ASAD CASSIM Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner is the sole proprietor of M/s. Trans Globe Freight Forwarders, Chennai. He had filed an application for issuance of a Customs House Agents Licence. It is alleged in the petition that before 1997, the petitioner while functioning as Managing Partner of M/s. Integrated Freight Systems was carrying on business as Customs House Agents Licence and even though licence was valid till 2000, the same had been surrendered in 1997. The application filed by the petitioner was rejected on 22.12.1988 solely on the ground that the petitioner was not a G Card holder and the employees R. Sasikumar, D. Suresh and M.G. Naganathan though holding G Card, were not graduates. The aforesaid order of the second respondent was challenged in appeal before the third respondent, who has rejected the same on similar grounds. The orders passed by the respondents 2 & 3 are challenged mainly on the ground that those orders are based on misconception of Regulation 6. In the connected writ petition, it has been prayed that Regulation 6 (a) of the Customs House Agents Licensing Regulations may be declared as ultra vires and unconstitutional.

(2.) The writ petitions have been resisted by the Union of India and other two respondents. It has been submitted by the Additional Solicitor General appearing on behalf of the respondents that Regulation 8 has already been upheld by the Supreme Court in the decision reported in 1996 (10) SCC 136 (FEDERATION OF CUSTOMS HOUSE AGENTS ASSOCIATIION AND OTHERS Vs. UNION OF INDIA AND OTHERS) and Regulation 8 has to be read along with Regulation 8 and in view of the decision of the Supreme Court that Regulation 6 is not ultra vires. The orders passed by the respondents 2 & 3 are also sought to be justified on merit.

(3.) Before considering the questions raised, it is necessary to notice the relevant provisions:- Section 2(35) of the Customs Act lays down that regulations means the regulations made by the Board under any provision of this Act. Section 146 provide that no person shall carry on business as an agent relating to the entry or departure of a conveyance or the import or export of goods at any customs-station unless such a person holds a licence granted in this behalf in accordance with the regulations Section 146(2), being relevant is extracted hereunder : . . . (2) The Board may make regulations for the purpose of carrying out provisions of this section and, in particular, such regulations may provide for - (a) the authority by which a licence may be granted under this section and the period of validity of any such licence; (b) The form of the licence and the fees payable therefor; (c) the qualifications of persons who may apply for a licence and the qualifications of persons to be employed by a licensee to assist him in his work as an agent; (d) the restrictions and conditions (including the furnishing of security by the licensee) subject to which a licence may be granted; (e) the circumstances in which a licence may be suspended or revoked; and (f) the appeals, if any, against an order of suspension or revocation of a licence, and the period within which such appeals shall be filed. It is not disputed that appropriate regulations known as Customs House Agents Licensing Regulations, 1984 (hereinafter called the Regulations) have been made in exercise of power conferred under Section 146 (2) of the Customs Act, 1962. Regulation 5, being relevant, is extracted hereunder :- 5. Application for licence. - (1) An application for a licence to act as a Custom House Agent in a Customs Station shall be made in Form A and shall inter alia contain the name and the address of the person applying; and (2) If the applicant is a firm - (a) the name and address of every partner of the firm, the firms name, and (b) the name of the partner or the duly authorised employee, who will actually be engaged in the clearance of goods or conveyance through the cusoms. (3) If the applicant is a company - (a) the name of each director, manager, managing director, and (b) the names of director, manager or the duly authorised employee, who will actually be engaged in the clearance of goods or conveyances through the customs. Regulation 6, on the interpretation of which the result of the present litigation raised, is extracted so far as relevant here under :- 6. Conditions to be fulfilled by the applicant. - The applicant or the person referred to in clause (b) of sub-regulations (2) and (3) of Regulation 5 as the case may be, shall prove to the satisfaction of the Commissioner that : (a) the applicant is a graduate from recognised University and is an employee of a licensee and that he possesses a permanent pass Form G prescribed under regulation 20 and has the experience of work relating to clearance of goods through the Customs, for a period of not less than three years in the capacity of such a pass-holder: Provided that the Commissioner may relax the possession of permanent pass in Form G to one year for reasons to be recorded in writing.