Indian Kanoon - Search engine for Indian Law

1. For deciding these Writ Petitions the Custom House Agents license Regulations, 1984 is to be considered and interpreted against the Customs House Agents license Regulations, 2004.

2. The case of the Petitioners is that they have been working with Customs House Agents from 1985 onwards. They are holders of 'G' Cards issued by the Customs Department under the 1984 Regulations. This Card was issued to them because they had held an 'H' Card because they had been working with a permanent licensee. After holding a 'G' Card for a period of three years the Petitioners would become eligible for being considered for the issuance of a temporary license under Regulation 8 of the 1984 Regulation. A prerequisite for the grant of a temporary license under Regulation 8 was that as per Regulation 9(5) the holder of a regular license had to authorise such persons to appear in the Examination. Persons who have been successful in the Examinations must further fulfilll all the conditions laid down in Regulation 10 to become entitled for the issuance of a regular license . It is not without cause that the Petitioners have contended that the present regular licenses have succeeded in keeping others out of their trade.

Dated:24 February, 2005 Subject: Invitation of applications for grant of temporary custom House Agents under CHA Licensing Regulations, 1984, C/Reg.

Attention of the trade and all public is invited to Public Notice No. 25/2003 dated 20.06.2003, whereunder applications were invited from the eligible candidates for grant of temporary Custom House Agents licenses under the Custom House Agents Licensing Regulation 1984.

Pursuant to the issuance of the above stated Public Notice, 563 applications were received for grant of temporary Custom House Agents Licenses under Regulation 4 of Custom House Agent Licensing Regulations, 1984.

Whereas, now the Custom House Agent Licensing regulations' 1984 have been rescinded w.e.f. 23.02.2004 and new Custom House Agent Licensing Regulation 2004 have been promulgated w.e.f. 23.2.2004 vide Notification No. 21/2004-CUS(N.T.) dt. 23.02.2004 issued by the Ministry of Finance, Department of Revenue, New Delhi. As the Custom House Agent Licensing Regulations of 2004 notified by the Ministry vide Notification number mentioned supra does not contain any provision for grant of temporary licenses for appointment of custom house agents, it is not possible to process further with regard to 563 applications received under Public Notice No. 25/2003 dt. 20.06.2003.

9. The opening paragraph of the 2004 Regulations reads as follows:

In exercise of the powers conferred by sub-section (2) of section 146 of the Customs Act, 1962 (52 of 1962), and in supersession of the Customs House Agents Licensing Regulations, 1984, except as respect things done or omitted to be done before such supersession, the Central Board of Excise and Customs hereby makes the following regulations, namely:-

10. A reading of this prefatory statement to Regulation 2004 leaves no manner of doubt that any action which had been taken prior thereto would not be rendered nugatory. So far as the Petitioners are concerned they had taken all the steps and cleared all requirements expected of them under the 1984 Regulations. Not only had the Respondent defaulted in taking requisite steps for consideration of fresh applicants for licenses on an annual basis, they have manifested a procedural irregularity in not processing the Petitioners' applications within reasonable time, which on any consideration, ought not to have exceeded ninety days. It is also significant that the Respondent should have carried out an enquiry further, that is, under Regulations 6 and 8 of the old Regulations in order to determine whether successful candidates fulfillled all the concomitants for the grant of licenses under the Regulations. This action has not been taken till date and the only possible and reasonable assumption must be that the Petitioners fulfilll all the requirements stipulated in the 1984 Regulations. Furthermore, in considering whether Wednesbury reasonableness exists, one must also investigate the purpose behind the change in Regulations. The effort was to simplify the grant of licenses as per the Kelkar Committee. In actual effect, it has been seen that only clause (q) of Regulation 8(6) is a fresh inclusion. The present case is not one where Petitioners have become ineligible for the grant of licenses because of changes brought out in the 2004 Regulations. The decision to cancel the invitation for grant of licenses by the Public Notice issued in June, 2003, is therefore, not in consonance with Wednesbury reasonableness.