Calcutta High Court
Afsar Ali Gazi vs Deputy Director General Of Foreign ... on 13 February, 2018
Equivalent citations: AIRONLINE 2018 CAL 269
Author: Arijit Banerjee
Bench: Jyotirmay Bhattacharya, Arijit Banerjee
ORDER SHEET
G.A.NO.3871 OF 2017
WITH
APOT 199 OF 2017
WP NO.383 OF 2017
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
AFSAR ALI GAZI
Versus
DEPUTY DIRECTOR GENERAL OF FOREIGN TRADE & ORS
BEFORE:
The Hon'ble ACTING CHIEF JUSTICE JYOTIRMAY BHATTACHARYA
The Hon'ble JUSTICE ARIJIT BANERJEE
Date : 13th February, 2018.
Appearance:
Mr. Reetobrata Mitra, Advocate
Mr. Sarosij Dasgupta,Advocate
Ms.Sutapa Mitra,Advocate
...for appellant/petitioner.
Ms.Debjani Ray,Advocate.
....for U.O.I.
The Court: We have gone through the Supplementary Affidavit filed
in support of the prayer for condonation of delay of five days in preferring the
appeal. We are satisfied that sufficient grounds have been made out for
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condoning the delay. Accordingly, the delay in preferring the appeal is
condoned.
By consent of the parties, the appeal is treated as on day's list and
the same is taken up for hearing.
The petitioner contends that he is a handling agent. He carries on
business of export/import on behalf of various principals. He challenged an
order of suspension dated March 23, 2017 issued by the Deputy Director
General of Foreign Trade under the Foreign Trade (Development and
Regulation) Act, 1992 by way of filing W.P.No.383 of 2017.
The learned single Judge dismissed the writ application. The learned
Judge observed that a wrong quoting a of section in the impugned suspension
order did not vitiate the order. Further, the writ petitioner could not produce
before the learned Judge, the reply given by him to the show cause notice.
Hence, according to the learned Judge, there was no material before the
learned Judge to demonstrate that the suspension order was perverse.
Accordingly, the learned Judge held that the suspension order did not warrant
interference. Being aggrieved, the writ petitioner is before us, by way of the
instant appeal.
We have heard learned counsel for the parties.
The show cause notice was issued by the authorities to the writ
petitioner on the basis of a criminal investigation that was initiated pursuant
to the First Information Report lodged by one M/s.S.B.Impex. The
appellant/writ petitioner was not named in the said FIR. However, his name
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came up in the course of the investigation and a show cause notice was issued.
He replied to the show cause notice, by way of a letter dated 31st January,
2017. In the suspension order, the issuing authority merely recorded that no
satisfactory explanation against the show cause notice was furnished by the
appellant. There is no reason indicated as to why the explanation of the
appellant was not acceptable to the authority. It was a mere ipse dixit of the
authority. No supporting reason was given. Effectively, it is a non-speaking
order. To exercise the power of suspension under Section 8 of the 1992 Act,
the authority must have "reasons to believe" that a party against whom such
power is being exercised has committed certain acts as contemplated by the
said section. The belief of the authority, therefore, must be supported by
cogent reasons and the same must be disclosed in the suspension order. The
suspension order cannot be supplemented by relying on subsequent
documents.
Further, the appellant has disclosed a letter written by M/s.
S.B.Impex, the defacto complainant who lodged the FIR wherefrom it appears
that M/s.S.B.Impex has no grievance against the appellant and it has received
the entire money relating to the transaction in question from the appellant. In
fact, in the said letter addressed to the Deputy Director General of Foreign
Trade, the said M/s.S.B.Impex has stated that it has no objection against the
appellant and shall be satisfied if the suspension order against him is
withdrawn.
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Be that as it may, on the short ground that the suspension order is
devoid of reasons and a non-speaking one, we set it aside. It is established law
that any judicial/quasi-judicial/administrative order which prejudicially affects
any party or has adverse civil consequences for that party, must be supported
by cogent reasons. This is now accepted as a limb of natural justice.
The writ petitioner has also challenged another order dated 23rd
March, 2017 issued by the Deputy Director General of Foreign Trade whereby
the authorities refused to grant renewal of further license to the appellant. The
said order is also a non-speaking order and does not record as to why the
explanation furnished by the appellant in response to the show cause notice is
not acceptable. For the same reasons, as indicated above, the said order is also
set aside.
The Deputy Director General of Foreign Trade is directed to consider
the application of the appellant for renewal of license and dispose of the
application in accordance with law by passing a reasoned order, after giving an
opportunity of personal hearing to the appellant or his authorized
representative, within four weeks from the date of communication of this order.
We make it clear that this order, however, will not prevent the
respondent authorities from taking any action against the appellant as they
may be entitled to in accordance with law.
Thus, the appeal is allowed.
The appeal and application are disposed of accordingly. 5 Since no affidavit-in-opposition has been called for from the respondents to controvert the allegations made against them, the allegations contained in the stay petition as well as supplementary affidavit, are deemed not to have been admitted by them.
(JYOTIRMAY BHATTACHARYA, ACJ.) (ARIJIT BANERJEE, J.) ssaha AR(CR)