Judgment:
ORDER
1. This matter is at the show cause stage but with the consent of learned counsel for the parties, since we have heard it at great length, the petition is being Admitted D.B. and is being disposed of.
2. This writ petition is directed against an order dated 1st August, 1986 passed by the respondents whereby the application of the petitioner. Mrs. Zaibunissa Begum Ali has been dismissed.
3. The case of the petitioner inter alias is that the petitioner's husband was an officer in the Customs Department. The petitioner is an orthodox muslim lady and widow of late Mr. S.A. Ali, Retired Superintendent of Customs. In 1974 after the death of her husband she went to London where her daughter and son-in-law, Dr. M.A. Hassan are settled. Throughout her stay from 1974 till September, 1985 she was living with her daughter and son-in-law and did not have to incur and expenditure for rent, food or other expenses. During most of the time when she resided with her son-in-law, she was employed by a local manufacturer M/s. Pretty Polly Limited as a Box Operator. She was also entitled to social security benefit and received payments on that account. Being an orthodox muslim, although she had her own Bank account she did not keep her weekly earnings and social security benefit in the Bank. She used to withdraw the amounts from the bank and give it to her son-in-law and daughter to keep it on her behalf.
4. It is further case of the petitioner that since she intended to return to India permanently, she booked a car to bring it for her use in India. The car was Mercedes Benz 200 and was booked with M/s. Mercedes Benz United Kingdom Limited, Diplomatic and Tourists Sales, 7B, Piccadaly Road, London land taken delivery of the vehicle on 27th April, 1984 for DM 24,950. According to the terms, the vehicle had to be exported from U.K. on or before 26th October, 1984.
5. It is further stated that for the purpose of making payment the petitioner requested her son-in-law for the refund of her savings and accordingly her son-in-law, Dr. M.A. Hassan, transferred from his Bank Account with Lloyds Bank a sum of Pounds 8893.85 to the account of the petitioner. Upon the amount being transferred to the petitioner's Account, the petitioner made payment by cheque to the supplier of the vehicle. The petitioner used the car during her stay in London after it was delivered to her.
6. It is further case of the petitioner that the petitioner on 11th July, 1984 applied to the Chief Controller of Imports and Exports for the grant of permission to import the vehicle for her own use in India. By letter dated 24th August, 1984 petitioner was asked to produce another employer's certificate showing the period of employment and salary abroad and bank statement of account showing debit and credit for the last two years. She produced all the documents Along with the affidavit of her son-in-law. The application was, however dismissed by an order dated 27th December, 1984.
7. Petitioner kept on repeating her request but the same was not acceded to. The representations were made inter alias on 1st February, 1985; 6th April, 1985; 6th December, 1985, and 9th January, 1986 but all were rejected. The petitioner returned to India in September, 1985. Before her return, the petitioner was informed by the British Customs Department by a letter dated 25th April, 1985 that the vehicle should be exported out of England within the further extended period by 1st September, 1985 and not thereafter. thereforee, the petitioner got the vehicle shipped to India and the same arrived in India sometime in October, 1985, and has been in Bombay since then with the Customs authorities.
8. The orders throughout were non speaking orders for refusal of her application. Petitioner accordingly filed a writ petition in this Court being C.W.P. No. 482 of 1986. This writ petition also came up before this Court (Yogeshwar Dayal and Mahinder Narain, JJ.) and this Court observed that 'the petitioner's case was that she had been working in England for more than 9 years and had been earning throughout and the car was purchased from her own savings. It was further stated by her that the savings were kept by her with her son-in-law, a non-resident Indian who was practicing doctor in England and the amount from which the car in dispute was purchased was really from her own earnings. However, if that is the position of the case of the petitioner, she is entitled to the import license'. This Court had issued directions to respondent No. 1 to fix a date of hearing and pass speaking order after hearing the petitioner. Thereafter the impugned order was passed.
9. In the impugned order the reasons given for the refusal are as Under :-
(1) The vehicle to be imported should have been used abroad for atleast three months but in the case of the petitioner the vehicle was not in her possession for a period of three months as contemplated under the Import policy.
(2) That the earning of the petitioner during the period 1979-80 to 1984-85 has been Pounds 10,440 which is hardly enough to purchase Mercedes Benz car 200 and, thereforee, the car has not been purchased from the earning of the petitioner.
(3) That the income of the petitioner abroad was not sufficient to finance the purchase of the costly car.
(4) That the contention of the petitioner that during her stay abroad from 1974 onwards the expenses were met by her son-in-law is not convincing; and
(5) That in the Bank statement there are two entries of payment and receipt of the same amount of Pounds 8,893.85 made on the same day i.e. 26th April, 1984 and in the statement of Account of Mr. Hassan a sum of Pounds 8893.85 has been shown as transferred on the same day. Apparently this amount has been taken from his account to make the payment for the car on 26th April, 1984, which is also the date of the registration of the car.'
10. It will be noticed that there is no material whatsoever with the respondents apart from the material furnished by the petitioner. The case of the petitioner that during her entire stay in England she has been staying with her daughter and son-in-law is not disputed. It is also admitted the her earning during her stay abroad was Pounds 10,440 atleast. The price of the car was only Pounds 8,893 out of which Pounds 2,800 was refundable as value added tax, thereforee, the total amount was roughly about Pounds 6,000. No material was collected by the respondents to dispute the fact that the entire expenses of the petitioner was borne by her daughter and son-in-law, and the only finding is that the expenses were met by her son-in-law is not convincing. One fails to understand the expression convincing'. It is totally mala fide observation to say the least in the absence of material to the contrary. We could understand if the Customs authorities had made some enquiry to rebut it. In the absence of any such enquiry or material the finding itself, as stated above, is mala fide and perverse.
11. The finding that the vehicle was not used abroad for three months is contrary to record. As per the dates given above, the car was there for more than a year while the petitioner was corresponding with the Customs authorities in India.
12. The third reason given was that it was financed by her son-in-law. This reasoning is connected with the other reasonings, because it was throughout the case of the petitioner that she had been keeping her savings with her son-in-law and when she wanted, her son-in-law gave her the cheque which was deposited in her saving account. The Account also had a credit entry of Pounds 3,062.50 which was received by the petitioner as social security benefit. The case of the respondents is that this amount of Pounds 3,062.50 which was received by her as social security benefit cannot be called as earning within the meaning of the policy. Surely it was not an illegal gain which the petitioner obtained. She got the money in accordance with law to her credit. The moment she received the amount in her credit, it is a part of her earning or saving. It is not because on somebody else labour that the petitioner got the amount of social security benefit. It cannot be called anything but the earning of the petitioner. In any case there was sufficient income apart from social security benefit which enables the petitioner to buy the car.
13. Normally it appears to us to be pure question of fact as to whether the car was purchased from the earning of the petitioner and findings in such matters are pure findings of fact and not liable to be interfered with while exercising jurisdiction under Article 226 of the Constitution of India. But every finding of fact has to be based on some evidence and supposed to be on some material. Apart from finding the holes in the material furnished by the petitioner, respondents made no effort whatsoever to rebut the case of the petitioner.
14. For all these reasons we are constrained to quash the impugned order which is hereby quashed and the respondents are directed to permit the petitioner to import the disputed car on payment of duty in accordance with law. The car on import will be subject to restrictions of clearance on a person residing abroad and returning back to India on transfer. Respondent No. 2 is further directed to issue the necessary detention certificate to enable the petitioner to clear the car without paying demurrage to the Port Trust Authority.
15. Parties are, however, left to bear their own costs of the present proceedings.