1991 Supreme(Mad) 738

High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE BAKTHAVATSALAM
Gipoint Development Limited - Appellant
Versus
Collector of Customs, Madras - Respondents
Writ Petiition Nos. 10045, 10046, 10939 and 10940 of 1991
Decided On : 03 October 1991

Foreign companies who have contravened the provisions of the Customs Act are not entitled to claim the fundamental right guaranteed under Art. 19(1)(f) of the Constitution of India. They are also not entitled to claim the right under Art. 31(1) of the Constitution of India as it stood then.

Headnote:

CUSTOMS ACT - IMPORT - RE-EXPORT - WRIT OF MANDAMUS - JURISDICTION - FOREIGN COMPANY - FUNDAMENTAL RIGHTS - ARTICLE 226 OF THE CONSTITUTION OF INDIA - ARTICLE 300A OF THE CONSTITUTION OF INDIA - ARTICLE 19(1)(F) OF THE CONSTITUTION OF INDIA - ARTICLE 31(1) OF THE CONSTITUTION OF INDIA - IMPORT AND EXPORT (CONTROL) ACT, 1947 - SECTION 3 - SECTION 111(D) AND (F) - SECTION 129A - IMPORT POLICY 90-93 AM, APPENDIX 2, PART-B, SI. NOS. 48 AND 172 - Held, that the petitioners herein are not entitled to obtain a writ ofmandamusfrom this Court on the facts of the cases on hand. The petitioners' conduct does not compel me to exercise my discretion under Article 226 of the Constitution of India in favour of them. Further the disputed facts are to be gone into which cannot be done in a writ petition.

Fact of the Case:

The petitioners, Hongkong Polychem Company and Gipoint Development Limited, both incorporated under the laws of Hongkong, filed writ petitions praying to issue a writ of mandamus directing the respondents to permit the re-export of the goods covered by Bill Lading No. KKDU 823-801951 and No. KKDU 823-801929, being shoe uppers, without any assessment being done and without charging any duty, fine or penalty. The petitioners alleged that they sold and supplied the goods to M/s. Stylo Footwear, New Bombay, who placed orders for import of diverse quantities of insoles for footwear, representing that they were a small-scale industry and actual user of raw materials for manufacture of footwear and wanted to import the said insoles under the name "O.G.L." and requested that the goods be sent to them on sight/D.P. basis through bankers, Bank of Baroda, Bombay. Believing the representation, the petitioners agreed to sell and accordingly supplied the goods. However, M/s. Stylo Footwear refused to take delivery of the goods despite the fact that they informed the Bank by letter dated 2-11-1990 that they are "actual users" of the goods, that the said goods are eligible for imports under O.G.L. and that the goods imported from the petitioners are neither banned nor restricted. The Bank did not retire the documents by making payment and consequently the goods were not unloaded at Madras Port. The petitioners requested the shipping company and their agents at Taipei not to unload the goods at Madras but to bring it back to Hongkong and the freight and incidental charges thereof would be paid by the petitioners. Since the captain of the vessel delayed in filing of the Import Manifest, the respondents insisted that the Manifest be filed and the goods be unloaded as they were already rummaging various goods. The respondents therefore in their general rummaging operations insisted upon inspecting and examining the said goods and on investigation they prima facie formed an opinion that the goods have been imported by a person who is not in existence and also initiated action against the said goods by examining the same extensively and drew samples for obtaining technical opinion with regard to the classification of the said goods. The respondents were also of the view that the goods as declared and found on examination could not be used as "insoles for footwear" and as such would not be eligible for any concessional rate of duty and as such would require specific import licence as the same could not be covered under O.G.L. provisions of the Import Policy in force. The petitioners made a requisition on 23-11-1990 to the second respondent herein that they may be allowed to get the said goods re-exported to Hongkong agreeing to pay all charges required, i.e., the freight, rental for the containers for the purpose. The respondents continued investigation and allowed the said goods to remain in containers. Since there was no response from the second respondent, the petitioners appointed an Advocate from Bombay instructing him to make appropriate representations of the Customs Authorities for obtaining suitable order of re-export. As no reply was for the coming to the said representations, the petitioners' Advocate wrote another letter on 7-1-1991 reminding the Central Board of Excise and Customs about the representation made earlier requesting for the same relief. Thereafter, the petitioners-companies through the said Advocate made representations at Madras before the respondents and made a request that the goods to allowed to be re-exported. By that time, a show cause notice was issued by the respondents to the Importer-Stylo Footwear as also to the Marine Container Service (South) Private Ltd., and Messrs K. Steamship Agencies Private Limited, Madras calling upon all of them to show cause as to why the goods imported by not confiscated on the ground that there was a specific misdeclaration made by the shipping company. At this stage, the petitioners have come to this court, with these allegations to direct the respondents to permit the re-export covered by each of the bills of lading.

Finding of the Court:

The court held that the petitioners are not entitled to obtain a writ of mandamus from this Court on the facts of the cases on hand. The petitioners' conduct does not compel the court to exercise its discretion under Article 226 of the Constitution of India in favour of them. Further the disputed facts are to be gone into which cannot be done in a writ petition. The court also held that the petitioners herein are not entitled to claim any of the rights under Part III of the Constitution of India or at least for the present case under Arts. 19(1)(g), (f) and 300A of the Constitution of India. The court further held that the petitioners cannot claim to be the owners of the property. The Bank has not come before the court, nor the petitioners have impleaded the Bank as a respondent here. As such, in a petition under Article 226, the petitioners herein cannot be allowed to enforce or defend somebody else's rights. In the instant cases, it is the right of the Bankers and not the petitioners herein are infringed, if it is infringed at all. The court also held that the petitioners are not entitled to get an order of the re-export from the hands of this Court.

Issues: 1. Whether the writ petitions can be maintained under Article 226 of the Constitution of India, by this court? 2. Whether a writ can [be issued] "for any other purpose"? 3. Whether the petitioners are entitled to obtained writ ofmandamusform this Court on the facts of the cases on hand?

Ratio Decidendi: 1. The court held that the petitioners are not entitled to claim any of the rights under Part III of the Constitution of India or at least for the present case under Arts. 19(1)(g), (f) and 300A of the Constitution of India. The court also held that the petitioners cannot claim to be the owners of the property. The Bank has not come before the court, nor the petitioners have impleaded the Bank as a respondent here. As such, in a petition under Article 226, the petitioners herein cannot be allowed to enforce or defend somebody else's rights. In the instant cases, it is the right of the Bankers and not the petitioners herein are infringed, if it is infringed at all. 2. The court held that the petitioners are not entitled to get an order of the re-export from the hands of this Court.

Final Decision: The writ petitions are dismissed.