1989 Supreme(Del) 362

High Court Of Delhi
ASHOK DHAWAN - Appellant
Versus
UNION OF INDIA - Respondent
Civil 1959 of 1987
Decided On : 09/15/1989

Demurrage is not chargeable on baggage.

Headnote:

CUSTOMS - Baggage - Demurrage - Whether demurrage is chargeable on baggage - Whether the Chairman of the International Airports Authority of India applied his mind properly in not waiving the said charges wholly - Whether a mandamus can issue directing the International Airports Authority of India and/or the Customs Authorities to trace the missing packet within a specified period and release/deliver it to the petitioner, failing which give the petitioner equivalent compatible items as contained therein and/or money to purchase the same, in the peculiar facts of this case.

Fact of the Case:

The petitioner, an Indian citizen, returned to India on 21st March, 1986 on a transfer of residence intending to permanently settle here. On arrival at Palam Airport, Delhi, he claimed and was granted the benefits of Transfer of Residence under the Transfer of Residence Rules, 1978. Subsequently, certain other personal and household effects belonging to the petitioner arrived in Delhi and on 20th August, 1986 he again claimed and was allowed the benefit under Rule 2 of the Transfer Rules. Before returning to India, the petitioner had purchased a personal computer on 25th August. 1985. The said computer arrived at Palam Airport in three packets on 19th July, 1986. The petitioner was informed about the arrival of the computer on 21st July. 1986. On 29th July 1986 the petitioner claimed transfer of residence benefit under Rule 4 of the Residence Rules in respect of the personal computer being a professional equipment, and filed a baggage declaration form. On 25th July, 1986 when the petitioner filed the said form, the three packets containing the said computer were brought, by an official of respondent No. 6, to the Superintendent, Air Customs for examination. The examination took place in the presence of the petitioner, but the Superintendent did not permit the petitioner to clear the same without payment of duty. On 28th July, 1986 the three packets were again examined by the Assistant Collector, Air Customs, but he also did not allow their clearance without payment of duty. Consequently. the said computer contained in three packets was detained/retained by the Customs Authorities. The petitioner then filed an appeal, which was dismissed on 29th September, 1986 by the Collector of Customs (Appeals ). Thereafter he filed a revision petition before the Central Government and the said petition was dismissed on 24th February, 1987. On 25th May, 1987, the petitioner filed the present writ petition challenging, inter alia, the order of the Central Government dated 24th February, 1987. On 14th July, 1987, the Court directed notice to show cause to issue as to why the writ petition be not admitted. Subsequently; the respondents appeared and sought time to file replies. On 15th October, 1987, Mr. Watwani appearing for respondents 1 to 5 i. e. the Union of India and the Customs Authorities made a statement that the Central Government was reconsidering the order dated 24th February, 1987 and sought an adjournment. On 10th November, 1987, the Central Government pasted an order holding that the petitioner was entitled to the benefits of duty free import under rule 4 of the Residence Rules with respect to the computer i. e. professional equipment, and permitted its clearance in terms thereof. As a result of this order, the controversy in the writ petition arrowed down to prayers (d) and (f) pertaining to warehouse/demurrage charges and prayer (g) any other appropriate relief which the petitioner is found entitled. But, when the petitioner went to collect his computer, which was in three packets, after the abovementioned order dated 10th November, 1987, he learned that one of the packets was not traceable. Consequently, on 11th January, 1988, this Court directed respondent No. 6 to trace out the said packet and given the petitioner inspection of all the three packets on 12th January, 1988. On 14th January, 1988 counsel for respondent No. 6 prayed for further time to trace out the third packet. On 25th January, 1988, Ms. Suman Garg, Legal Officer of respondent No. 6 appeared and said that the petitioner had been granted inspection of two packets on 15th January, 1988, but the third packet was still not traceable and efforts to find it were being made. On 3rd February, 1988. Ms. Garg again appeared and stated that the third packet was still not traceable but efforts to find it were continuing. On 25th February, 1988, Mr. Mehta, Cargo Superintendent of respondent No. 6 appeared and stated that the third packet had not yet been traced and an information had been lodged with the police in January, 1988. However, he added that respondent No. 6 was still hopeful of finding the packet. The petitioner informed the Court that his professional work was being hampered and he needed the computer for his work. He stated that the missing packet contained the printers etc. and consequently if he was given the two packets, that were with respondent No. 6, he could carry out his work at least partially. On 25th February, 19 8 we directed respondent No. 6 to release the two packets available with them to the petitioner, without payment of handling charges and/or demurrage and without prejudice to the rights and contentions of parties on this aspect. On 12th March, 1988 the two packets were released to the petitioner. On 16th May, 1988, counsel for respondent No. 8 stated that the third packet is not traceable. Thereafter, we permitted the petitioner to file an affidavit indicating, inter alia, the costs of the items in the third packet. Respondent No. 6 was permitted to file a reply to the said affidavit.

Finding of the Court:

1. Demurrage is not chargeable on baggage. 2. The Chairman of the International Airports Authority of India did not apply his mind properly in not waiving the demurrage charges wholly. 3. A mandamus can issue directing the International Airports Authority of India and/or the Customs Authorities to trace out the missing packet within a specified period and release/deliver it to the petitioner, failing which give the petitioner equivalent compatible items as contained therein and/or money to purchase the same, in the peculiar facts of this case.

Issues: 1. Whether demurrage is chargeable on baggage? 2. Whether the Chairman of the International Airports Authority of India applied his mind properly in not waiving the demurrage charges wholly? 3. Whether a mandamus can issue directing the International Airports Authority of India and/or the Customs Authorities to trace out the missing packet within a specified period and release/deliver it to the petitioner, failing which give the petitioner equivalent compatible items as contained therein and/or money to purchase the same, in the peculiar facts of this case?

Ratio Decidendi: 1. Demurrage is not chargeable on baggage as it has been specifically excluded from the definition of cargo in Regulation 2 (b) of the Regulations 1980 issued by the International Airports Authority of India, and no other provision has been pointed out by which demurrage or charges has been sought to be charged on baggage. 2. The Chairman of the International Airports Authority of India did not apply his mind properly in not waiving the demurrage charges wholly as he did not consider the fact that the personal computer which was part of the professional equipment of the petitioner on transfer of residence was contained in three packets. Since one of the three packets of the said computer was untraceable, the computer in fact was not fully functional as admittedly the untraceable packet contained twoprinters and the connecting cables and other accessories. 3. A mandamus can issue directing the International Airports Authority of India and/or the Customs Authorities to trace out the missing packet within a specified period and release/deliver it to the petitioner, failing which give the petitioner equivalent compatible items as contained therein and/or money to purchase the same, in the peculiar facts of this case, as the petitioner is entitled to all the three packets of his computer in view of the order of the Central Government of 10th November, 1987 and the out of charge order issued and a mandamus directing respondent No. 6 and the Customs authorities to trace the third packet and release/deliver it to the petitioner without payment of duty or demurrage can issue.

Final Decision: The writ petition is allowed with costs. Counsel's fee Rs. 2. 000. 00. A mandamus is issued to respondents 4 to 6 to trace out the third packet of the computer containing the printers Epson model RX-60-P80ra and Brother Model DX15-XL and the connecting cables and packet to the petitioner without payment of duty or demurrage failing which deliver the nearest equivalents thereto compatible with the computer and/or the value thereof within three months.