IN THE HIGH COURT OF SINDH, KARACHI

 
Constitutional Petition No.D-4357 of 2014

                                                                       

            Present

                                                   

                                                Mr. Justice Aqeel Ahmed Abbasi

                                                Mr. Justice Muhammad Junaid Ghaffar

 

                                                                                                                  

Syed Abdul Khalique             ………………………………………..…Petitioners

 

Versus

 

Model Customs Collectorate, Hyderabad…………..…………………Respondents

 

Date of hearing                       :                30.10.2014

Date of judgment                    :                30.10.2014

 

M/s. Qazi Ghulam Dastagir & Dilkhurram Shaheen,

advocates for the petitioner

Mr. S. Mohsin Imam, advocate for the respondent.

Mr. Ainuddin Khan, DAG.

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O R D E R

 

Aqeel Ahmed Abbasi, J:         Through instant petition, the petitioner, who participated in the auction proceedings in respect of vehicle detained by the Customs Department, has prayed that respondent Customs Department may be directed to return the amount (25% earnest money) Rs.23 million to the petitioner as the said auction proceedings were brought under dispute/litigation by the importer and stay was granted in respect of said auction by the Hon’ble Islamabad High Court.

 

2.         Notices were issued to the respondents as well as DAG, pursuant to which M. Saleem Memon, Additional Collector Customs, Hyderabad, has shown appearance and while confronted with the contention of the learned counsel for petitioner for the refund of the earnest money, which was deposited with the concerned Collectorate at the time of auction of the vehicles, Additional Collector Customs, submits that subsequent to interim order passed by the Islamabad High Court in Intra Court Appeal No.193/2014 in respect of the vehicles, whereby the auction was stayed, final order was passed, wherein, the import of the vehicles on the basis of L.C. was declared without lawful authority. Officer present in Court further submits that the said order was assailed by the importer before the Hon’ble Supreme Court and the leave has been refused and thereafter review filed by the importer is pending before the Hon’ble Supreme Court. It is further contended that the order passed by the Collector (Appeals) in respect of vehicles in favour of the importer has also been suspended by the Appellate Tribunal and the matter is still pending.

 

3.         Learned counsel for the petitioner submits that since the petitioner is not a party to the proceedings, which have been referred to hereinabove, nor he has a privity to such proceeding, whereas, admittedly, the petitioner has not committed any default in respect of auction proceedings, which could not be concluded pursuant to the stay order granted by the Hon’ble Islamabad High Court, therefore, the petitioner may not be dragged in these proceedings, which are pending between the importer and respondent department, and the amount deposited by the petitioner as earnest money may be directed to be returned to the petitioner.

 

4.         We have heard learned counsel for the parties as well as Additional Collector Customs, Hyderabad, and examined the record. It appears that presently the ONO passed in respect of subject vehicles in the instant case, pursuant to which the auction proceedings were undertaken by the respondent department, is no more in the field as it was set-aisde by the orders of the Collector (Appeals), which is now subject matter of appeal before the Customs Appellate Tribunal.

 

5.         It is further observed that after setting aside of the ONO by the Collector (Appeals) the vehicles in question are no more a “confiscated property” and auction of such vehicles may entail further litigation, whereas, the Auction Purchaser cannot be burdened and dragged in such dispute which is a matter between the importer and the respondent department.

 

6.         The importer and the respondent department are agitating their disputed claims with regard to entitlement of the subject vehicles and the matter is still subjudiced before the Customs Appellate Tribunal. Apparently, the petitioner who participated in the auction proceedings has not committed any default in deposit of earnest money or in payment of balance of bid amount, as the auction was stayed pursuant to orders of the Islamabad High Court in respect of subject vehicles and thereafter, the importer has come forward as a claimant and the matter is still subjudice before the forum provided under the law, therefore, we are of the opinion that the amount deposited by the petitioner as earnest money in respect of such auction proceeding, which is no more alive, is required to be returned to the petitioner.

 

7.         Accordingly, we would dispose of the instant petition with the direction to the respondents No.1 & 2 to immediately refund the amount of earnest money deposited by the petitioner pursuant to aforesaid auction proceedings within seven days from the order of this Court in the instant petition.

 

            Petition stands disposed of in the above terms.

            

     J U D G E           

 

                                                         J U D G E