the

television set in question is not the same television set, which has been claimed to have been cleared from Thirunvanandhapuram Airport under the

baggage receipt produced before the authorities. The further stand taken was that though the television set and other goods seized by the customs

officials on 5-11-1995 are neither notified goods nor covered under Chapter IVB of the Customs Act, 29"" colour television set falls under the

negative list of Import, Part II, Chapter XV of 156 restricted items as classified (Vide Export and Import Policy) and consequently, the import of

such items to India without special import licence was prohibited pursuant to Sections 3 and 4 of the Imports and Exports (Control) Act, 1947,

read with Foreign Trade (Development and Regulation) Act, 1992 and consequently, such prohibition and restrictions are deemed to have been

imposed u/s 11 of the Customs Act, 1962 as for the maintainability of the writ petition in this Court, it was stated for the appellants in their counter

affidavit that the cause of action arose only at Ahmedabad and therefore, there is no jurisdiction for the Courts at Madras, to entertain and deal

with the same on merits;

On the above claims and counter claims, the learned single Judge formulated for consideration, apparently from the contentions urged finally at

the time of hearing, the following questions, namely, the maintainability of the writ petition before this Court, maintainability of the writ petition

without availing of or exhausting the alternative remedy of appeal under the Customs Act, the absence of notice of the first respondent before

passing the impugned order as a ground in justification of filing the writ petition and finally the claim of the respondents on merits. So far as the

maintainability of the writ petition in this Court is concerned, the learned Single Judge was of the opinion that in view of the Article 226(2) of the

Constitution of India, the writ petition is maintainable in this Court because part of the cause of action, on account of the television set having been

purchased at Madras and the first respondent being a resident of Madras arose within the territorial jurisdiction. As for the objection taken on the

failure to exhaust the alternative remedies, the learned single Judge was of the view that though normally the Courts will not entertain a writ petition

when alternate remedy, is available, since the order passed by the second appellant so far as the first respondent is concerned is ab initio void. He

not having been issued with any show cause notice and no enquiry having been held against him he cannot file an appeal and even if the appeal has

to be filed, it has to be filed only in Ahmedabad and it will not be proper to dismiss the writ petition and on that ground in the light of the conclusion

arrived at by the learned single Judge that this Court has territorial jurisdiction to entertain the writ petition. The learned Judge was also of the view

that since the challenge was of the very jurisdiction of the second appellant, the failure to exhaust the alternative remedy will not stand in the way of

the respondents to file this writ petition. So far as the merits of the contentions are concerned, the learned single Judge was of the view that the

television set in question was not a specified goods and therefore, the burden of proof that the goods under seizure was smuggled goods was very

much on the Department and not on the respondents and inasmuch as there was no independent evidence from the Department to prove that the

television set in question was indeed a smuggled one, there was no scope for drawing any presumption in favour of the Department and

consequently, the confiscation could not have been permissible, particularly when the respondents have produced the baggage receipt and the

authenticated affidavit from the concerned air passenger. On the above view, the learned Single Judge had come to the conclusion that the goods

have been seized long after they had been actually imported or brought through the personal baggage on a bonafide transit and there being no

direct evidence to identify the same as having been imported without proper licence or of illicit origin, the seizures as well as the imposition of

penalty, cannot be justified. Hence, the above writ appeal by the Department.

Mr. Ilias Ali, learned Additional Central Government Standing Counsel appearing for the Department contended that the conclusions arrived at

by the learned single Judge holding that this Court has territorial jurisdiction to entertain the writ petition in respect of the cause of action in

question, that the respondent had justification to by pass the alternative remedy of appeal available and invoke the writ jurisdiction and the absence

of notice or enquiry as against the first respondent was fatal and justified the by-passing of the remedy of appeal, are not tenable and correct in law

and therefore, are liable to be set aside. Argued the learned Counsel for the appellants further that the conclusions arrived at by the learned single

Judge that the goods are not covered by or specified u/s 11B and Section 123 of the Customs Act and therefore, could not be said to have been

liable for confiscation and that the Department at any rate, had not discharged its burden of proof that the goods were really smuggled goods, are

liable to be set aside, contending that even if the goods are not those which are not covered u/s 11B or Section 123 of the Customs Act, the

authorities are entitled to seized the goods and confiscate them, when they are satisfied that the goods are of foreign origin and had not been shown

to have properly been imported and lawfully come into the possession of the persons holding such possession and that the materials on record

were sufficient in law to justify the confiscation and imposition of penalty.

Per contra, Mr. M. Ranka, learned Counsel appearing for the respondents contended that part of the cause of action arose, as observed by the

learned single Judge, at Madras, that the burden of proof in respect of non-notified goods lies on the Department to prove that they are smuggled

goods, that the availability of the alternative remedy is not an absolute bar for invoking the writ jurisdiction and the reasons assigned by the learned

single Judge in justification of entertaining the writ petition are tenable in law, that the failure to issue notice to the first respondent, who had judicial

possession being the owner of the television set or conduct an enquiry with or against him rendered the impugned proceedings unconstitutional and

ultra vires and that the submissions of the learned Counsel for the appellants are insipid and untenable and are liable to be rejected. The learned

Counsel for the respondents also gave a written arguments, which seems to have been prepared earlier, but submitted at the time of hearing.

Learned Counsel appearing on either side invited our attention to several decisions of the various High Courts and of the Apex Court in respect

of their respective stand point before us which were also brought to the notice of the learned single Judge and adverted to by him in the order

under challenge before us. In our view, we do not consider it appropriate to deal with all those decisions by undertaking a superfluous task, when

the principles laid down are well settled and what is actually in controversy and seriously disputed is the application of those well settled principles

to the facts and circumstances of the case before us.

So far as the maintainability of the writ petition in this Court is concerned, it is no doubt a fact that with the amendment introduced to Article 226

of the Constitution of India and the insertion of Clause (1), which has been subsequently renumbered as Clause (2) of Article 226 of the

Constitution of India, not with standing the fact that the seat of the Government or authority or the residence of such person whose action is

challenged or complained of is not within the territorial jurisdiction of a particular High Court directions, orders or writs envisaged under Article

226 of the Constitution could be issued to such persons by exercising its powers by any High Court within whose territorial jurisdiction the cause

of action wholly of in part arose. The question, therefore, that looms large for consideration is as to what, ""territories within which the cause of

action wholly or in part arises"" really means. It is by now well settled by several decisions of the High Courts as also the Apex Court that the

expression ""cause of action'''' means the bundle of factswhich the petitioner must prove, if traversed, to entitle him to a judgment in his favour by

the Courts and in determining the same, it must be decided on the facts pleaded in the petition, irrespective of the truth or otherwise of the

submissions made therein. The latest decision of the Apex Court in Oil and Natural Gas Commission Vs. Utpal Kumar Basu and Others, has, in

our view, dealt with the relevant principles. In State of Rajasthan and Others Vs. Swaika Properties and Another, , the Apex Court dealt with a

case, where the company which had its Registered Office at Calcutta owned a large chunk of land on the outskirts of Jaipur and the Special

Officer, Town Planning Department, issued a notice that the State Government proposed to acquire lands for a public purpose namely

implementation of a development scheme and the said notice was duly served on the respondent at their Calcutta office. When the Company

instituted a writ petition in the High Court of Calcutta challenging the acquisition proceedings, disapproving of the view taken by the Calcutta High

Court. Their Lordship of the Apex Court held that since the entire cause of action culminating in acquisition of lands under the relevant provisions

of the Act arose within the State of Rajasthan, mere service of notice at Calcutta on the Registered Office is no justification to claim that a part of

cause of action arose within Calcutta High Court''s jurisdiction. In Oil and Natural Gas Commission Vs. Utpal Kumar Basu and Others, noticed

supra, the petitioner-Company had its registered Office at Calcutta and it had read in Calcutta Newspaper ONGC''s advertisement inviting tenders

at Delhi for works to be executed in Gujarat and in response, the Company sent its tender to the Delhi address from Calcutta and also made

representation from Calcutta against non-consideration of its offer on the ground of its ineligibility because of its failure to fulfil the experience

criterion, the Apex Court held that it would not constitute an integral part of the cause of action. So far as the case on hand is concerned, it is the

second appellant who has passed the impugned order of confiscation and imposed a personal penalty against the second respondent. So far as the

television set is concerned, though it had reached Ahmedabad through a courier on being despatched from Madras, it was seized only at

Ahmedabad and the cause for any action in this writ petition could be, and as a matter of fact, is only the act of seizure and the subsequent passing

of order of confiscation and imposition of personal penalty and consequently, the bundle of all those events having occurred only and exclusively

within the City of Ahmedabad, no part of cause of action relating to the seizure, confiscation and levy of personal penalty, in respect of Sony

colour Television set in question could be legitimately claimed to have arisen either wholly or in part within Madras or any part of the area falling

within the territorial jurisdiction of this Court. So far as the search, seizure and confiscation of the other articles from the shop of the father of the

respondents are concerned there could be no iota of doubt that it is not within the jurisdiction of this Court and even what little could be attempted

to be said of the television set also cannot be said or asserted to support the claim of even any part of the cause of action having arisen within the

jurisdiction of this Court, leave alone the competency of the respondents herein to challenge the same by means of a writ petition. The fact that the

television set in question has been despatched from Madras will not in our view afford any cause of action or even constitute a part or particle of

bundle of facts forming any integral part of cause of action relating to the relief sought for in the writ petition. The goods were found in the godown

of the courier at the time of search. The second respondent has claimed even in his reply dated 12-12-1995 to the show cause notice issued by the

second appellant leave alone the statement given earlier at the time of seizure that the television set in question was purchased by the first

respondent on behalf of the second respondent at Madras for household use. He alone participated in the enquiry held without ever disclosing that

1st Respondent had any interest in the goods and the order dated 31-9-1996 came to be passed by the second appellant having his office at

Ahmedabad and served on the second respondent also at Ahmedabad. By merely claiming to have purchased the T.V. Set same at Madras or by

the more facts of having despatched the television in question from Madras to Ahmedabad alone, no part of the cause of action could be said to

have arisen in Madras, since it is not the purchase at Madras or the act of despatch from Madras, which constituted cause of action for either

seizure of confiscation of the television set in question. It is really the location of the goods at Ahmed-^ abad and the physical presence and

availability of the goods at Ahmedabad that gave the right and jurisdiction to the authorities at that place to initiate action and which goods come to

be seized on the same being found to be of foreign origin and completely unused, that was considered to be the really offending act, namely, the

presence of goods of foreign origin without any lawful explanation of its import and possession, that give rise for the impugned order of

confiscation. Merely by asserting and projecting for the first time a claim of the first respondent and by the fact of the joining of the second

respondent alone the cause of action cannot be pleaded to have arisen, even in part, at Madras and within the territorial jurisdiction of this Court. It

is not as though that after the order of confiscation only the first respondent came to know of the proceedings on the file of the second appellant. It

is seen from the order that the documents produced subsequently to explainithe acquisition of the television were produced apparently on obtaining

the same from the first respondent after the issue of show cause notice, since earlier not only it was not produced by the second respondent, but he

also appears to have told the authorities at Ahmedabad that he had no document on his hand then and there when inspite of all those the 1st

respondent did not prior to the filing of the writ petition approached the authorities the seizure was affected. For all the reasons stated above, we

are of the view that no part of the cause of action in relation to the impugned order resulting in confiscation and the imposition of personal penalty

on the second respondent, could be said to have arisen within the territorial jurisdiction of this Court. To test the tenability of the claim on behalf of

the respondents, if only the place of despatch of goods is to be taken as providing cause of action for an offence under the Customs Act and

particularly in the matter of challenge to an order of confiscation, it would amount to countenancing a claim for or justifying the institution of a case

in a Court of foreign jurisdiction outside the country challenging the order of confiscation of goods found illegally imported in this country. The

bundle of facts which constitute cause of action either wholly or in part in a case would also depend upon the nature of the action challenged or the

claim made and at any rate, in a matter relating to an order of confiscation, the cause of action could be said to have arisen only in the place, where

the goods have been found and seized initially, which came ultimately to be confiscated by passing an order at a place where the order of

confiscation has been made or where the office of the authority which passed the order of confiscation is situate. Since none of those facts had

occurred within the territorial limits of this Court, the writ petition cannot be maintained in this Court. Consequently, we are unable to approve of

the view taken by the learned single Judge in this regard, and we set aside the same.

Having regard to the view taken by us that this Court has no territorial jurisdiction to entertain the main writ petition itself, we consider it in

appropriate and wholly unnecessary to deal with the other grounds also, on which the learned single Judge has chosen to accord relief to the

respondents herein. The conclusions arrived at and the observations made in this regard by the Single Judge are, therefore, set aside. It is always

open to the respondents to vindicate their rights before the appropriate Court having jurisdiction over Ahmedabad, the place in which the seizure

has been affected and the order of confiscation came to be passed. The writ appeal, therefore, is allowed on this only ground. But, in the

circumstances of the case, there will be no order, as to costs. Consequently, CMP No. 8555 of 1997 is dismissed.