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1988 DIGILAW 82 (GAU)

Hassaram K. Mahtani Partner of M/s Kingway, Lakhtokia Guwahati v. Union of India

1988-05-30

A.RAGHUVIR, S.P.RAJKHOWA

body1988
Raghuvir, C. J. — The firm Messrs Kingway of Lakhtokia is the writ petitioner. The firm through its partner K. Mahtani purchased 12 pieces of fabrics measuring total 13.20 meters at Rs. 55/-per piece from a Bomay way-side hawker named Feriwalla. The Superintendent (Technical). Customs and Central Excise, Gauhati as respects the 12 pieces issued a show cause to the firm to explain as to why it should not be con­fiscated under section 111 of the Customs Act, 1962. The firm .explained at Bombay the way-side hawker did not issue any cash memo or receipt therefore they are unable to produce any document. The Mahtani represented he did not cut or remove the numbers as found on the fabrics. The Superintendent (Tech) or the Assistant Collector, Customs & Central Excise, Gauhati accepted the explanation and released the fabarics in favour of the firm. The Collector of Central Excise, Shillong, however, gave notice to the firm as to why the “order of release” should not be reviewed. He perused the explanation of the firm which was similar to the one submitted earlier in these proceedings. The Collector of Central Excise held- “The goods are obtained in a way that made verification impo­ssible. The Feriwalla is unavailable and cannot be contacted. It is quite reasonable to assume that he does not exist. I consider that the burden of proof has not been satisfactorily discharged. I hold that the goods are smuggled. I, accordingly, confiscate the fabrics valued atRs. 545.45 under section 111 (d) & (p) of the Customs Act, 1962, I also impose a penalty of one hundred rupees”. The order of release was reversed. The 12 pieces of cloth were thus confiscated. This order was assailed by the firm unsuccessfully before the Government of India in a revision who recited “the firm cannot claim they were not aware cloth is liable to be confiscated'1. The revision was rejected. The order of the Collector as well as the order passed by the Government of India are assailed in the instant writ petition. The learned counsel for the firm at the outset argued the reviewing authority i. e. the Collector exceeded his power in passing the order. The Board of Customs had the power to review the order. The Collector had no power to review, therefore, the two orders assailed are illegal and void. The learned counsel for the firm at the outset argued the reviewing authority i. e. the Collector exceeded his power in passing the order. The Board of Customs had the power to review the order. The Collector had no power to review, therefore, the two orders assailed are illegal and void. It is seen the Collector in the order referred to section 130 of the Customs Act, 1962. Besides a Notification was also referred showing the Board had delegated the power under section 152 (a) which reads as under: “(a) Any power exercisable by the Board under this. Act shall be exercisable also by a Collector of Customs empowered in this behalf by the Central Government.” The Collector in the order referred to the Notification M. F. (D. R. & C. I.), No.- 101 Cus dated July 1st, 1964 and stated he was exercising the delegated power to pass the order. In the counter affidavit- in this case it is reiterated. The learned counsel for the firm argued that a copy of tae Notification stated in the order is not produced before the'--Court-therefore it should be held that the Collector of Customs is not enable to exercise the jurisdiction. We are unable to accept this argument. In our view clause (2) of section 130 is complete answer to the objection that is raised on behalf of the firm. “130, Power of revision of Board or Collector. (1) ... (2) The Collector of Customs may of his own motion or otherwise call for and examine the record of any proceeding in which an officer of customs subordinate to him has passed any decision or order under this Act (not being an order passed in appeal under sec.128) for the purpose of satisfying himself as to the correctness, legality or propriety of such decision or order and may pass such order thereon as he thinks fit.” It is argued on behalf of the firm that clause 2 provision was not in existence at the relevant time when the Collector passed the order. This is merely asserted but no material is placed before this Court to support the contention. The learned counsel for the firm next submited that the order passed by the Government is a quasi judicial order yet the order does not set out reason for rejecting the revision. This is merely asserted but no material is placed before this Court to support the contention. The learned counsel for the firm next submited that the order passed by the Government is a quasi judicial order yet the order does not set out reason for rejecting the revision. The impugned order is not a speaking order and if not for any other ground on the ground for non speaking order the order is liable to be quashed. The counsel referred AIR 1964 SC 1140 , Indo-China S. Navigation Co. Ltd. vs. Jasjit Singh, in particular the head-note (b) to indicate that the entire proceeding before the Assistant Collector or the Collector or before the Government of India was a quasi judicial proceeding therefore a speaking order should have been passed by the Government. Because the order of the Government is not a speaking order it is argued the order is nonest in law. On this question it may be necessary to state the evolution of the authorities pronounced by the Supreme Court. In AIR 1969 SC 414 Som Datt Datta vs. Union of India practice followed in United Kingdom v/as referred. It was stated-”In English law there is no general rule apart from the statutory requirement that the statutory tribunal should give reasons for its decision in every case,” (Para II.) The case in U. K. arose under the Health Service Act, 1945. The statute referred to in the above case is. Tribunals and Inquiries Act, 1958 (S. 12) (6 and 7 Elizabeth 2 C.66, which provides on request a subordinate authority do supply to a party genuinely interested the reasons for its decision. Section 12 of the Act impels the tribunal must give a written or oral statement of the reasons for the decision, if requested to do so on or before the giving or notification of the decision- The statement may be refused or the specification of reasons restricted on grounds of national security, and the tribunal may refuse to give the statement to a person not principally concerned with the decision if it thinks that to give it would be against the interest of any person primarily concerned. There is no statute in India analogous to Tribunals and Inquiries Act, 1958. There is no statute in India analogous to Tribunals and Inquiries Act, 1958. The Supreme Court having considered the above statute further held: “Apart from any requirement imposed by the statute or statutory expressly or by necessary implication, we are unable to accept the contention of Mr. Dutta that there is any general principle or any rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision.” The ratio of that case was reviewed in AIR 1976 SC 1785 : The Siemens Engineering and Manufacturing Co. of India Ltd. vs. The Union of India, and it was held i “It is now settled law that where an authority makes an order exercise of a quasi-judicial function, it must record its reasons in support of the order it makes” (Para 6). Thus there is a departure, from the earlier dictum laid by the Supreme Court referred earlier. However, it was explained-”The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law. The Government of India also failed to give any reasons in support of its order rejecting the revision application. But we may presume that in rejecting the revision application, it adopted the lame reason which prevailed with the Collector. The reason given by the Collector was as already pointed out hardly satisfactory and it would, therefore, have been better if the Government of India had given proper and adequate reasons dealing with the arguments advanced on behalf of the appellants while rejecting the revision application” The above decision explain in revision the order need not be always a speaking order. It is not that a speaking order, if passed, would be an illegal order. It is desirable a speaking order be passed and in the absence of it, it can be understood to have affirmed the reasoning and decision passed in the earlier authority. This case is an instance where reasons given by the appellate authority were not proper therefore the non-speaking order in revision was quashed. It is desirable a speaking order be passed and in the absence of it, it can be understood to have affirmed the reasoning and decision passed in the earlier authority. This case is an instance where reasons given by the appellate authority were not proper therefore the non-speaking order in revision was quashed. Had it been a case where right reasons would have been set out the order could not have been quashed. Now before we conclude on this aspect it may be necessary to refer to one more case in AIR 1977 SC 567 Tara Chand Khatri vs. Municipal Corporation of Delhi and others, where it has been observed : “Apart from any requirement imposed by the statute or statutory rule either expressly or by necessary implication, there is bo legal obligation that the statutory tribunal should give reasons for its decision. There is also no general principle or any rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision”. The ratio in this case is what has been stated in AIR 1969 SC 414 where the dicta laid in AIR 1966 SC 671 was reviewed. It was held an order of an administrative tribunal rejecting a revision application cannot be pronounced to be invalid on the sole ground that it does not give reasons for rejection. It is further ordered : “ ... there was a vital difference between the order of reversal by the appellate authority and the order of affirmance by the revising authority rejects a revision application stating that there was no valid ground for interference with the order of the subordinate authority in such a case, it could not be held that the order was arbitrary or that there was no trial of the revision application.” One of the Judges explained in a separate judgment:-Ordinarily, the appellate or revisional tribunal shall give its own reasons succinctly; but in a case of affirmance where the original tribunal gives adequate reasons, the appellate tribunal may dismiss- the appeal or the revision, as the case may be, agreeing with those reasons”. Judicial Review of Administrative Law (Second Edition), Prof. S. A. De Smith (Page 418) stated : “ ... Judicial Review of Administrative Law (Second Edition), Prof. S. A. De Smith (Page 418) stated : “ ... If, course, a tribunal is required by statute to declare its reasons or its findings on the material facts, an order of mandamus may be obtained to compel the tribunal to perform its legal duty ... Where a tribunal that is ,not expressly obliged to give reasons for its decisions chooses not to give any reasons for a particular decision, it is not permissible to infer on that ground alone that its reasons for that decision were bad in law. Even if it gives reasons which are ex facie insufficient in law to support its decision, the Court will not necessarily assume that these are the sole reasons on which the tribunal has based its decision. (See Cf. Davies vs. Price, (1958) 1 WIR 434 at 440 and R. V. Minister of Housing and Local Government. Ex. P. Chichestar R.D.C., (1960) 1 WIR 587).” Now the above discussion amply demonstrates the correctness of the method adopted in the instant case by the Government in passing the order. In that view the objection raised cannot be sustained. Lastly it is argued on behalf of the firm that the date when the order was passed the revisional authority should have informed the firm of the date of hearing and a hearing should have been given to the firm. This again raises a shade as to the content of natural justice. Speaking of practice adopted by the Govt. of India in hearing the revision it is not stated that usually notice of posting of a case on a particular date is given to the party. Therefore, the objection founded upon such a practice has no foundation. In the instant case the revision has been filed by the writ petitioner. He had taken the grounds on the memo. The Government of India considered the same from the perspective of the grounds of the Memo of revision. Therefore, in our view, this ground fails. For all the aforesaid reasons we do not find any merit in the writ petition and it is therefore dismissed. No costs.