JAGAN NATH Vs. HAR LAL

JUDGEMENT

(1.) This petition under Article 227 is directed against the order of the competent authority under Slum Areas (Improvement and Clearance) Act, 1956, made on 15th January, 1974 granting permission in favour of respondents 1 and 2 herein to institute eviction proceedings in respect of disputed premises No. 583, Kucha Pati Ram, Delhi. The respondents 1 and 2 had filed an application under Section 19(1)(a) of the aforesaid Act seeking permission to institute eviction proceedings against the petitioner and respondents 3, 4 and 5 besides Sh. Shiv Prasad, father of the petitioner and respondents 3, 4 and 5. It seems that Sh. Shiv Prasad had died during the pendency of the proceedings before the competent authority. According to the averments made in this petition Sh. Shiv Prasad died on 6th November, 1971.

(2.) In the impugned order, on consideration of evidence which was filed in the form of affidavits, the learned competent authority has come to the conclusion that the petitioner Jagan Nath had deserted the disputed premises and was not living therein. It would be useful to notice that admittedly, respondents 3, 4 and 5 who are brothers of the peiitioner were not living in the premises in dispute since long before the filling of the application seeking permission to institute eviction proceedings against them. The rent note dated 1st February, 1960 being one of the admitted documents also shows that the said three respondents were not living in the disputed premises. Clause 3 of the said rent note, inter alia, states that previously all the tenants, namely, petitioner and respondents 3 to 5 and Sh. Shiv Prasad were residing but at the time when the rent note was executed only petitioner Jagan Nath and Shiv Prasad was residing in the premises. The petitioner had filed before the competent authority an affidavit dt. 25th August, 1969 whereby he denied the assertion of the respondents 1 and 2 that the suit premises were lying vacunt and closed for 2-3 pears and further stated that he was living in the premises continuously since 1941. It appears from the impugned order that the petitinoer was asked to furnish his ration card in order to establish his contention that be was actually residing in the disputed premises as specific allegation bad been made by respondents 1 and 2 that petitioner was not residing in the disputed premises. At this stage, the petitioner filed his own affidavit as also the affidavit of one Radhey Lal both dated 30th November, 1970 giving particulars about the issue of duplicate ration card No. 595493. This ration card was prepared, as per the affidavit of Sh. Radhey Lal on 17th March 1969. The application seeking permission to institute the eviction proceedings was filed in April. 1968. The affidavits also gave the number of the original ration card which was alleged to have been lost. In none of these affidavits the details about the loss of the original ration card have been given. It has not been stated either by the petitioner or Radhey Lal as to when the original ration card was lost, when loss was reported and when application was made for issue of the duplicate ration card. The petitioner has also not placed on record before the competent authority any other material to show that although his other three brothers bad shifted from the premises in dispute he had not he continued to reside in the premises in question. Learned Counsel for the petitioner contends that as the number of the old ration card had also been given in the affidavits afore- said, it was open to respondents 1 and 2 to seek permission of the competent authority to cross-examine the deponents which was not sought for and as such the rejection of the said affidavits by the competent authority is not liable to be sustained in law as also the finding that the petitioner had deserted the premises in question. I am afraid, it is not possible to accept this contention. On appreciation of the material on record the 646 learned competent authority came to the conclusion about the petitioner having deserted the premises. It is not possible to accept the submission that there was no material to arrive at the said finding or that any extraneous matter was taken into consideration. The other contention of the learned Counsel for the petitioner that as 2 landlord himself had given the address of the petitioner as that of the disputed premises it should be presumed that the petitioner was residing in the disputed premises is also without merit. The landlord had in fact given the same address of the petitioner and respondents 3,4 and 5 and Shiv Prasad though admittedly respondents, 3, 4 and 5 were not living in the premises. The question is not what address was given by the landlord but is as considered by the competent authority, whether the petitioner was living in the premises or not. If the petitioner was not living in the premises as found by the competent authority, there would be no question of his creating slum if evicted. The petition involves pure questions of facts.

(3.) For reasons stated above the petition is dismissed leaving the parties to bear their own costs. Petition dismissed. DELHI HIGH COURT Present : Mr. D.P. Wadhwa and Mr. D.K. Jain. J J. R.K. PARIYAR & ANR.-Petitioners Versus INTERNATIONAL AIRPORT AUTHORITY OF INDIA & ORS.-Respondents C.W.P. No. 1197 of 1989 and C.W.P.S. Nos. 1198, 1199 of 1989 and 1181 of 1990-Decided on 19-11-1991 Customs Act, 1962-Section 2(3)-Baggage-Goods detained under- Constitution of India--Art. 226 -Writ petition against charges-Claimed for keeping goods in warehouse-Petitioner applied for waiver of godown charges because goods came in Delhi from Singapore for transhipment to Kathmandu-Whether I.A.AI. is bound to waive the demurrage charges 7 (Yes) [Passengers baggage (Levy of Fees) Regulations, 1966-Regulation 3-Non leiry of charges]. II eld that Airport Authority, i.e., respondent No. I, was not entitled to charge demurrage on unaccompanied baggage in terms of the Regulations issued by it. Held further that we are, therefore, of the opinion that the first respon- dent is not entitled to charge any demurrage in all these cases and the petitioners are entitled to have their goods transhipped to Nepal without payment of any ground rent/demurrage charges. Cases referred 1. 1991 Rajdhani Law Reporter 213. 2. 1991 Rajdhani Law Reporter 243. 3. 1990 (47) E.L.T. 218. 4. AIR 1975 Supreme Court 1935. 5. AIR 1977 Supreme Court 1622. 6. 1990 (49) E.L.T. 501. 7. 1988 (34) E.L.T. 550 (Delhi). 647 Mr. R.K Saini and Mr. T. Ganesan with Ms. Urmil Narang, Advocates for the Petitioners. Mr. Aruneshwar Gupta, Mr. Madan Lokur and Mr. H.L. Tiku with Mr. B.L. Walt, Advocates fur the Respondent. Important Point "Baggage" defined under Section 2(3) of Customs Act, 1962 includes unaccompanied baggage on which according to Regulation 3 no demurrage. JUDGMENT D.P.Wadhwa. J,-It is a batch of four writ petitions. The petitioners have prayed that the International Airport Authority of India, the first respondent, be directed to hand over their respective goods covered under their Airway Bills to the K.L.M. Royal Dutch Airlines, the third respondent, for transhipment to Nepal without charging any godown rent/demurrage charges. The second respondent is the Collector of Customs, New Delhi. 2. The petitioners who are residents of Nepal sent their goods from Singapore to Kathmandu (Nepal) which arrived at Indira Gandhi International Airport, New Delhi, by K.L.M. Royal Dutch Airlines for transhipment to Kathmandu. In the case of some other persons similarly placed as petitioners, the consignments arrived at Indira Gandhi International Airport by Air India flight from Singapore for onward transhipment to Kathmandu. in fact, there were In all ten consignments-five coming by K.L.M Royal Dutch Airlines and the five by Air India. 3. To understand the issues involved in the present writ petitions it will be appropriate to refer to facts only in one of the petitions (C.W.1197/89). The petitioner here booked 26 packages direct from Singapore to Kathmandu. There were no direct flight from Singapore to Kathmandu and the goods had to first land at Delhi from Singapore and then transhipped to Kathmandu. Petitioner has said that these packages contained his personal effects as unaccompanied baggage. This consignment arrived at New Delhi by K.L.M. Royal Dutch Airlines flight on 11 July, 1987. The customs authorities acting under the provisions of the Customs Act, 1962, effected seizure of the consignment on 14 July 1987 and prepared a panchnama on a belief that importation was improper and goods liable to confiscation under Section 117 of the Act. The goods were warehoused with the first respondent whose warehouse had been declared as customs warehouse. Adjudication proceedings then were Initiated under the Customs Act. A show cause notice was issued on 7 December, 1987 alleging violation of the provisions of the Act. The petitioner took the defence that his case was not covered under that Act and that the same was covered by the Treaty of Transit 1978 entered into by His Majesty's Government of Nepal and the Government of India. He said the goods being his baggage were in transit and were never imported into India for the Customs Act to be applicable, and, therefore, there could not be any breach of the provisions of that Act. By order dated 23 September, 1988 the Deputy Collector of Customs (Adjudication) dropped the proceedings and permitted transhipment of all the seized goods under proper customs escort. He observed as under:- "I have gone through the material on record and the broad issues raised in the show-cause notices discussed above. The contention of the Department that the goods in transit were commercial cargo and 648 not personal effects is not tenable on the grounds that firstly the goods are consolidated and belonged to more than one person in every consignment. Secondly, the goods are committed to be imported into Nepal and permissible by the Nepalese Baggage Rules wherein the import is governed by a value limit and not by the nature of the import. The rate at which the goods were transported from Singapore is not material so as to render the goods liable for confiscation under the Customs Act in India."