020-SLLR-SLLR-2005-V-3-JAYARATNE-vs.-DIRECTOR-GENERAL-CUSTOM-DEPARTMENT-AND-OTHERS.pdf
102
Sri Lanka Law Reports
(2005) 3 Sri L R.
JAYARATNEvs
DIRECTOR GENERAL, CUSTOMS DEPARTMENT AND OTHERSCOURT OF APPEAL.
SRIPAVAN, J. ANDDE ABREW, J.
C. A. 2238/2004.
MARCH 2, APRIL 1, AND MAY 12,2005.
Writ of certiorari/mandamus – Customs Ordinance, sections 50(d) and 135 -Seizure – Validity? – Import and Export Control Act, No. 19 of 1969 – Importeracting in breach of conditions in lease – Authority given to customs to forfeitgoods.
The petitioner- alleging that he is the registered owner of the motor vehicle,bought in good faith and for valuable consideration sought a writ of certiorari, toquash the seizure notice issued under section 135 of the Customs Ordinance.
HELD:
(1) The previous owner of the vehicle in question was one W. One of theconditions subject to which the licences was issued to W was that thevehicle should not be sold, transferred or otherwise disposed of for aperiod of five years from the date of registration in Sri Lanka.
•(2) The vehicle has been transferred contrary to the conditions subject to
which the import licence was issued.
The 1st respondent has the authority to forfeit such goods where theconditions are not complied with-section 50(a) Customs Ordinance.
The seizure notice is not a final determination affecting the rights ofparties. The issuance of the seizure notice is not an illegal act or an actwhich is beyond the authority of the 2nd respondent.
APPLICATION for writ in the nature of certiorari/mandamus.
CA
Jayaratne vs Director General, Customs Departmentand Others (Sripavan, J.)
103
Case referred to:Dias vs. Director General of Customs (2001) 3 Sri LR. 281.K. Deekiriwewa for petitioner,
Farzana Jameel, Senior State Counsel for respondents.
Cur. adv. vult.
September 09, 2005SRIPAVAN, J.
The petitioner alleges that he bought a registered Diesel MitsubishiPajero Jeep bearing chassis No. V 46-4044523 in good faith on or about25.06.2003 for a valuable consideration of Rs. 3.6 Million.
The said jeep was registered in the name of the petitioner as evidencedby the Vehicle Registration Book marked X2. The Learned counsel for thepetitioner submitted that the petitioner was served with a seizure noticedated 09.11.2004 issued by the 2nd respondent in terms of section 135 ofthe Customs Ordinance. It is this notice the petitioner is seeking to quashin these proceedings on the basis that he was a bona fide purchaser ofthe said jeep and even if an offence has been committed, there is noprovision under the Customs Ordinance or the Exchange Control Act todeal with such type of situation ; hence any action by the respondentsincluding the seizure was ultra vires.
It is manifestly clear from the petitioner’s document marked X2 that theprevious owner of the vehicle in question was G. N. Wasanthi of No. 18,Mahawewa, Thoduwawa. It is also apparent from the document marked2R1 that import license was given to the said G. N. Wasanthi by the 3rdrespondent to import the said vehicle. The date of issue of the said importlicense is 03.01.2003, One of the conditions subject to which the licensewas issued to G. N. Wasanthi was that the vehicle should not be sold,transferred or otherwise disposed of for a period of 05 years from the dateof registration in Sri Lanka.
It would appear from the document X2 that the vehicle has beentransferred contrary to the conditions subject to which the import licensewas issued to G. N. Wasanthi.
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Sri Lanka Law Reports
(2005) 3 Sri L R.
In terms of section 50(A) of the Customs Ordinance when goods areimported into Sri Lanka under any other law subject to any conditions tobe fulfilled after the importation, the 1st respondent has the authority toforfeit such goods where the conditions are not complied with.
Accordingly, the Court is of the view that the 1st respondent has theauthority to investigate the manner in which the vehicle in question hasbeen transferred to the petitioner contrary to the conditions laid down inthe import license, prior to taking any steps to forfeit the vehicle.
The affidavit filed by the 2nd respondent shows that he had reliableinformation warranting further probing. As held in Dias vs. the DirectorGeneral of Customs' the scheme of the Customs Ordinance recognizesand gives an opportunity to the petitioner from whom the vehicle in questionwas seized to vindicate himself at a subsequent inquiry.
The Learned Senior State Counsel appearing for the respondentssubmitted that after importation of the said vehicle the importer acted inbreach of the condition of the license based on which the importation waspermitted. Further, the Learned Senior State Counsel argued that the detailsof the vehicle given in column 31 of the Custom’s declaration marked 2R5defer from the exchange copy marked 2R6 submitted to the Registrar ofMotor A/ehicles.
■ Accordingly, the Court is satisfied that the 1st respondent is inpossession of reliable information warranting further investigation into thematter. The seizure notice issued by the 2nd Respondent is not a finaldetemination affecting the rights of the petitioner. The Court is also satisfiedthat the issuance of the said seizure notice is not an illegal act or an actwhich is beyond the authority of the 2nd respondent. Thus the Court is notinclined to;quash the said seizure notice marked X3.
The petitioner also seeks a writ of mandamus to compel the 3rdrespondent to validly exercise the powers conferred on him in terms of theimport and Export Control Act, No. 01 of 1969. The discretionary remedyof mandamus lies only in case of a breach of any statutory duty by anypublic authority. The Petition does not disclose a failure of any statutoryduties on the part of the 3rd respondent. Thus a writ of Mandamus wouldnot lie against the 3rd respondent.
CA
Rushantha Perera i/s Wijesekera (Sripavan, J.) '(P/CA))
105
The petitioner also seeks a writ of prohibition restraining the 1 st and2nd respondents from issuing a fresh seizure notice. A Writ of Prohibitionwould lie against the said respondents only if there is a total lack ofjurisdiction. As observed earlier the 1 st and 2nd respondents have actedfairly and reasonably in issuing the impugned seizure notice.
For the aforesiad reasons, the Court does not see any merit in thepetitioner’s application. The petitioner’s application is accordinglydismissed with costs fixed at Rs. 15,000 payable by the petitioner to therespondents in equal shares.
DE ABREW, J. -1 agree.
Application dismissed.