Ram Kishen Baheti v. The Union of India & Ors

.... .... Opposite parties ====================================================== For the Petitioner : Mr. Prabhat Ranjan, Advocate. For the Respondents : Mrs. Nivedita Nirvikar, Sr. Standing Counsel and Mrs. Archana Sinha, Jr. Standing Counsel. ====================================================== P R E S E N T : HONOURABLE MR. JUSTICE S.N. HUSSAIN ORDER 6 23-01-2013 Heard learned counsel for the petitioner and learned counsel for the opposite parties.

2. This petition has been filed by the petitioner for initiating a proceeding of contempt against opposite parties for the alleged deliberate and willful disobedience and violation of order dated 02.03.2012 by which CWJC No.10265 of 2011 was allowed with the following observations: “17. Considering facts and circumstances in their entirety, this writ petition is allowed and the Commissioner of Customs (P), Patna the aforesaid Patna High Court MJC No.2578 of 2012 (6) dt.23-01-2013 2 as well as the Assistant Commissioner (Refunds), Custom Headquarter, Patna are hereby directed to refund the aforesaid amount of Rs. 21,33,500.00 along with statutory interest (compound) at the rate of 6% per annum with effect from 30.08.2001, the date on which the petitioner’s appeal was allowed by the Appellate Tribunal till the actual date of payment. The said payments must be made by the said authorities to the petitioner within two months from the date of receipt/production of a copy of this order, failing which, consequences. they will have serious initiate a proceeding against

18. However, the Customs Department will be at liberty employees/officers, who are found to be responsible for sale of articles, loss of public exchequer and also for making the concerned file traceless and recover the loss to the Department from their pockets apart from punishing them for their aforesaid misdeeds”

3. It transpires that the said order was challenged by the opposite parties in L.P.A. No.928 of 2012, which was dismissed and the order of this court was affirmed. Thereafter the opposite parties filed Petition of Special Leave to Appeal (Civil) No.35855 of 2012, which was also dismissed by the Apex Court on 07.12.2012. Hence the said order of this court dated

02.03.2012 passed in CWJC No.10265 of 2011 has been upheld by the Apex court and has attained finality.

4. The grievance of the petitioner is that in spite of the aforesaid order of this court and in spite of there being no order of stay passed either by the Division Bench of this court or by the Apex Court, the said amount as directed by this court had not Patna High Court MJC No.2578 of 2012 (6) dt.23-01-2013 3 been paid to him although he had been approaching the authorities through his counsel for the same.

5. On the other hand, learned counsel for the opposite parties submits that petitioner is merely a transporter and not the actual owner of the goods but the said fact was not raised before the court, although the amount was to be given to the owner and should have been brought to the notice of the court. It is further submitted that if the actual owner comes and raises his claim before the opposite parties, they will be in difficulty if the payments are made to the transporter because the amount to be paid is for the goods.

6. Learned counsel for the opposite parties states that no authorization slip was ever given by the petitioner to the counsel appearing for him before the authority to collect the cheque and only a vakalatnama was produced which was singed in English, whereas in all other documents including affidavit of this M.J.C. case the petitioner had signed in Hindi. In the said circumstances the authorities directed the petitioner to produce certain documents to ascertain the facts for the subjective satisfaction of the authorities concerned. In circumstances, learned counsel for the opposite parties avers that there was a genuine apprehension which resulted in stoppage of Patna High Court MJC No.2578 of 2012 (6) dt.23-01-2013 4 Cheque No.361694 dated 31.12.2012 drawn on the State Bank of India, Farbishganj Branch in favour of the petitioner by the authorities for a sum amounting to Rs.41,32,574.00.

7. There is no dispute with respect to the calculation of the amounts payable by the authorities and the reply of petitioner’s counsel to the statements of learned counsel for the opposite parties that he went the authorities with authorization slip of the petitioner for fetching the amount but in spite of that he was deprived on the basis of said cheque given to him, which was later directed to be withheld by the authorities concerned.

8. In the facts and circumstances of the case, the question as to whether the authorization slip was issued by the petitioner and was produced before the authority is a disputed question of fact in which this court does not want to go.

9. The amount fixed by the court has already been calculated by the authorities concerned and their learned counsel is present with a fresh cheque dated 15.01.2013 drawn on the State Bank of India, Farbishganj Branch in favour of the petitioner signed by the concerned authority for a sum amounting to Rs.41,32,574.00. In the said circumstances, learned counsel for the petitioner is directed to return the earlier cheque dated Patna High Court MJC No.2578 of 2012 (6) dt.23-01-2013 5

31.12.2012 to learned counsel for the opposite parties. The said old cheque is returned before the court to learned counsel for the opposite parties.

10. The petitioner is himself present in court and his signatures both in Hindi and English are obtained on a paper in presence of learned counsel for the opposite parties and from perusal thereof it appears that his signature resembles the petitioner’s signature on the affidavit of the M.J.C. petition. In the said circumstances, the aforesaid fresh Cheque dated 15.01.2013 is handed over to learned counsel for the petitioner to give it to the petitioner in full and final satisfaction of his claim with respect to the instant matter.

11. The apprehension of the opposite parties that the owner of the goods will come to the opposite parties and claim the amount paid to the petitioner which is in lieu of the goods seized is concerned, the owner of the goods had given it to the petitioner, who according the opposite party was transporter and hence the responsibility of those goods was upon the petitioner until the goods reached their destination. In the said circumstances, any loss or damage to the goods would entitle the owner to raise his claim against the transporter, specially when the opposite parties have paid the entire amount as found just and Patna High Court MJC No.2578 of 2012 (6) dt.23-01-2013 6 proper by this court to the transporter and no amount of the transporter or the actual owner remains due with the opposite parties in connection with the instant matter. It hardly makes a difference, if the transporter and the actual owner is the same as claimed by the petitioner or the petitioner is merely a transporter of the goods of any owner including Birendra Sarkar as claimed by the opposite parties.

12. In the said circumstances, this M.J.C. petition is disposed of. However, it may be noted that this order is being passed in the special facts and circumstances of this case and it should not be used as precedent in other cases. (S.N. Hussain, J) Harish/-