HINDUSTAN SHIPPING AGENCY Vs. UNION OF INDIA

JUDGEMENT

(1.) IN this writ petition M/s. Hindustan Shipping Agency, the petitioner no. 1, an unregistered partnership firm and the petitioner No. 2 a partner thereof have challenged the order dated 10th February, 2009 passed by the Commissoner of Customs (Airport and Administration), Kolkata, respondent No. 2 suspending the Customs House Agent Licence held by the petitioner No. 1 in exercise of the power conferred under Regulation 20 (2) of the Customs House Agent Licence Regulations, 2004, (hereinafter referred to as 'the Regulations') with immediate effect. The matter was moved on 25th February, 2009 when directions were issued for filing of affidavits. Affidavits have since been filed.

(2.) THE principal grievance of the petitioner is that licence has been suspended under Regulation 20 (2) without following the procedure for suspension under Regulation 22 of the Regulations which postulates grant of opportunity to the petitioner to submit a written statement and an opportunity of being heard. In this regard reliance was placed on the judgment in W. P. No. 195 of 2008, Mishra and Mishra (Agencies)Enterprises and Anr. v. Union of India and Ors. So far as the point with regard to the maintainability of the writ petition is concerned relying on an unreported judgment by the Division Bench delivered on 19th August, 2008 in M. A. T. No. 593 of 2008 (C. A. N. No. 7062 of 2008), M/s. Ujjal Transport service v. State of West Bengal and Ors. it was submitted since Court has ample power under Articles 226 and 227 of the Constitution of India to do substantial justice and as there has been infringement of fundamental rights, the petition is maintainable.

(3.) OPPOSING the writ petition it was submitted by Mr. Sardar Amjad ali, learned Senior Advocate that since the petitioner No. 1 is an unregistered firm, in view of the provisions contained in Section 69 of the indian Partnership Act, 1932, the writ petition is not maintainable. In view of the non-obstante clause, Regulation 20 (2) is an independent provision giving authority to suspend an agent with immediate effect. Therefore, as it is an independent provision and suspension has been carried out, applicability of Regulation 22 does not arise. As the grounds of suspension have been intimated, the law laid down in Mishra and Mishra (supra) is not applicable. Consequently, the action under challenge is just and proper. Moreover, authority has not taken follow up steps due to the pendency of the writ petition. Submission was as under Regulation 22 (8) there is a provision for alternative remedy, the writ petition is not maintainable.