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M/s Shine Travels & Cargo P Ltd v. Union Of India & Others - WRIT TAX No. 126 of 2004  RD-AH 636 (25 August 2004)
Civil Misc. Writ Petition No.126 of 2004
M/s Shine Travels and Cargo Pvt. Ltd. v. Union of India
Hon'ble R.K.Agrawal, J.
Hon'ble K.N.Ojha, J.
(Delivered by R.K.Agrawal, J.)
By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner, M/s Shine Travels and Cargo Pvt. Ltd., seeks a writ, order or direction in the nature of mandamus directing the Commissioner, Custom & Central Excise, Meerut, respondent no.4 to regularize the temporary licence dated 20th November 2000 issued to the petitioner as Custom House Agent. It further seeks a writ of certiorari quashing the order dated 16th September 2002 passed by the Commissioner, Custom & Central Excise, Meerut, respondent no.4, filed as Annexure 10 to the writ petition and the order dated 31st January 2003 passed by the Chief Commissioner, Custom & Central Excise, Meerut, respondent no.3, filed as Annexure 12 to the writ petition.
Briefly stated, the facts giving rise to the present petition are as follows:-
The petitioner is a private limited company and is engaged in the business of cargo clearance and claims itself to be a member of IATA and FIATA. It has its branches at Mumbai, Kolkata, Chennai, Bangalore, Bhadohi, Kanpur, Panipat and Moradabad. According to the petitioner, it has in its employment more than 300 persons. For getting the goods cleared at the Custom House, it requires a licence, known as, Custom House Agent Licence (hereinafter referred to as "the licence").
It applied for grant of a temporary licence which was issued on 20.11.2000 which was valid for a period of one year. The Custom House work, according to the licence, was to be transacted through one of the following persons, namely:- Sarvasri
(i) Vinay Kumar Mishra;
(ii) Mohan Tiwari;
(iv) Anil Yadav; and
According to the petitioner, in the meeting of the Board of Directors held on 12th July 2001, one Sri Subhash Tomar was inducted as a Director of the company. The induction of Sri Tomar was informed to the respondent no.4 vide letter dated 27th November 2001. It is alleged by the petitioner that Sri Subhash Tomar had already qualified Regulation 9 examination and has been actively engaged in the clearance of the goods at Custom on behalf of the petitioner company. Thus, vide letter dated 24th July 2001, it sought regularization of its temporary licence. Certain information/clarification was sought, which was given by the petitioner. According to the petitioner, it had completed all the formalities for regularization of its temporary licence. Vide order dated 11th April 2002, its request was turned down by the Deputy Commissioner, Custom & Central Excise, NOIDA. However, the validity of the temporary licence was extended upto 19th May 2002. Feeling aggrieved by the order declining to regularize the licence, the petitioner preferred an appeal under Regulation 10(4) of the Custom House Agents Licensing Regulations, 1984 (hereinafter referred to as "the Regulations") before the Chief Commissioner, Custom & Central Excise, Meerut. The Chief Commissioner, Custom & Central Excise, Lucknow advised the petitioner to approach the Commissioner, Custom & Central Excise, NOIDA in the matter. The petitioner made a request for reconsideration of the regularization of temporary licence before the Commissioner, Custom & Central Excise, NOIDA, by letter dated 29th July 2002, which had been rejected vide order dated 16th September 2002. The appeal preferred by the petitioner has been rejected by the Chief Commissioner, Custom & Central Excise, Meerut, vide order dated 31st January 2003. Both the aforesaid orders are under challenge in the present writ petition.
We have heard Sri Shambhoo Chopra, the learned counsel for the petitioner, and Sri H.R.S.Bist, the learned Standing Counsel for the respondents.
The learned counsel for the petitioner submitted that the petitioner had been granted a temporary licence under Regulation 8 and under Regulation 9 the holder of a temporary licence is required to qualify in examination conducted for that purpose. However, in the present case, as one of the Directors, namely, Sri Subhash Tomar, had already qualified in the examination held under Regulation 9, it was entitled for grant of a regular licence under Regulation 10 of the Regulations. According to him, in an another case of M/s Narender Shipping Services Pvt. Ltd., Chennai, on similar facts, the Commissioner, Custom, relying upon an appellate order wherein it has been held that a qualified person from the market can be taken by a temporary licence holder to meet the requirement of Regulation 9 for the purposes of regularization. The temporary licence of M/s Narender Shipping Services Pvt. Ltd. has been regularized by the Commissioner, Custom & Central Excise, Chennai, vide order dated 26th July 2001, a copy of which has been filed as Annexure P11 to the writ petition. He submitted that similar treatment should be given to the petitioner also.
The learned Standing Counsel, however, submitted that under Regulation 9 a person holding a temporary licence is required to appear and qualify in the examination held under Regulation 9 and only thereafter under Regulation 10, it could be granted a regular licence. If a holder of a temporary licence takes a person from outside, who had qualified under regulation 9, the holder of temporary licence would not ipso facto be entitled to grant of a permanent recognition. He referred to Regulation 18 which provides for engagement of a person qualified in the examination referred to in section 9. He also referred to Regulation 20(4) of the Regulations which provided that a person who has worked in a Custom House Agent and passed the examination referred to in sub-regulation (3), may, on his appointment under any other Custom House Agent, with the approval of the Assistant Commissioner of Custom, be exempted from passing the examination again. He, thus, submitted that the induction of Sri Tomar as a Director in the petitioner company, who had qualified in the examination under Regulation, would not entitle the petitioner for regularization of its temporary licence.
Having heard the learned counsel for the parties, we find that an application for grant of licence to act as a Custom House Agent in a Custom Station, is to be made under Regulation 5. Certain conditions as stipulated in Regulation 6 are to be fulfilled. Under Regulation 8, the Commissioner can grant a temporary licence initially for a period of one year. Under Regulation 9, the holder of a temporary licence is required to qualify in examination at the earliest opportunity. Sub-regulations (1), (2) and (5) of Regulation 9, which are relevant for the purpose, are reproduced below:-
"9. Examination of the applicant.
1. The holder of a temporary licence in the case of an individual and the person or persons who will be actually engaged in the work of clearance of goods through customs on behalf of the firm or company holding a temporary licence, as the case may be, shall be required to qualify in examination, at the earliest opportunity. Such person or persons shall be eligible to appear in the examination as soon as a temporary licence is granted and shall be permitted to avail of three chances within a period of 2 years from the date of issue of the temporary licence on payment of prescribed examination fee of (Rs.500/-) for each examination.
2. The examination referred to in sub-regulation (1) shall include a written and oral examination and will be conducted twice every year. Each application would be permitted to avail of a maximum of three chances to qualify in the said examination but all such chances would be availed of within a maximum period of 2 years from the date of grant of temporary licence.
(Explanation: A person who qualifies in the written examination, but fails in the oral test linked to it, shall be treated as having failed in that chance; but he will not be required to appear in the written examination in the subsequent chances.)
..... ..... .....
5. The holders of a regular licence under regulation 10 may authorize one of their employees or partners or directors, to appear for the examination referred to in sub-regulation (1), on behalf of such holders of regular licence in addition to the person of their agency who has passed the examination referred to in sub-regulation (1)."
Regulation 10 provides for the grant of regular licence. It provides that the Commissioner shall grant a regular licence to such holder of a temporary licence, who has qualified in an examination, referred to in Regulation 9. Under sub-regulation (3) of Regulation 10, the Commissioner is empowered to reject an application for grant of a regular licence to act as a Custom House Agent, if the holder of a temporary licence fails to qualify in the examination in terms of Regulation 9 or his performance is not suitable. Regulation 16 provides for giving information if any change in the constitution of any firm or company takes place. Under Regulation 18, a person who has qualified in the examination, referred to in Regulation 9, can engage himself in the work relating to clearance of work of custom on behalf of a firm or a company licensed under Regulation 10 provided that, at any given time, he shall not so engage himself on behalf of more than one such firm or company. Regulation 20 provides for employment of persons. It provides that a licensee may employ one or more persons to assist him in his work as Custom House Agent. However, the appointment is to be made only after obtaining approval of the concerned authority, which shall be subject to the condition that he shall within six months from the date of his appointment, pass an examination conducted by the concerned authority. However, sub-regulation (4) of Regulation 20 empowers the concerned authority to exempt a person who has worked under a Custom House Agent and passed the examination when appointed under any other Custom House Agent, grant exemption from passing the examination again.
Thus, from the scheme of the Regulations, it is clear that a holder of a temporary licence is required to qualify in the examination held under Regulation 9 and only thereafter it is entitled to a regular licence. However, if it has appointed any other person who had already qualified the examination held under Regulation 9, then such a person can be granted exemption from appearing in the examination again by the concerned appropriate authority. It does not exempt the holder of a temporary licence to appear and qualify in the examination under Regulation 9.
The submission of the learned counsel for the petitioner that the purpose of holding examination under Regulation 9 is to make aware about the provisions of the statute and also about the other allied enactments and the purpose would be defeated if inspite of the fact that a duly qualified person is working with a temporary licence holder, the other person under the said temporary licence would be required to qualify in the examination, is not correct. Had it been so, there would not have been any provision, like Regulation 20(3) and (4).
No support can be drawn by the learned counsel for the petitioner on the decision of the Commissioner, Custom, Chennai, in the matter of M/s Narender Shipping Services Pvt. Ltd. as we have already come to the conclusion that engagement of a person who had already qualified Regulation 9 examination, would not entitle a temporary licence holder for being converted its licence into a permanent one. It is well settled that Article 14 of the Constitution of India does not apply to quasi-judicial or judicial orders passed by a Court of law.
The Hon'ble Supreme Court in the case of Chandigarh Administration and another v. Jagjit Singh and another, (1995) 1 SCC 745, has held as follows:-
"8. We are of the opinion that the basis or the principle, if it can be called one, on which the writ petition has been allowed by the High Court is unsustainable in law and indefensible in principle. Since we have come across many such instances, we think it necessary to deal with such pleas at a little length. Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case or another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent-authority has passed an illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law - indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law - but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent-authority to repeat the illegality, the Court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner if it is found that the petitioners' case is similar to the other person's case. But then why examine another person's case in his absence rather than examining the case of the petitioner who is present before the Court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the Court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the order made or action taken in another person's case, which other person is not before the Court nor is his case. In our considered opinion, such a course - barring exceptional situations - would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and the High Courts nor can they be elevated to the level of the precedent, as understood in the judicial world. (What is the position in the case of orders passed by the authorities in exercise of theirs quasi-judicial powers, we express no opinion. That can be dealt with when a proper case arise.)."
The aforesaid decision has been followed subsequently in the case of Yadu Nandan Garg v. State of Rajasthan and others, (1996) 1 SCC 334; Secretary, Jainpur Development Authority, Jaipur v. Daulat Mal Jain and others, (1997) 1 SCC 35; State of Haryana and others v. Ram Kumar Mann, (1997) 3 SCC 321; Style (Dress Land) v. Union Territory, Chandigarh and another, (1999) 7 SCC 89 and CSIR and others v. Dr. Ajay Kumar Jain, (2000) 4 SCC 186. Thus, the submission made by the learned counsel for the petitioner claiming parity is also devoid of any substance.
In view of the foregoing discussion, we do not find any merit in this petition. The writ petition is dismissed. However, in the interest of justice, we direct that the respondent no.4 shall be given an opportunity to the petitioner to get any of its persons mentioned in the temporary licence to appear and qualify in the ensuing examination under Regulation 9 of the Regulations.
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