Sheikh M. SULTAN AHMED MUALLA RULER IN ABU DHABI VS SECRETARY, REVENUE DIVISION, ISLAMABAD
2012 P T D 1365
2012 P T D 1365
[Federal Tax Ombudsman]
Before Dr. Muhammad Shoaib Suddle, Federal Tax Ombudsman
Sheikh M. SULTAN AHMED MUALLA RULERIN ABU DHABI and another
versus
SECRETARY, REVENUE DIVISION,ISLAMABAD and another
Complaint No.33/ISD/CUS(04)/339 of 2012, decided on 30/05/2012.
(a) Customs Act (IV of 1969)---
----Ss. 138, 139, 168, 169, 179, 180 & 181---Customs Rules, 2001, Chap.1, R.2(g)---Punjab Wildlife (Protection, Preservation, Conservation and Management) Act (II of 1974), Preamble---Federal Tax Ombudsman Ordinance (XXXV of 2000), Ss. 2(3) & 22---Unlawful 'disposal' of falcons belonging to the complainants after they had been declaredas 'unclaimed' by the customs---Authority of Customs and the Wildlife Department to dispose of the falcons---Scope---Jurisdiction of Magistrate to order release of the falcons---Complainants who were Commercially Important Persons (CIPs) brought falcons into Pakistan and when their baggage arrived at the airport, their representative approached the customs with their passports, falcons' tags and health certificates issued by the foreign government, for clearance---Customs official informed the said representative that clearance of the falcons also required import authorization by the Ministry of Foreign Affairs and the Ministry of Environment and a "no objection certificate" from the National Council for Conservation of Wildlife---Subsequently customs declared the falcons as 'unclaimed' and handed them over to thePunjab Wildlife Department, which released them in a forest after obtaining orders of the Magistrate---Contentions of the customs officials were that every passenger was under a statutory duty to declare the goods being imported and obtain clearance after satisfying the customs that the import was in accordance with the law; that no one claimed the falcons and therefore they were handed over to the Wildlife Department for safe custody; that the signatures on the affidavit annexed with the complaint were forged and did not tally with the signatures on the photocopies of the passports---Validity---Falcons were present in cages which bore the airline tags showing the names of owners, flight number and date---Customs officials declared the falcons to be 'unclaimed' despite being informed that their owners (complainants) were in the airport lounge waiting for their clearance---Passports of complainants were produced before the Customs officials and representative of the complainants had presented all the documents to the customs at the airport but he was never asked that the owners of falcons should personally appear before the customs officials---Customs officials claimed that they did not have the facilities for keeping the falcons, therefore they handed them over to the Wildlife Department, which also had no such facility; in circumstances there could be no rationale for handing the falcons over to the Wildlife Department, which then approached the Magistrate for the release of the falcons in the forests---Law did not give the Magistrate such a jurisdiction nor were the officials of the Customs and the Wildlife Department empowered under the law to dispose of the falcons in such amanner---Entire procedure adopted by customs was illegal, mala fide, and was apparently adopted to criminally deprive the complainants of their high value possessions---Sections 139, 168, 169 179, 180, 181 of the Customs Act, 1969, were completely ignored and the falcons could not have been justifiably detained rather anopportunity had to be given to the complainants to obtain the required permissions from the Ministries concerned---Complainants had a month to complete said formalities but their representative was not informed of the developments, even though he was diligently approaching both the customs and the Wildlife officials---Maladministration in terms of S. 2(3) of the Federal Tax Ombudsman Ordinance, 2000, in unlawfully treating the falcons as 'unclaimed' was established---Illegal confiscation of the falcons and their disposal in contravention of the law for improper motive, was apparent in the circumstances---Ombudsman made recommendations to the Revenue Division to either return the falcons to the complainant, or to pay them special cost thereof---Ombudsman further observed that wildlife officials had played despicablerole in the criminal transaction.
(b) Federal Tax Ombudsman Ordinance (XXXV of 2000)---
---Ss. 2(3), 11 & 22---Customs Act (IV of 1969) Ss. 138, 139, 168, 169, 179, 180 & 181---Punjab Wildlife (Protection, Preservation, Conservation and Management) Act (II of 1974), Preamble---Maladministration by Customs officials---Unlawful 'disposal' of falcons belonging to the complainants after they had been declaredas 'unclaimed' by the customs---Procedure for redressal of grievance---Scope---Compensation for the falcons---Contentions of the Customs officials were that compensation proceedings under S. 22 of the Federal Tax Ombudsman Ordinance, 2000, could only be invoked after the determination in terms of S. 11 of the Ordinance, and that the complainants had not prayed for compensation in the complaint---Validity---Complainants had stated an amount of Rs. 35 million in their complaint as costs of the falcons---Contention of Customs officials regarding determination under S. 11 of the Federal Tax Ombudsman Ordinance, 2000, prior to invoking S. 22 of the Ordinance, was misconceived as there was no such requirement in the Ordinance---Notice was given to the concerned officials for the production of falcons but they failed to do so---Subsequently a show-cause notice, under S. 22 of the Federal Tax Ombudsman Ordinance, 2000, was issued, therefore, contention of the Customs officials regarding the stage and time of issuance of said show-cause notice was not sustainable in the eyes of law---Maladministration in terms of S. 2(3) of the Federal Tax Ombudsman Ordinance, 2000, in unlawfully treating the falcons as 'unclaimed' was established---Illegal confiscation of the falcons and their disposal in contravention of the law for improper motive, was apparent in circumstances---Recommendation was made to the effect that Revenue authorities were to direct the Customs officials concerned to either return the falcons to the complainants or pay them Rs.35 million as costs of the falcons, in addition to Rs.1 million as compensation for the mental and emotional anguish and distress caused to the complainant.
(c) Customs Act (IV of 1969)---
----S. 217---Customs Rules, 2001, Preamble---Federal Tax Ombudsman Ordinance (XXXV of 2000), Ss. 2(3) & 22---Actions done or intended to be done in good faith in pursuance of the Customs Act, 1969 or Customs Rules, 2001---Legal proceedings against Federal Government or public servant for such actions---Maintainability---Maladministra-tion by Customs officials---Illegal confiscation of falcons brought from a foreign country by Commercially ImportantPersons (complainants) and their unlawful disposal by the customs after declaring them to be 'unclaimed'---Contention of the customs officials was that under the Customs Act, 1969, no suit, prosecution or other legal proceedings could lie against the Federal Government or any public servant for anything which was done or intended to be done in good faith in pursuance of Customs Act or Rules---Validity---No immunity existed against patently fraudulent and perverse acts---Actions of the Customs officials in the present case, could not be taken to be acts done in 'good faith' and their acts were clearly mala fide and brought both the Government and the nation into disrepute, locally as well as internationally.
Yasin Tahir Senior Advisor and Hafiz Ahsan Ahmed Khokhar, Advisor Dealing Officers.
Malik Nadeem Aslam Representative of the Complainants.
Imtiaz Ahmed Khan, Collector Customs, Zahid Ali Baig, Additional Collector, Tahir Habib Cheema, AC Airport Customs and Tariq Mahmood Awan, Superintendent Customs Department Representatives for Customs.
Raja M. Javed, Deputy Director Wildilife Rawalpindi, M. Nadeem Qureshi, Assistant Director Wildlife, Rawalpindi, Ehsan Ahmed Raja, District Wildlife Officer, Rawalpindi, Arshad Hussain Shah, Inspector Wildlife Rawalpindi, Amjad Abbasi, Wildlife Watcher Islamabad Airport and Wajid Mahmood, Wildlife Watcher Islamabad Airport for Punjab Wildlife Department.
FINDINGS/RECOMMENDATIONS
DR. MUHAMMAD SHOAIB SUDDLE, (FEDERAL TAX OMBUDSMAN).---The complaint is against alleged maladministration by Customs officials, posted at Islamabad airport, for unlawful 'disposal' of four falcons declaring them as 'unclaimed'.
2.The complaint was referred for comments to Secretary, Revenue Division, in terms of section 10(4) of the FTO Ordinance 2000. A copy of the complaint was also endorsed to the Punjab Wildlife Department, Rawalpindi. In response, the FBR, vide Letter No.1(339)S(TO-11)/2012 dated 21-3-2012, forwarded parawise comments of Collector Customs, MCC, Islamabad. The Punjab Wildlife Deptt, Rawalpindi, also filed para-wise comments dated 16-3-2012.
3.During the hearing, the AR, Malik Nadeem Aslam, stated that Sheikh Muhammad Sultan Ahmed Mualla, a member of the ruling family of UAE, and his friend/co-passenger, Mr. Al-Tunaiji/Saif Mohamed, arrived with four falcons (three belonging to Sheikh Mualla and one to Mr. Tunaiji), by flight EK-614. The flight originated from Dubai and reached Benazir Bhutto International Airport, Islamabad, at 0050 hours on 10-3-2012. The two Royal Visitors waited in the Rawal Lounge while Malik Nadeem Aslam approached the Customs with their passports and falcons' tags and Health Certificates, for clearance. The on-duty Supdt Customs, Mr. Tariq Mehmood Awan, informed Malik Nadeem Aslam that the clearance of falcons also required import authorization of the Ministry of Foreign Affairs and the Ministry of Environment. Mr. Amjad Abbasi, and Mr. Wajid Mahmood, the Wildlife Watchers of the Punjab Wildlife Department, Rawalpindi, posted at the airport, additionally advised Malik Nadeem Aslam to produce No Objection Certificate (NOC) by the National Council for Conservation of Wildlife (NCCW). In the meanwhile, at about 2-00 a.m., Mr. Gul Muhammad Jogezai, ex-Governor Balochistan, a co-passenger in the same flight, also spoke to the Supdt Customs for early clearance of falcons, but he too was told of additional documents required for the purpose.
4.As the Federal Government offices were closed on 10-11 March, 2012, being the weekend, and it was apparently not possible to obtain the required documents before Monday the 12th March, Malik Nadeem Aslam and the owners of falcons left the Airport at 2-38 a.m.
5.Malik Nadeem Aslam checked the position of falcons in the afternoon, when he was told by the Customs that the birds were handed over to the Punjab Wildlife Department at about 12-00 p.m. that day. He then contacted Raja M. Javed, Incharge Wildlife Deptt, Rawalpindi, to know the fate of falcons. Being in the Punjab Government, his office was open on Saturday the 10th March, 2012. Raja Javed did not give a definite reply except to say that the falcons were in the process of being handed over to his staff by the Customs. He then contacted the IG Forests/Incharge NCCW, who, according to Malik Nadeem Aslam, talked to Raja Javed, directing him to deal with the case as per law. Malik Nadeem Aslam next contacted Secretary, Wildlife Deptt, Government of the Punjab, who, after checking the position with the concerned authorities at Rawalpindi, informed him that the falcons had already been released in the air in the forests of Murree Hills, after obtaining orders of the Magistrate as the Customs had declared the birds as 'unclaimed'.
6.The complainants along with Malik Nadeem Aslam approached the FTO Office on 15-3-2012, praying for compensation for the immeasurable emotional loss, in addition to financial loss of Rs.35 million in terms of the value of falcons.
7.During the hearing, Mr. Tariq Mahmood Awan, Supdt Customs, admitted that immediately after arrival of the flight EK-614, Mr. Muhammad Jaffer, Sub-Inspector, FIA (Immigration), contacted him to know the procedure and documentary requirements for the release of falcons belonging to members of the Royal family of UAE, who were there in the Rawal Lounge. At about 2 a.m., Malik Nadeem Aslam and Mr. Gul Muhammad Jogezai, Ex-Governor of Balochistan, also contacted him for the release of the falcons. He informed them that the passports and Health Certificates issued by the UAE Government were valid for import of falcons from UAE and for quarantine requirements in Pakistan, but import authorizations by Pakistan's Ministry of Foreign Affairs and the Ministry of Environment were also required for their clearance.
8.According to Supdt Customs, as Malik Nadeem Aslam did not possess the requisite import authorizations and as there were no arrangements available with the Customs Deptt for safe custody and upkeep of the falcons, these were handed over to the Punjab Wildlife Deptt, Rawalpindi. Answering a question as to why the falcons were treated as 'unclaimed' when he knew fully well who their owners were, he stated that since the passengers had not appeared in person for claiming the ownership of the falcons, these were treated as 'unclaimed' in terms of section 139 of the Customs Act, 1969. Answering another query as to why he hastily handed over the falcons to the Punjab Wildilife Deptt, without requiring the Wildlife officials in writing to be responsible, for their safe custody, pending the completion of necessary authorizations and NOCs, the Supdt Customs stated that AC Customs (Mr. Tahir Habib Cheema) had verbally informed Mr. Ahsan Raja, District Wildlife Officer, Punjab Wildlife Deptt, Rawalpindi, that the falcons were being handed over simply for safe custody as the Customs did not have the requisite arrangements.
9.Mr. Ahsan Raja, District Wildlife Officer Rawalpindi, confirmed having been so informed by the AC Customs, adding, however, that hehad told the AC Customs that the Punjab Wildlife Deptt. did not have any arrangement for safe custody of falcons. Also, that if the Customs still wanted to hand over the detained falcons to the Punjab Wildlife Deptt., they would be dealt with in terms of Punjab Wildlife Act, 1974.
10.The complaint has been examined in the light of the written and oral submissions of the parties and the facts on record.
11.The four falcons were brought into Pakistan by two Commercially Important Persons (CIPs) who, as such, were taken to the Rawal Lounge of Benazir Islamabad International Airport. As soon as their baggage arrived in the regular lounge, Malik Nadeem Aslam, a 'related person' as visualized in Chapter-I, Rule 2 of the Customs Rules 2001, approached the Customs authorities along with valid passports bearing the falcons ring-numbers and their Health Certificates issued by the UAE government. Clearance of baggage for CIPs and VIPs is normally done by the staff at Rawal Lounge. The four falcons were in three cages. The cages bore the airline tags showing the names of owners, flight number and date. These are admitted facts.
12.Admittedly, Malik Nadeem Aslam was asked to obtain Import authorization of the Ministry of Foreign Affairs and a certificate of the Ministry of Environment permitting the import of falcons. The owners of the falcons and Malik Nadeem Aslam left the airport as the government offices required to be approached were to open on 12-3-2012, after the week end.
13.The Customs officials declared the falcons to be 'unclaimed' when they knew that the owners of falcons were there in the Rawal Lounge. Their representative, Malik Nadeem Aslam, had presented all the documents. He was never asked that the owners of falcons should personally appear before the Customs officials. Admittedly, the passports of CIPs present in the Rawal Lounge were produced before the Customs officials. In the attendant circumstances, the falcons could not have been declared to be 'unclaimed'. In the ordinary course when a piece of baggage is found unclaimed, it goes to 'Lost and Found' Section to be disposed of through the prescribed procedure.
14.The Customs officials claim that as they did not have the facilities for keeping the falcons, they handed these over to the Wildlife Department for safe custody. The Wildlife Department also had no such facility. There can thus be no rationale for handing the falcons over to the Wildlife Department, which then approached the Magistrate with normal jurisdiction, as Illaqa Magistrate, over the airport area, for the release of the falcons in the forests of Murree. The law did not give the Magistrate such a jurisdiction. Nor were the officials of the Customs and the Wildlife Department empowered under the law to dispose of the falcons in this manner. The entire procedure that they adopted was illegal, mala fide, and apparently adopted to criminally deprive the owners of their high value possessions.
15.The falcons were neither legally seized nor confiscated. The provisions of sections 139, 168, 169 179, 180, 181 of the Customs Act were completely ignored. The falcons could not have been justifiably detained except to give an opportunity to the claimants to obtain the required permissions from the Ministries concerned. The owners had a month to complete these formalities. Malik Nadeem Aslam was not informed of the subsequent developments, even though he was diligently approaching both the Customs and the Wildlife officials. He was deliberately kept in the dark.
16.The entire chain of events appears to have been criminally contrived to deprive the complainants of the falcons. They were caused mental and emotional anguish and distress. According to them, they were caused a loss of Rs.35 million just as the value of falcons. They were denied the pleasure of hunting with these falcons in Pakistan. They had travelled from UAE to Pakistan for this purpose.
17.On 16-3-2012, this office issued notice to the Deptt for the production of falcons at the FTO Secretariat for delivery to their bona fide owners, but the concerned Customs officials failed to do so. Thereafter, on 30-4-2012, an SCN under Section 22 of the FTO Ordinance 2000 was issued to Mr. Tahir Habib Cheema, Deputy Collector Customs, and Mr. Tariq Mahmood Awan, Supdt Customs, asking them to explain why compensation, including an amount of Rs.35 million may not be awarded to the complainants.
18.Both Mr. Tahir Habib Cheema, Deputy Collector Customs, and Mr. Tariq MahmoodAwan,SupdtCustoms,filedtheirreplieson4-5-2012, taking almost the same ground that compensation proceedings under section 22 of the FTO Ordinance, 2000 could be invoked only after the determination in terms of section 11 of the FTO Ordinance, 2000. They also contended that every passenger was under a statutory duty to declare the goods being imported and obtain clearance after satisfying the Customs that the import was in accordance with law. In the instant case, as no one claimed the falcons, these were handed over to the Wildlife Department for safe custody. Moreover, the signatures on the affidavit annexed with the complaint were, according to them, forged and did not tally with the signatures on the photocopies of the passports. Mr. Tahir Habib Cheema, Deputy Collector Customs, took the additional ground that the complainant had not prayed for compensation in the complaint, while Mr. Tariq Mahmood Awan, contended that under section 217 of the Customs Act, 1969, no suit, prosecution or other legal proceedings could lie against the Federal Government or any public servant for anything which was done or intended to be done in good faith in pursuance of Customs Act or Rules.
19.As regards, determination under section 11 of the FTO Ordinance prior to invoking section 22 ibid, there is no such requirement in FTO Ordinance. Section 22 of the FTO Ordinance reads as follows:
"22. Award of costs and compensation and refunds of amounts--
(1)The Federal Tax Ombudsman may, where he deems necessary, call upon a Tax Employee or the Revenue Division to show cause why compensation be not awarded to an aggrieved party for any loss or damage suffered by him on account of any maladministration committed by such Tax Employee or Revenue Division, and after considering the explanation and hearingsuch Tax Employee or Revenue Division, award reasonable costs or compensation and the same shall be recoverable as arrears of land revenue from the Tax Employee or Revenue Division.
(2)In cases involving payment of illegal gratification to any Tax Employee, or to any other person on his behalf, or misappropriation, criminal breach of trust or cheating, the Federal Tax Ombudsman may order the payment thereof for credit to the government or pass such other order as he may deem fit.
(3)Anordermadeundersubsection(2)againstanypersonshall not absolve such person of any liability under any other law."
20.A notice was given on 16-3-2012 to the concerned officials for the production of falcons. They failed to do so. It was followed by a show-cause notice dated 30-4-2012, under section 22 of the FTO Ordinance. The contention of the Customs officials about the stage and time of issuance of this Show-Cause Notice thus is misconceived and not sustainable in the eyes of law.
21.The point that no passenger had claimed the falcons is also neither correct nor reasonable. During the hearing, it was admitted by the Customs officials that Sub-Inspector Jaffar of FIA (Immigration), Malik Nadeem Aslam and Mr. Gul Muhammad Jogezai, Ex-Governor of Balochistan, had met the Supdt Customs at about 2 a.m. on 10-3-2012, presenting valid passports bearing the ring numbers of the falcons, the Health Certificates issued by the UAE Government, and the airline tags. They had also informed the Customs officials that the foreign dignitaries were in the Rawal Lounge awaiting the falcons' clearance.
22.The next contention that the claim of compensation was not submitted by the complainants is also incorrect, as Rs.35 million is stated in para-5 of the complaint as cost of the falcons. An opportunity was given to the concerned officials to return the falcons, but they failed. Hence this point is repelled being contrary to the facts.
23.As for the forged signatures of complainants, during the hearing it was admitted that the falcons belonged to the complainants and so this belated objection is rejected as being spurious.
24.The last point is that according to section 217 of the Customs Act, 1969, no suit, prosecution, or, other legal proceeding lies against the Federal Government or any public servant for anything which is done or intended to be done in good faith in pursuance of the Customs Act, 1969, or the rules made there-under. Suffice it to say that there is no immunity against patently fraudulent and perverse acts. The action of theCustoms officials cannot be taken to be an act done in 'good faith'. Their acts were clearly mala fide and brought both the Government and the Pakistani nation into disrepute, locally as well as internationally.
Findings:--
25.Maladministration in terms of section 2(3) of FTO Ordinance in unlawfully treating the falcons as 'unclaimed' is established. It is also manifest from the illegal confiscation of the falcons and their disposal in contravention of the law, for improper motives.
Recommendations:--
26.Revenue Division to-
(i)direct Supdt Customs (Mr. Tariq Mahmood Awan) and AC Customs (Mr. Tahir Habib Cheema) to either return the falcons to the complainants or pay them to the extent of Rs.35 million as cost of the falcons, in addition to paying Rs.one million as compensation for the mental and emotional anguish and distress caused due to their maladministration; and
(ii)report compliance within 30 days.
27.The Wildlife officials have played a despicable role in the criminal transaction. A copy of these Findings be endorsed to the Secretary Wildlife Department of the Punjab for appropriate action. The Magistrate also assumed a jurisdiction which was never assigned to him. Without hearing the owners of the falcons, he allowed their release in the forests of Murree. The Hon'ble Chief Justice of Lahore High Court, Lahore, be also so apprised.
M.W.A./99/FTOOrder accordingly.