Orissa High Court
Smt. Kamalarani Ray vs Union Of India (Uoi) on 17 October, 1989
Equivalent citations: 1990(25)ECC259, 1990(49)ELT52(ORI)
JUDGMENT S.C. Mohapatra, J.
1. Plaintiff is the appellant having failed to get a direction for return of the gold seized by the defendants in exercise of powers under the Gold (Control) Act, 1968 (hereinafter referred to as the Act).
2. On 4-2-1974, defendant No. 2 searched house of the plaintiff in absence of her husband. In spite of plaintiff informing them that there is no other gold except 18 bangles in the Iron safe, they wanted to break open the same for which plaintiff opened the same and brought out the bangles in a cloth bag. Defendant No. 2 demanded to hand over the same to him for seizure but plaintiff refused for which former tried to snatch away the same. In hope of avoiding the seizure, she threw the gold ornaments with bag inside the well in compound of the house plaintiff's husband arrived at that time and explained to defendant No. 2 that bangles are his Stridhan properties and no provision of the Act has been violated. In spite of the same, the bag containing the gold ornaments were brought out of the well with assistance of a diver and taking husband of the plaintiff to the police station seized the same. Accordingly, suit has been filed claiming the seizure to be illegal.
3. Case of the defendants is that house of plaintiff's husband was searched in his presence but plaintiff obstructed. Taking keys of the iron safe from her husband, she went inside the room and closed the door. At that time the gold control staff heard something being thrown to the well. After local police arrived, gold ornaments were recovered from the well and were seized. plaintiff's husband was unable to explain about the seized gold. Thereafter, following the legal formalities and procedure, gold was found to be primary gold and accordingly, the same was confiscated. Plaintiff who was present at the time of seizure did not make any representation, though she is the owner of the gold although she was fully aware of the proceeding against her husband.
4. Plaintiff examined four witnesses and proved the notice to her husband as well as her objection amongst other documents. Besides, she produced a piece of gold bangle marked M.O.I. Defendants examined three witnesses, proved the seizure list, list memo certificate, order confiscating the gold, complaint by the plaintiff in criminal court, his initial deposition, order sheet in the said case and deposition of plaintiff in the said case.
5. Trial Court settled the following issues:
(1) "Is the suit maintainable?
(2) Has the Court jurisdiction to try the suit?
(3) Is the service of notice under Section 80, C.P.C. legal & (4) Whether the gold seized are ornaments?
(5) Has the provisions of Gold Control been violated?
(6) Are the seized gold, the Stridhan and personal property of the plaintiff?
(7) To what relief, if any the plaintiff is entitled?
6. Trial Court on assessment of evidence held that gold bangles seized do not belong to plaintiff, they are not ornaments as defined in the Act and the suit at the instance of the plaintiff is maintainable.
7. Mr. Ashok Mukherjee, learned counsel for the appellant submitted that proceeding for confiscation on consequent confiscation of gold is contrary to the provision of the Act and accordingly, the gold seized being ornaments is liable to be returned to the plaintiff who is the owner of the seized articles.
8. Relying upon the findings of the authorities under the Act in Ext. 2 and D as well as the findings of the Trial Court. Mr. A.B. Mishra, learned Senior Standing Counsel of Central Government submitted that the suit is not maintainable in view of Section 84 of the Act.
9. The Act is a self-contained legislation. Exhaustive provisions have been made under the Act with regard to presumptive evidence, procedure for confiscation proceeding, right of appeal and further scope to challenge orders in proceedings up to Supreme Court. Even if there would not have been any provision like Section 84 giving finality to decisions and bar to challenge, there being exhaustive provisions for adjudication of Civil Rights to property i.e. gold is the forums provided, a suit in the Civil Court would be impliedly barred as provided in Section 9, C.P.C. However, such exclusion of jurisdiction of Civil Court would not affect jurisdiction of the Civil Court to examine into cases where he provisions of the Act have not been complied with or the statutory Tribunal has not acted in conformity with fundamental principles of judicial procedure and to interfere if it finds the order of the special Tribunal is unfair, capricious or arbitrary. While inter-(sic)ering with the decision of the Tribunal, it cannot substitute its own decision but shall (sic)ive a direction to dispose of the proceeding in accordance with law. This has been laid (sic)lown by the Full Bench of this Court in the decision reported in ILR 1975 Cut. 789 (Man(sic) Jal and Ors. v. Bhagaban Rai and Ors.).
10. On the own showing of the Tribunal under the Act and the defendants in be written statement, plaintiff obstructed the search from the very begining. Even accepting the defence case, plaintiff threw the cloth bag into the well wherefrom it was (sic)covered to be seized. Husband of the plaintiff specifically asserted before the statutory tribunal that the gold seized belonged to the plaintiff. There is no provision in the Act (sic) a person claiming the seized gold is to file a representation failing which his right to (sic) property shall be extinguished. In such circumstances, the adjudicating authority was (sic)ced with the question of ownership of the gold seized.
11. Under Section 79 of the Act provides for opportunity to be given to the owner (sic) the gold before passing order of adjudication of confiscation or penalty. It reads as follows:
"79. Giving of an opportunity to the owner of gold, etc. No order of adjudication of confiscation or penalty shall be made unless the owner of the gold, conveyance or animal or other person concerned is given a notice in writing:
(i) informing him of the grounds on which it is proposed to confiscate such gold, conveyance or animal or to impose a penalty; and
(ii) giving him a reasonable opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the confiscation or imposition of penalty mentioned therein and, if he so desires, of being heard in the matter :
Provided that the notice and the representation referred to in this section may, at the request of the owner of other person concerned, be oral:
Provided further that where no such notice is given within a period of six months from the date of the seizure of the gold, conveyance or animal or such further period as the Collector of Central Excise or Customs may allow, such gold, conveyance or animal shall be returned after the expiry of that period to the person from whose possession it was seized.
Explanation. - Where any fresh adjudication is ordered under this Act, the period of six months specified in the second proviso shall be computed from the date on which such order for fresh adjudication is made."
On a bare perusal of the provision, there is no doubt that opportunity to show cause shall be given to the owner or other person concerned before an order of confiscation is made. Where there is a dispute with regard to the ownership of the gold seized, and persons concerned are known to the adjudicating authority, it cannot pass the order of confiscation by giving opportunity to the person from whom the goods are seized. Any adjudication and order of confiscation without notice to the person concerned would be in violation of the statutory provision and principle of natural justice as embodied in the said proviso is violated.
12. Plaintiff claims to be the owner of the gold seized. Under Section 99 of the Act any person who was in possession, custody or control of the gold shall be presumed, unless the contrary is proved, to be the owner thereof. Gold was recovered from the well inside the house where plaintiff has a right of residence. Such house is not in exclusive possession of the husband of plaintiff. Admittedly, husband of the plaintiff did not throw the bag containing gold inside the well. Without giving opportunity to plaintiff, adjudicating authorities could not have decided the ownership of gold when husband of the plaintiff clearly asserted that gold seized belonged to the plaintiff. Any finding whether gold seized was ornament or primary gold would not bind the plaintiff. Similarly, absence of further challenge to the order of confiscation and penalty by husband of the plaintiff would not bind the plaintiff. There being exhaustive provisions in the Act of adjudication of ownership and nature of the gold seized, Civil Court cannot enter into such question. It has only to interfere with the order which has not been rendered following the norms of the judicial procedure as laid down under the Act and cannot substitute its view to the views of statutory authority since it is not the appellate authority.
13. Mr. Mishra, learned counsel for the respondents submitted that Section 108 of the Act is also a bar to the suit. It reads as follows :
"108. Protection of action taken in good faith. No suit prosecution or other legal proceeding shall lie against the Central Government, the Administrator, any Gold Control Officer or any person authorised by the Central Government or the Administrator for performing any functions under this Act, for anything which is in good faith done or intended to be done under this Act or any rule or order made thereunder."
Any action taken in contravention of clear provision of the Act in Section 79 cannot be said to be done in good faith. In a republic government by rule of law no person violating the provision of law can be said to have acted in good faith specially when such persons are the creatures of the statute itself. Accordingly I am not inclined to accept the contention of Mr. Mishra.
14. From the aforesaid discussions, I am satisfied that the suit is to be decreed to the extent that gold seized cannot be confiscated without giving opportunity to plaintiff under Section 79 and defendants are directed to take steps so that the adjudicating authorities dispose of the proceeding for confiscation after giving notice to the plaintiff. Till then, the gold seized cannot be disposed of in any manner.
15. In the result, first Appeal is allowed. No costs. Trial Court shall return M.O.I, to the plaintiff after the period of appeal against this judgment expires.
16. Appeal allowed.