Abhinav Kumar vs Ministry Of Finance & Anr.
2014 Latest Caselaw 7031 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Date of decision: 22nd December, 2014

+                            WP(C) No.3634/2014

       ABHINAV KUMAR                                   ..... Appellant
                  Through:             Mr. Awanish Kumar, Adv.

                                    Versus

    MINISTRY OF FINANCE & ANR.                ..... Respondents

Through: Mr. Sanjay Jain, ASG with Ms. Sonia Sharma & Ms. Pallavi Shali, Advs.

for UOI.

CORAM:-

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. This petition under Article 226 of the Constitution of India, filed as a

Public Interest Litigation (PIL), flags the issue of non availability of an

"Appraisal Counter for issuance of Export Certificate" at the Indira Gandhi

International (IGI) Airport, New Delhi, forcing the passengers to travel to

the Custom House, Jhandewalan which is about 30 kms. away from the

airport and thereby causing undue hardship to the commuters. The petition

accordingly seeks a mandamus to the respondents Ministry of Finance,

Department of Revenue and the Central Board of Customs and Excise to

have such an Appraisal Counter for evaluation of declared items of the

passengers at the IGI Airport, New Delhi.

2. It is the case of the petitioner that:

(i) As per the Baggage Rules, 1998 framed in exercise of powers

under Section 79 of the Customs Act, 1962, Indian males and

females who have been residing abroad for over one year can

while returning carry duty free jewellery upto the value of

Rs.50,000/- and Rs.1,00,000/- respectively.

(ii) Indians travelling abroad also often carry expensive items

intended to be brought back - to facilitate return of such goods

without attracting any duty, concept of Export Certificate was

introduced as a facilitation measure by the Customs

Department.

(iii) The Government in exercise of powers under Section 25 of the

Customs Act has also notified the list of goods exempted from

duty, it also notified the rate of import duty of various items

including on gold; however such duty is not leviable if the said

item carried by the passenger while travelling from India and

accompanied with an Export Certificate (supra) or is within the

limit prescribed by the Baggage Rules.

(iv) However no Appraisal Counter which can give Export

Certificate is available at IGI Airport and for getting the

assessment; the passenger is directed to Customs House at

Jhandewalan, which is at 30 kms. distance - the same causes

inconvenience to the passengers.

(v) Other countries, viz. United States of America and United

Kingdom, have Evaluation / Appraiser‟s Kiosk at the airport

itself.

3. The petition was entertained and notice thereof issued. A counter

affidavit has been filed on behalf of Additional Commissioner of Customs,

IGI Airport, pleading that:-

(a) the process of issuing of Export Certificate for gold jewellery is

time consuming, wherein the metal is tested for its purity rank

and photographs are taken and the jewellery sealed;

(b) owing to the high number of passengers who may like to get an

Export Certificates and the time consumed in issuing such

certificate, it is highly improbable to issue such certificates on

the spot to ongoing passengers;

(c) such Export Certificate can be issued only in advance, requiring

the passenger to use such facility at least one working day in

advance;

(d) the facility has been made available in Jhandewalan complex

located in the center of the city;

(e) relocating such services to airport will require the passengers to

make two trips to airport, furthering the problems faced by

them - such trips with jewellery may also cause security

hazards for the passengers;

(f) IGI Airport Customs is short of desirable space and

infrastructure and trained jewellery appraisers to provide such

facilities at IGI airport;

(g) to the best of the knowledge of the deponent, no airport in the

country has such facility;

(h) issuance of the Export Certificate for jewellery can only be

done in advance since it requires time and involves jewellery

experts and such a facility is ideally located in the center of the

city.

4. The learned ASG appearing for the respondents in addition contended

that creation of an Appraisal Counter at the airport would also lead to

experts and staff required at the said counter being also permitted to enter

the airport premises and which is likely to cause a security hazard. He has

again contended that the process of appraisal takes time and it is not feasible

and convenient for the passengers also to have the appraisal, upon reaching

the airport for boarding their flight.

5. We are of the view that our judicial powers do not extend to giving a

direction as is sought, the same being largely an administrative / policy

decision but at the same time, we cannot help but observe that the

respondents do not appear to have approached the issue in the correct

perspective. The counter affidavit is full of legalese, rather than addressing

the important issue of public interest raised in the petition. The reason

given, of paucity of space and infrastructure at the airport also does not

inspire confidence. IGI Airport has recently undergone re-development by

acquisition of land, displacing a large number of villagers. To our

knowledge, large portions of such acquired lands have been used for

building hotels and which are often found to be serving the need, instead of

users of the airports / travelers, of the city residents. We wonder as to why

the respondents, at the time when the re-development of the airport was

being planned, if facing any paucity of space / infrastructure, could not have

demanded additional space.

6. Similarly, the argument given of having an Appraisal Counter at the

airport / close to the airport posing a security hazard to the airport, cannot be

accepted. Having used the said airport, it is to our knowledge that large

portions of the re-developed airport are outside the secured arena. It is thus

possible to have the said counter, in close vicinity of the airport and without

posing any security hazard.

7. As aforesaid, the hotels in the aerocity can be accessed by all and not

merely by only those using the airport. The Appraisal Counter could have

been similarly used within the said aerocity.

8. The respondents seem to have lost sight of the fact that IGI Airport is

used not only by residents of Delhi but also by the residents of / passengers

headed to, the surrounding cities of Uttar Pradesh, Punjab, Haryana and / or

portions thereof closer to Delhi which do not have international airport.

Passengers travelling to and fro such neighbouring states often depart from

their respective homes several hours in advance to reach the airport in time

for the flight. The reasons given by the respondents in their counter affidavit

would require the said persons to, besides for boarding their flight, also visit

Delhi on another day also in advance for obtaining the Export Certificate.

On the contrary, if the Appraisal Counters are at the airport or in the close

vicinity of the airport, such persons can advance their departure from their

homes by an hour or so, to in the same visit, obtain the Export Certificate as

well as board the flight.

9. Experience also shows that most of the international flights depart

from Delhi in the night hours. It has not come on record whether the

existing Appraisal Counter remains open 24x7 or not. In our opinion it

should again, so as not to compel the travelers to make a separate visit to

Delhi for availing the services thereof.

10. As far as the contention, of Appraisal Counter Jhandewalan being in

the center of the city, is concerned, the same also sounds doubtful. Though

Jhandewalan, New Delhi could earlier have qualified as city‟s center but

with the expansion of the city to the National Capital Region, it cannot today

be called so. Suffice it is to state that having the Appraisal Counter at the

airport / in the close vicinity of the airport in our opinion is not likely to

cause any inconvenience even to those who may be wanting to obtain the

Export Certificate a day or two in advance. Even otherwise, having two

Appraisal Counters, one at/near the airport and the other, in the city, can be

considered. We find that for facilitating diamond exports, the Government

had, in addition to the existing customs clearance facility at the airport, set

up another such facility near the diamond business centre in the city of

Bombay, so that the delay on account of congestion is avoided, as noted in

Director of Income Tax (Exemptions) Vs. Bharat Diamond Bourse

MANU/MH/0670/2000 (DB).

11. We are also unable to comprehend the reasoning given in the counter

affidavit of the appraisal requiring a long time. We can with reasonable

certainty be sure that such appraisal does not require any chemical test. The

same would at best require a physical examination with gadgets (and which

our research shows, is called the specific gravity test) and weighing the item.

The same cannot certainly require hours. It is unfortunate that the

governmental agencies having dealings with the public are not awakening to

the present day need, requirements and realities and seem to be satisfied in

following the systems and the procedures in vogue for decades.

12. Learned ASG has also argued that travel plans are known long in

advance and it is not as if the need for appraisal arises at the last minute.

The said argument also fails to take note of increase manifold in

international travel by Indians and more so for business / work purposes and

which travel plans generally are firmed up at the last minute. The reasoning

given by the respondents also loses sight of the situations most often faced

where a person used to wearing a jewellery item reaches the airport without

realizing the need for having it appraised in advance. Such persons are often

found to be left with no alternative but to travel without the jewellery item

which over the years may have become part of their personality.

13. Though no arguments have been addressed in this regard but it

appears that appraisal may also be required by inbound passengers for the

purpose of valuation of the items bought by them. They also should have an

option of having the appraisal done there and then rather than being asked to

surrender their valuables and visit the Appraisal Counter the next day to

collect the same.

14. The respondents, in the counter affidavit though have said that no

airport in the country has such an appraisal facility at the airport itself but

the same in our opinion is again no reason. What the respondents have failed

to address is the specific plea of the petitioner, of the other developed

countries having Appraisal Counters at the airport only. Airports in all

countries are situated generally far from the city and if such countries have

felt the need for the Appraisal Counter at the airport, we can be reasonably

sure that the same must have been done for the convenience of the

passengers. Internationalization of the airports in the country has to be not

only for looks but also in terms of convenience and amenities, facilities and

following the practices in vogue at the airports of other countries. We find

that the key strategic objectives of the government, as noted in the Request

for Proposal document floated for privatization of Mumbai and Delhi

Airport, as noted by the Supreme Court in Reliance Airport Developers Pvt.

Ltd. Vs. Airport Authority of India (2006) 10 SCC 1, inter alia were world

class development on both, airside and landside.

15. We therefore dispose of this petition with a direction to the

respondents to within six months herefrom take a reasoned decision on

shifting the existing Appraisal Counter to the airport / in the close vicinity of

the airport, or having an additional counter at the airport/in the close vicinity

of the airport, taking into consideration all possible aspects and may be even

after holding surveys and including what we have observed hereinabove. A

copy of the said decision be forwarded to the petitioner.

No costs.

14. The petition is disposed of in terms of the above.

RAJIV SAHAI ENDLAW, J

CHIEF JUSTICE nd DECEMBER 22 , 2014 „gsr‟..