CHINUBHAI KALIDAS Vs. UNION OF INDIA

JUDGEMENT

(1.) The Petitioner firm by this Petition under Arts. 226 and 227 of the Constitution of India has moved this Court for appropriate writs orders and directions to quash and set aside the order of the Collector Customs Ahmedabad-respondent No. 2 herein dated 25/02/1986 rejecting the Petitioners application for grant of licence under Regulation No. 5 of the Customs House Agents Licencing Regulations 1984 and cancelling the temporary Customs House Agents Licence issued to the petitioner with effect from the date of the said order and also praying for directions enjoining respondent No. 2 to renew the said temporary licence in favour of the Petitioner so as to enable the Petitioner to carry on business of customs house agents till the applications of the petitioner for permanent licence are finally decided according to law.

(2.) A few facts need be noticed in order to appreciate the contentions raised in this petition. The firm of M/s. Chinubhai Kalidas & Brothers as constituted from time to time carried on business of clearing forwarding and shipping agents since the year 1917 A.D. at Bombay Port. The firm consisted originally of four partners namely S/Shri Arvind Surendrabhai Ashwin Surendrabhai Kantilal N. Patel and Smt. Purnima Atul Sheth. This firm was constituted under a deed of partnership dated 15/09/1978 It appears that the said firm made an application dated 1/08/1984 to respondent No. 2 for issue of Customs House Agents Licence to work as Customs House Agents at Ahmedabad. The Collector of Customs Ahmedabad respondents No. 2 herein granted temporary licence being Licence No. 3 of 1984 dated 14/09/1984 to the said firm authorising the firm to transact business as Customs House Agents at Ahmedabad Customs House for a period of one year on the condition that the said work would be transacted through either Shri Arvind Surendrabhai or Shri Ashwin Surendrabhai. The said firm was also granted licence to act as Customs House Agents for the port of Bombay dated 25/08/1984 It appears further that Shri Kantilal Nagindas Patel a partner of the said firm expired on 4/06/1985 Clause 8 of the aforesaid partnership deed provided that the death retirement or insolvency of any partner would not dissolve the partnership as to other partners and the partnership business would be continued as hitherto in the same name and style until the new partnership is formed subject to the right to carry on such business would not be effective after a period of six months. The fact of the demise of Kantilal N. Patel was intimated to the Collector of Customs-respondent No. 2 herein by letter of the firm dated 6/06/1985 A fresh deed of partnership was executed on 15/06/1985 reconstituting the firm so as to include over and above Shri Arvind Surendrabhai and Shri Ashwin Surendrabhai Shri Harsh Kantilal Patel Smt. Purnima Atul Sheth and Shri Anand Arvind Sheth as Partners of the firm with effect from 5-6-1985. The new firm was called upon by the Superintendent (Technical) Customs & Excise Collectorate Ahmedabad by his letter dated 18/06/1985 to furnish the death certificate of Kantilal N. Patel from the competent authority. The Petitioner firm therefore by its application dated 29/07/1985 addressed to the Assistant Collector of Customs Ahmedabad applied for confirmation of the charge in the constitution of the firm and stated that the new partnership deed has been submitted for registration to the Registrar of Firms and no sooner the same was received the petitioners would submit the same to the Assistant Collector. The application for confirmation of the change was returned by the Assistant Collector under the cover of his letter dated 8/08/1985 stating that the same was required to be submitted in the prescribed form together with the certified copies of the partnership deeds of the original firm and the new firm. Since the temporary licence was expiring on 13/09/1985 the petitioner firm made an application on 10/08/1985 for renewal of temporary licence for a further period of one year. The Superintendent of Customs by his letter dated 20/08/1985 intimated the petitioner-firm that since the firm has undergone a change in constitution on account of the death of a partner and as application for fresh licence would be required to be submitted under Regulation 16 and therefore the question of renewal of temporary licence did not arise. The petitioner firm vide its letter of 2/09/1985 submitted an application in form A for fresh licence and also requested the Additional Collector that the Petitioner firm be allowed to continue to work under the old licence till such time as the Additional Collectors office might take for grant of fresh licence. The request was again reiterated in the reminder dated 10/09/1985 The Assistant Collector Kundla by his letter of 13/09/1985 requested the Petitioner to furnish the registration certificate of the firm by return of post. The Petitioner firm by its letter of 25/09/1985 informed the Assistant Collector Kundla that the amended registration certificate would be available only after three or four months and therefore forwarded the photo copies of form E intimating the change in the constitution of the firm to the Registrar of Firms. It appears that the Superintendent of Customs Ahmedabad by his letter dated 23/09/1985 called for an explanation from the petitioner for the delay which has taken place in making the application for fresh licence under Regulation 16(1) which required the intimation as to the change in the constitution of the firm to be sent within 30 days thereof. The petitioner firm by its letter of 25/09/1985 explained the delay in making the application. The Additional Collector Customs fixed the hearing of the case on 23/10/1985 which intimation was received by the petitioner firm on 26/10/1985 and therefore requested the Additional Collector by its letter of even date to fix some other date. Accordingly next hearing was fixed on 5/11/1985 The Petitioner firm submitted a written representation inter alia explaining the position of Shri Anand Arvindbhai Sheth and requested for permission for change in the constitution of the firm by including him as a partner. It is claimed by the petitioners that Collector of Customs and Central Excise Rajkot had approved the change in the constitution of the firm as per the partnership deed dated 16/06/1985 and necessary endorsement had been made in the Customs House Agents Licence for the Port of Kundla. The Petitioner firm had forwarded true copy of the certificate for approval of the change in the constitution by the Registrar of Firms. The grievance of the petitioner is that inspite of complying with all the formalities respondent No. 2 has passed the impugned order without giving any opportunity of hearing. The petitioners have therefore moved this Court for the reliefs as stated hereinabove.

(3.) Pursuant to the Rule issued by this Court the respondents have filed reply affidavit of the Additional Collector Ahmedabad justifying inter alia the impugned order on the ground that the petitioner firm was not entitled to the licence since the conditions prescribed in Regulation 16(2) and (3) have not been fulfiled and Regulation No. 16 would not be applicable. The Collector has also found that the petitioner firm misrepresented to the Collector at the time of personal hearing that the Bombay and Kundla Customs Ports have approved the changes in the constitution of the firm and corrections have been made in the licence accordingly. In that view of the matter the Collector rejected the application and also cancelled the temporary licence granted to the petitioner firm.