The state cannot behave as a private litigant: SC

On January 23, 2020, Justices Navin Sinha and Krishna Murari gave a verdict in Special leave arising out of the order rejecting the writ petition as also the review application arising from the same. The Supreme Court observed that the State is the largest litigant as often noted. It stands in a category apart from having a solemn and constitutional duty to assist the court in the dispensation of justice. The State cannot behave like a and rely on abstract theories of the burden of proof.

The court gave the order in a case where the dispute was regarding the imposition of the customs duty on the items. The dispute arose when the consignment charged as duty-free by Inland Water Container Depot (ICD), Hyderabad under the Advance Licence Scheme were subject to leaving of duty which was earlier exempted but after The Notification nos. 203/1992 and 204/1992 were amended by a Notification no. 183/1993 dated 25.11.1993, by which the subject imports became liable for duty, the exemption having been withdrawn.

The appellant made a representation on 20.11.1997 seeking exemption. It was considered favorably in respect of three other consignments under Bill of Entry No.312 dated 12.09.1993, Bill of Entry No.28 dated 10.02.1994 and Bill of Entry No.27 dated 09.02.1994. The entire consignment was imported under the same advance license. In pursuance of the show-cause notice, the appellant was held liable to pay the duty.

The High Court opined that no mandamus for exemption could be issued. The consignments were admittedly imported after 25.11.1993 and before the clarificatory notification dated 18.03.1994. Thus, there was no arbitrariness on part of the respondent. This was the reason that the appellant filed a review petition which was rejected later and SC was approached through special leave.

The court observed that the State acts through its officer who is given powers in trust. The question which arose in court was, the trust so reposed is betrayed, whether by casualness or negligence, will the State still be liable for such misdemeanor by its officers betraying the trust so reposed in them or will the officers be individually answerable.

The court answered the question, in which it considered its opinion in which absolutely no defense of the State authorities to contend that they were not aware of their own notification dated 18.09.1994. The onus heavily rests on them and a casual statement generating litigation by State apathy cannot be approved. The court for better understandability had put emphasis on National Insurance Co. Ltd. vs. Jugal Kishore, (1988) 1 SCC in which the Court has consistently emphasized that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who is under an obligation to act fairly. In many cases, even the of the vehicle for reasons known to him does not choose to produce the policy or a copy thereof.


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