Const. Petition No.D-1612 of 2010
Present
Mr. Justice Aqeel Ahmed Abbasi.
Mr. Justice Farooq Ali Channa.
Malik Mukhtar Khan ……………………………………………………...Petitioner
Versus
Federation of Pakistan and others……………………………….. …….Respondents
Date of hearing 22.08.2013
Date of order 22.08.2013
Mr. Malik Khushal Khan, Advocate for the petitioner
Mr. Ghulam Hyder Shaikh, Advocate for respondent
Mr. S. Mohsin Imam, DAG.
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O R D E R
Aqeel Ahmed Abbasi,J:- Through instant petition, the petitioner has impugned the detention of vehicle i.e. Toyota Hilux Surf Wagon bearing Registration No. WAA-361, Model 1996, 2693CC, Engine No.1165141, Chassis No.RZN185-0018094 by the respondent on the ground that the entire proceedings against the petitioner in respect of subject vehicle and its detention without jurisdiction as the vehicle has been detained within the local limits of city.
2. Notices were issued to the respondents, pursuant to which comments were filed wherein it has been stated that the detention proceedings were initiated strictly in accordance with law by adopting legal procedure, whereafter, the matter was duly adjudicated and the order-in-original dated 24.6.2010 was passed, hence petition is devoid of any merits which may be dismissed. Petitioner’s claim is that he was never served with the certified copy of said order, whereas, according to learned counsel for petitioner, copy of such order was supplied by the respondent to the counsel for the petitioner on 29.6.2010, whereafter, petitioner preferred an appeal before the learned Collector (Appeals) on 27.11.2010, which is pending disposal. It has been further contended by the learned counsel for the petitioner that during pendency of the appeal and instant petition the respondents have auctioned the vehicle without following the legal procedure or issuing any notice to the petitioner. It has been prayed by the learned counsel that entire proceedings may be declared as illegal and the respondents may be directed to compensate the petitioner in accordance with law.
3. Respondents were directed to place on record the entire proceedings of auction, pursuant to which respondent No.4, through statement dated 04.06.2010, filed the reply and the relevant documents as well as report dated 9.9.2011 to show that the subject vehicle was auctioned in accordance with law alongwith other seized vehicles, whereas notice was also issued to the petitioner. Learned counsel for the respondent has submitted that pursuant to detention of the vehicle which was smuggled as duty and taxes not paid, adjudication proceedings have been finalized, whereafter the petitioner filed an appeal, therefore, instant petition is liable to be dismissed. Learned counsel for the petitioner, on the other hand, submits that neither the petitioner was served with any notice before auction nor the said auction was properly advertised in the newspaper. On a query of this Court, as to whether any restraining order was operating in the instant petition or the appellant obtained any injunctive order from the Collector (Appeals), where the appeal of the petitioner is pending, the learned counsel for the petitioner has candidly submitted that though neither any restraining order was operating in the instant petition nor such interim relief has been sought from the Collector (Appeals), however, according to learned counsel, the respondents Department, in order to frustrate the claim of the petitioner, have hurriedly auctioned the subject vehicle on throwaway price without following the legal procedure, therefore, they may be directed to deposit the amount of auction before the Nazir of this Court, which may not be released to either party at least till decision of the appeal by the Collector (Appeals) in the instant case.
4. We have heard the learned counsel for the parties and perused the record. It appears that during pendency of the instant petition, the order of adjudication has been passed by the competent authority which has been assailed by the petitioner by way of filing appeal before the Collector (Appeals), which according to petitioner is pending disposal since 2010. We have further noted that no restraining orders were operating in the instant petition requiring the respondents not to proceed further in the instant matter, nor the petitioner was vigilant to obtain any interim relief from the Collector (Appeals). In the absence of any restraining orders by competent authority or forum, prima-facie it appears that the respondents department was authorized to dispose of the confiscated vehicle through public auction within 30 days from the order of adjudication in terms of Section 169 of the Customs Act, 1969. Since the petitioner has impugned the detention proceedings in respect of the subject vehicle before this Court, which proceedings have been culminated into passing of an order of adjudication by the competent authority, whereas, remedy against such order has already been sought by the petitioner by filing an appeal before the forum provided by Statute, therefore, we are not inclined to exercise our discretion under constitutional jurisdiction as the matter involves determination of disputed facts. Moreover, any interference by this Court at this stage, would frustrate the fate of appellate proceedings pending before the Collector (Appeals) involving the same subject controversy. A party cannot be allowed to abandon or bypass the remedy as provided under statute by invoking extra ordinary Constitutional jurisdiction of this Court under Article 199 of the Constitution of Pakistan 1973. Accordingly, instant petition is dismissed along with listed application, however, petitioner may continue to seek remedy before the forum provided under the law and would be at liberty to raise all such objections as permissible under the law.
Instant petition stands disposed of alongwith listed application in the aforesaid terms.
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