S SYED MOHAMED Vs. ASSISTANT COLLECTOR OF CUSTOMSCOCHIN

JUDGEMENT

(1.) The petitioner was doing business as Custom-House Broker subject to the approval or licence, which may be referred to hereafter as licence, made or granted in the year 1949, in pursuance of S.202 of the Sea Customs Act, 1878, referred to hereafter as the Act, the material parts of which before amendment read as follows:-

(2.) The petitioners case is that he has a fundamental right under Art.19(1) (g) of the Constitution to carry on his business as Custom-House Broker, for which no licence is necessary, having obtained an irrevocable licence under S.202 before its amendment The contention of the respondents, as appears from the counter affidavit is, that a licence is necessary, but that the petitioner is not entitled to it. S.202 [1] as amended prescribes that a licence is necessary for any person to carry on business as a custom - house agent. Under the rules custom-house agents are of two categories, Clearing Agents and Custom- House Brokers, the petitioner being of the latter category. Under S.202 [1], after a notified date, no person could act as a custom-house agent, except under a licence which may be issued. S.202 (2) conferred the power on the Sea Customs Authority to make rules generally for carrying out the provisions of S.202 [1], and in particular, for carrying out the purposes specified in clauses [a] to [f]. Such rules have been framed, but the preliminary notification under S.202 [1] has not yet been made with the result that the contemplated prohibition against carrying on business as customhouse agent without a licence, has not yet come into force. The petitioner is therefore entitled to carry on his business, without a licence. He has a fundamental right under Art 19[1][g] of the Constitution to carry on business as Custom-House Broker, whose duties are part of those specifically described in S.202[I] of the Act as pertaining to a custom-house agent, and are regulated by rules framed for the purpose.

(3.) The next question is, whether the petitioner can be granted any relief in this petition. The petitioner made his application for the renewal of the licence towards the end of the year 1956. By Ext. P5, the Assistant Collector of Customs ordered, that no renewal could be made as from June 18, 1957. The petitioner challenged this order on appeal before the Customs-Collector, but it was dismissed by Ext. P7 dated August 31, 1957. It was indicated in the preface to Ext. P-7, that the petitioners remedy lay in moving the Central Government by a revision petition, and probably acting on this suggestion, the petitioner applied in revision to the Central Government by Ext. P8 on September 23, 1957. The revision petition was dismissed by Ext. P9 on June 26, 1958, and this petition was preferred within one month of that date. For the decision of this case, it may be taken, that the revision petition to the Central Government was filed with out jurisdiction, and for that reason it was contended for the respondents, that the time during which the revision petition was pending must be weighed against the petitioner, in assessing whether he is guilty of laches or not, in preferring this petition under Art.226.