025-SLLR-SLLR-2004-V-2-AMARASINGHE-v.-JAYATHILAKE-DIRECTOR-GENERAL-OF-CUSTOMS-AND-OTHERS.pdf
CA
Amarasinghe v Jayathilake, Director-General of Customs
and others (Sripavan. J.)
169
AMARASINGHEv
JAYATHILAKE,DIRECTOR-GENERAL OF CUSTOMS AND OTHERSCOURT OF APPEALSALEEM MARSOOF, (P/CA) ANDSRIPAVAN, J.
C.A 482/03JULY 23, ANDAUGUST 17, 2004
Writ of mandamus – Customs Ordinance, Sections 12, 43, 125, 164, and 165,Vehicle declared forfeit – Can the Minister refuse any application made interms of Section 164 and 165 – Export Control Act, No. 1 of 1969 – Conditionprecedent for issue of mandamus?
The petitioner imported a car which he had been using from 26.02.2000 in theUnited Kingdom. On arrival of the vehicle, it was detected by Customs and
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after a formal inquiry the vehicle was declared forfeit. The petitioner requestedthe 4th respondent Minister to release the vehicle to him under sections 164and 165 and request was rejected. The Petitioner sought a writ of mandamuscompelling the 1st respondent to release the said vehicle after charging cus-tom duties.
Held:
i) A condition precedent for the issue of mandamus is the presence of astatutory right. The discretion vested upon the Minister cannot beclaimed by the petitioner as of right. No person shall be compelled bymadamus to exercise his discretion one way or other if he has honestlyand reasonably exercised his discretion.
(ii) The use of the words “it shall be lawful for the Minister to order, the sameto be restored” in section 164 and “Miniser may by any order “in section165, does not mean that the Minister has to necessarily release the vehi-cle when it is seized as forfeit.
APPLICATION for a Writ of MandamusCase referred to:
1 .Bangamuwa vs SMJ Senaratne, Director-General of Customs andanother – (2000) 1 Sri LR 106
Asoka Fernando for Petitioner
L.M.K. Arulananthan, Deputy Solicitor- General for respondents
Cur.adv.vult
September 09, 2004SRIPAVAN, J.
The petitioner is a person born in Sri Lanka on 20/03/1953 andwas employed in the United Kingdom for 22 years. He obtained hisBritish citizenship in the year 1999. The petitioner alleges that untilMarch 1999 he was a citizen in Sri Lanka. The petitioner importeda Ford Escort car which he had been using from 26.02.2000 in theUnited Kingdom. On arrival of the said vehicle to Sri Lanka on22.03.2002, it was detained by the Sri Lanka Customs, on a suspi-cion of illegal importation. A formal inquiry into the alleged importa-tion was held on 06.08.2002 and the said vehicle was declared for-feit in terms of sections 12, 43 and 125 of the Customs Ordinanceread with the Import and Export Control Act No. 1 of 1969 as evi-denced by the document marked P5.
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Amarasinghe v Jayathilake, Director-General of Customs
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The petitioner sought the assistance of the political authorities tohave the said vehicle released. Accordingly, the Secretary to thePrime Minister by letter dated 13.12.2002 marked P6 (c) informedthe Secretary to the Ministry of Finance that the petitioner was will-ing to purchase the aforesaid vehicle at a reasonable price at anauction sale arranged by the Sri Lanka Customs. However, thepetitioner was unable to purchase the said vehicle at the auctionsale as his offer had been rejected.20
On 13.12.2002 the petitioner addressed a letter marked P9 tothe 4th respondent requesting that his forfeited vehicle by theCustoms be released to him. It is on this basis the petitioner seeksa writ of mandamus compelling the 1st respondent to release thesaid vehicle to the petitioner after charging custom duties.
When this application was supported on 31.03.2003, counsel forthe petitioner submitted that in terms of an appeal made to the 4threspondent, the petitioner has received a letter dated 24.02.2003marked P10 informing that the 4th respondent has made orderunder sections 164 and 165 of the Customs Ordinance and the 30same has been conveyed to the Director-General of Customs.Counsel further submitted that since he was seeking a writ of man-damus in terms of paragraph ‘f’ of the prayer to the petition he wasnot seeking any relief in terms of paragraphs ‘c’ and ‘d’ of the prayerto the petition.
On 05.07. 2004 the counsel for the petitioner and the learnedDeputy Solicitor General for the respondents agreed that the onlyissue to be considered was whether the petitioner is entitled to awrit of mandamus as prayed for in paragraphs ‘e’ and ‘f’ of theprayer to the petition. Paragraphs ‘e‘ and T of the prayer to the peti- 40tion read as follows:-
. Grant and issue a mandate in the nature of writ of man-damus compelling the 2nd respondent to issue an import licence(after charging a reasonable amount of penalty if necessary).
Grant and issue a mandate in the nature of writ of mandamuscompelling the 1st respondent to release the vehicle to the peti-tioner, charging custom duties (and if necessary charging a rea-sonable penalty).
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Further, both counsel agreed that this application should be dis-posed of on written submissions only.
It was not in dispute that the motor car imported by the peti-tioner was more than three years old from the date of first registra-tion. The approved scheme issued by the 2nd respondent withregard to the importation of motor vehicles indicates that the impor-tation of a motor vehicle which is older than three years must beauthorized by a license issued by the Controller of Imports andExports. In the absence of any such license at the time of importa-tion the petitioner is not legally entitled to have the vehicle releasedto him. In any event, once the vehicle is seized as forfeit it becomesthe property of the State and the power of restoration of seizedgoods is given to the 4th respondent under the Customs Ordinancein terms of sections 164 and 165. Bangamuwa v. S.M.J. Senaratne,Director-General of Customs & another (1).
Section 164 of the Customs Ordinance reads thus:-
“In case any goods, ships, or boats shall be seized as forfeited,or detained as undervalued, by virture of this Ordinance, it shall belawful for the Minister to order the same to be restored in such man-ner and on such terms and conditions as he shall think fit to direct;and if the proprietor of the same shall accept the terms and condi-tions presecribed by the Minister, he shall not have or maintain anyaction for recompense or damage on account of such seizure ordetention and the person making such seizure shall not proceed inany manner for the purpose of obtaining the condemnationthereof.”
Section 165 of the Customs Ordinance reads thus:-
“The Minister may, by any order made for that purpose, directany ship, boat, goods, or other commodities whatever, seizedunder this Ordinance, to be delivered to the proprietor thereof,whether condemnation shall have taken place or not, and may alsomitigate or remit any penalty or fine or any part of any penalty orfine incurred under this Ordinance, or may release from confine-ment, any person committed under this Ordinance on such termsand conditions as to him shall appear to be proper.”
There is significance in the use of the words “it shall be lawfulfor the Minister to order the same to be restored” and “Minister
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may by any order” in sections 164 and 165 respectively. In myview.the aforesaid sections give the 4th respondent the discretionto release seized goods subject to such terms and conditions as hemay think fit. I am unable to agree with the submission of the coun-sel for the petitioner that in terms of section 164, the Minister has 90to necessarily release the vehicle when it is seized as forfeit. If thatargument is accepted, it would mean that the Minister cannotrefuse any application made in terms of sections 164 and 165 ofthe Customs Ordinance.
Condition precedent for the issue of mandamus is the presenceof a statutory right. The discretion vested upon the 4th respondentcannot be claimed by the petitioner as of right. No person shall becompelled by mandamus to exercise his discretion one way orother if he has honestly and reasonably exercised his discretion.
The letter dated 24.02.2003 sent by the Director-General, 100Department of Fiscal Policy & Economic Affairs to the 1st respon-dent marked 1R6 shows that the 4th respondent has informed the1st respondent that the petitioner’s appeal for the release of thevehicle has been disallowed. In the circumstances, I do not seeany legal basis to issue a writ of mandamus as prayed for.Accordingly, the petitioner’s application is dismissed in all the cir-cumstances without costs.
MARSOOF, J. (P/CA). I agree.
Application dismissed