2001 (7) TMI 152 - HC - Customs

Court recalls ex parte order in Writ Petition for lack of notice, providing fair opportunity to prepare.

CHANDRAPRABHU INTERNATIONAL LTD. Versus COMMR. OF CUS., KOLKATA

The Court set aside and recalled an ex parte order in a Writ Petition due to lack of prior notice as required by Rule 26 of the High Court's Rules for ... Writ petition - Ex parte order Issues:Setting aside and/or recalling an ex parte order passed in a Writ Petition due to lack of prior notice as per Rule 26 of the High Court's Rules for applications under Article 226 of the Constitution of India.Analysis:The judgment revolves around the application for setting aside an ex parte order passed in a Writ Petition due to the absence of prior notice as required by Rule 26 of the High Court's Rules for applications under Article 226 of the Constitution of India. The Commissioner of Customs contended that the order was obtained without serving proper notice, denying a reasonable opportunity for a hearing. The applicant argued that notice was served late, leaving insufficient time to engage counsel, and the order was obtained before they could take necessary steps. The key issues for consideration were whether the 48 hours' prior notice under Rule 26 meant working hours or numerical hours, and whether the applicant had a valid reason for not appearing at the time of the order.The Court examined Rule 26 and Rule 28 of the High Court's Rules, emphasizing that the purpose of the 48 hours' notice was to allow the respondent to seek instructions or take necessary steps to contest the hearing. It was clarified that the 48 hours should be counted as working hours, not just numerical hours, to ensure a fair opportunity for preparation. The Court highlighted that holidays, such as Saturdays and Sundays, should be considered in calculating the notice period to enable the concerned party to collect information and documents effectively.Based on the facts presented, the Court found that the applicant had a valid reason for not appearing at the hearing due to the short notice period. The Court noted the prompt actions taken by the Commissioner of Customs in sending necessary papers to the relevant department but acknowledged that insufficient working hours were available for proper preparation. Consequently, the Court held that the impugned order should be set aside and recalled, allowing the writ petitioner to seek a fresh interim order before the regular Bench based on the same facts.The judgment also addressed the release of goods in accordance with the earlier order, with conflicting submissions from the parties. It was clarified that parties should take appropriate steps in compliance with the law following the judgment. All concerned parties were directed to act upon a Xerox signed copy of the operative portion of the judgment and order, subject to the usual undertaking.