{"id":34444,"date":"2010-10-01T00:00:00","date_gmt":"2010-09-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ravindra-vs-union-on-1-october-2010"},"modified":"2018-08-24T23:02:19","modified_gmt":"2018-08-24T17:32:19","slug":"ravindra-vs-union-on-1-october-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ravindra-vs-union-on-1-october-2010","title":{"rendered":"Ravindra vs Union on 1 October, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Ravindra vs Union on 1 October, 2010<\/div>\n
Author: D.A.Mehta,&Nbsp;Honourable Ms.Justice H.N.Devani,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/6151\/2010\t 64\/ 64\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 6151 of 2010\n \n\nwith\n \n\nCIVIL\nAPPLICATION NO.5891 OF 2010\n \n\nAND\n \n\nSPECIAL\nCIVIL APPLICATION NO.6152 of 2010\n \n\nwith\n \n\nCIVIL\nAPPLICATION NO.5892 OF 2010\n \n\nAND\n \n\nSPECIAL\nCIVIL APPLICATION NOS.6916 TO 6922 OF 2010\n \n\nwith\n \n\nSPECIAL\nCIVIL APPLICATION NOS.7770 to 7772 of 2010\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE D.A.MEHTA  \nHONOURABLE\nMS.JUSTICE H.N.DEVANI\n \n \n=========================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?    \n\t\t\t                                   YES\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?   YES\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?       \n\t\t\t                                      NO\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?                 NO\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?  NO\n\t\t\n\t\n\n \n\n \n=========================================\n\n\n \n\nRAVINDRA\nK JOSHI - Petitioner(s)\n \n\nVersus\n \n\nUNION\nOF INDIA THROUGH UNDER SECRETARY & 2 - Respondent(s)\n \n\n=========================================\n \nAppearance : \nMR\nKS NANAVATI, Sr. Advocate for NANAVATI ASSOCIATES\nfor Petitioner \nMR RM\nCHHAYA for Respondent(s) : 1 -\n3. \n=========================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE D.A.MEHTA\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMS.JUSTICE H.N.DEVANI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 01\/10\/2010 \n\n \n\n \n \nCAV\nJUDGMENT \n<\/pre>\n
(Per
\n: HONOURABLE MS.JUSTICE H.N.DEVANI)<\/p>\n
All
\n\tthese petitions have been filed with the following identically
\n\tworded prayers:\n<\/p>\n
“[A]\t\tYour
\nLordships may be pleased to issue a writ of certiorari or a writ in
\nthe name of certiorari or any other writ, order or direction quashing
\nand setting aside Notification dated 8.4.2010 in so far as it
\npurports to require the petitioner to mandatorily appear in the
\nspecific examination for the purpose of grant of licence;\n<\/p>\n
[B]\t\tYour
\nLordships may be pleased to direct the respondent No.3 to exercise
\nhis power under CHALR 1984 and dispose of the pending applications of
\nthe petitioner for grant of licence;\n<\/p>\n
[C]\t\tThat
\npending the hearing and disposal of the present petition, Your
\nLordships may be pleased to stay the operation and implementation of
\nNotification dated 8.4.2010 and public notice fixing date for
\nexamination dated 22.4.2010;\n<\/p>\n
[D]\t\tAn
\nex-parte ad-interim relief in terms of [C] may kindly be granted;\n<\/p>\n
[E]\t\tSuch
\nother and further reliefs as may be deemed just and proper may kindly
\nbe granted.”\n<\/p>\n
Since
\n\tfacts involved in all these petitions are more or less similar and
\n\tthe same involve common questions of law, all the petitions were
\n\theard together and are disposed of by this common judgement. For the
\n\tsake of convenience, Special Civil Application No.6152 of 2010 is
\n\ttreated as the lead petition and reference is made to the facts as
\n\tappearing in the said petition.\n<\/p>\n
Before
\n\tadverting to the facts of the present case, it may be necessary to
\n\trefer to certain statutory provisions so as to understand the facts
\n\tin proper perspective.\n<\/p>\n
Section
\n\t146 of the Customs Act, 1962 reads thus:\n<\/p>\n
146.
\nCustoms house agents to be licensed.–(1) No person
\nshall carry on business as an agent relating to the entry or
\ndeparture of a conveyance or the import or export of goods at any
\ncustoms station unless such person holds a licence granted in this
\nbehalf in accordance with the regulations.\n<\/p>\n
(2)<\/span><\/p>\n
The Board may make regulations for the purpose of carrying out the
\nprovisions of this section and, in particular, such regulations may
\nprovide for–\n<\/p>\n
(a)
\nthe authority by which a licence may be granted under this section
\nand the period of validity of any such licence;\n<\/p>\n
(b)
\nthe form of the licence and the fees payable therefor;\n<\/p>\n
\t(c)
\nthe qualifications of persons who may apply for a licence and the
\nqualifications of persons to be employed by a licensee to assist him
\nin his work as an agent;\n<\/p>\n
\t(d)
\nthe restrictions and conditions (including the furnishing of security
\nby the licensee) subject to which a licence may be granted;\n<\/p>\n
\t(e)
\nthe circumstances in which a licence may be suspended or revoked; and<\/p>\n
\t(f)
\nthe appeals, if any, against an order of suspension or revocation of
\na licence and the period within which such appeals shall be filed.\n<\/p>\n
\tIn
\n\tthe exercise of powers under clause (c) of sub-section (2) of
\n\tsection 146, the Central Board of Excise and Customs (Board)
\n\toriginally framed Regulations being Customs House Agent Licensing
\n\tRegulations, 1984 (the CHALR, 1984).\n<\/p>\n
The
\n\tRegulations, which are relevant for purpose of the present petition,
\n\tare reproduced hereunder:\n<\/p>\n
“[2(c)]\t“Customs
\nHouse Agent” means a person licensed under these regulations to
\nact as agent for the transaction of any business relating to the
\nentry or departure of conveyances or the import or export of goods at
\nany customs station.\n<\/p>\n
[4]\tInvitation
\nof application: The Commissioner may invite applications
\nfor the grant of such number of licences as assessed by him, to act
\nas Customs House Agents in the month of January every year by means
\nof a notice affixed on the notice board of each Customs Station as
\nwell as through publication in at least two newspapers having
\ncirculation in the area of his jurisdiction specifying therein in the
\nlast date of receipt of application. Such application shall be for
\nclearance work within the jurisdiction of the said Commissioner.\n<\/p>\n
[6]
\nConditions to be fulfilled by the
\napplicant. –  The applicant
\nor the person referred to in clause (b) of sub-regulations (2) and
\n(3) of Regulation 5 as the case may be, shall prove to the
\nsatisfaction of the Commissioner that:\n<\/p>\n
 (a)\u00a0\u00a0
\nthe applicant is a graduate from a recognised University and is an
\nemployee of a licensee and that the possessed a permanent pass in
\nForm G prescribed under regulation 20 and has the experience of work
\nrelating to clearance of goods through the Customs, for a period of
\nnot less than three years in the capacity of such a pass-holder:\u00a0\n<\/p>\n
Provided
\nthat the Commissioner may relax the possession of permanent pass in
\nForm G to one year for reasons to be recorded in writing.\u00a0\n<\/p>\n
(b)\u00a0\u00a0
\nthe applicant has financial viability supported by a certificate
\nissued by a Scheduled Bank or such other proof acceptable to the
\nCommissioner evidencing possession of assets of the value of not less
\nthan Rs.1 lakh in the case of applicants for the grant of licence in
\nrespect of any one of the Customs Stations at Bombay, Calcutta,
\nMadras, Cochin, Kandla, Goa, Mangalore, Tuticorin or Visakhapatnam
\nand not less than Rs.50,000\/- in the case of each of the other
\nCustoms Station, situated at places other than those specified above
\n:\u00a0\n<\/p>\n
\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Provided
\nthat in cases where a Commissioner’s jurisdiction extends to
\nmore than one Customs Station, the Commissioner may issue one licence
\nfor all the Stations or more that
\none such Station to be specified in the licence, waiving the need for
\nseparate compliance of the provisions of clauses (a) and (b) above
\nfor such additional Customs Stations.  The Commissioner may also
\nwaive the need for separate compliance of the requirement of
\nRegulation 11 in such cases:\u00a0\n<\/p>\n
Provided
\nfurther that in places where there is more than one Commissioner
\nexercising jurisdiction over different Customs Stations and Custom
\nHouse Agents licensed under the Custom House Agents Licensing
\nRegulation 8 from the Commissioner, other that the one who has issued
\nthem the existing licence, without being required to comply with the
\nrequirements of Regulation 6 in regard to financial viability or the
\nrequirements as to fresh deposit in terms of Regulation 11.\u00a0\n<\/p>\n
7.\u00a0\u00a0Scrutiny
\nof applications for licence.- \u00a0On
\nreceipt of application under Regulation 5, the Commissioner may make
\nenquiries for verification of the particulars set out in the
\napplication and also such other enquiries as he may deem necessary
\nincluding enquiries about the reliability of financial status of the
\napplicant.\n<\/p>\n
\u00a0\u00a0\u00a0\u00a0\u00a0 <\/p>\n
8.\u00a0\u00a0
\nGrant of temporary licence.-(1)
\nAny applicant whose application is received within the last date
\nspecified in Regulation 4 and who satisfies the requirements of
\nRegulation 5 and 6 , shall be permitted to operate as Custom House
\nAgent at the Customs Station for which the applications made
\ninitially for the period of one year against temporary licence
\ngranted by the Commissioner in this regard in Form B.\u00a0\n<\/p>\n
\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Provided
\nthat when evidence is produced to the Commissioner that the applicant
\nhas already availed of two chances for qualifying in the written or
\noral examination prescribed in these regulations and would like to
\navail of the third chance as soon as the next examination is held in
\nterms of Regulation 9 and that the applicant has been able to account
\nfor the minimum volume of work prescribed for such agents in the
\ncourse of one year’s working, the Commissioner may extend the
\naforesaid period of one year for which the temporary licence has been
\ngranted by another six months or such further
\nperiod not exceeding one year to enable the applicant to avail of the
\nthird chance for qualifying in the examination in terms of Regulation\n<\/p>\n
9.  While granting such extension, the Commissioner of Customs shall
\nsatisfy himself that the requirements of Regulations 10(1) (a) and
\n10(1)(b) had been fully met by the applicant.\u00a0\n<\/p>\n
(2)<\/span><\/p>\n
Any person, whose application for grant of temporary licence under
\nsub-regulation (1) of regulation 8 is rejected by the Commissioner of
\nCustoms may represent to the Chief Commissioner of Customs or Chief
\nCommissioner of Customs and Central Excise, as the case may be
\nagainst such order rejecting the grant of a temporary licence, within
\n30 days of the communication of the impugned order.\u00a0\n<\/p>\n
(3)<\/span><\/p>\n
In case the number of applicants fulfilling the conditions prescribed
\nunder regulation 6 is more than the number of licences to be issued
\nas assessed under regulation 4, the Commissioner may adopt seniority
\nin experience as ‘G’ pass holder of such applicants as
\nthe criterion to give precedence to the applicants:\u00a0\n<\/p>\n
\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Provided
\nthat if more than one applicant has the same period of experience,
\nthe applicant who is older in age shall get precedence.\u00a0\n<\/p>\n
Examination
\n\tof the applicant. –\u00a0(1)
\n\tThe holder of a temporary licence in the case of an individual and
\n\tthe person or persons who will be actually engaged in the work of
\n\tclearance of goods through customs on behalf of the firm or company
\n\tholding a temporary licence, as the case may be, shall be required
\n\tto qualify in examination, at the earliest opportunity.   Such
\n\tperson or persons shall be eligible to appear in the examination as
\n\tsoon as a temporary licence is granted and shall be permitted to
\n\tavail of three chances within a period of 2 years from the date of
\n\tissue of the temporary licence of payment of prescribed examination
\n\tfee of (Rs.500\/-) for each examination.\n<\/p>\n
\u00a0<\/p>\n
(2)<\/span><\/p>\n
The examination referred to in sub-regulation (1) shall include a
\nwritten and oral examination and will be conducted
\ntwice every year.  Each applicant would be permitted to avail of a
\nmaximum of three chances to qualify in the said examination but all
\nsuch chances should be availed of within a maximum period of 2 years
\nfrom the date of grant of temporary licence.\u00a0\n<\/p>\n
(Explanation:\n<\/p>\n
 A person who qualifies in the written examination, but fails in the
\noral test linked to it, shall be treated as having failed in that
\nchance; but he will not be required to appear in the written
\nexamination in the subsequent chances.)\u00a0<\/p>\n
(3)\u00a0
\nThe examination may include questions on the following:-\n<\/p>\n
(a)\u00a0\u00a0
\npreparation of various kinds of bills of entry and shipping bills;\n<\/p>\n
(b)\u00a0arrival
\nentry and clearance of vessels;\n<\/p>\n
(c)
\ntariff classification and rates of duty;\n<\/p>\n
(d)
\ndetermination of value of assessment;\n<\/p>\n
(e)
\nconversion of currency;\n<\/p>\n
(f)
\nnature and description of documents to be filed with various kinds of
\nbills of entry and shipping bills;\n<\/p>\n
(g)
\nprocedure for assessment and payment of duty;\n<\/p>\n
(h)
\nexamination of merchandise at the Customs Stations;\n<\/p>\n
(i)
\nprovisions of the Trade of Merchandise Marks Act, 1958 (43 of 1958);\n<\/p>\n
(j)
\nprohibitions of import and export;\n<\/p>\n
(k)
\nbonding procedure and clearance from band;\n<\/p>\n
(l)
\nre-importation and conditions for free re-entry;\n<\/p>\n
(m)
\ndrawback;\n<\/p>\n
(n)
\noffences under the Act,<\/p>\n
(o)the
\nprovisions of allied Acts including imports and Exports (control)
\nAct, 1947 (18 of 1947), Foreign Exchange Regulation Act, 1973 (46 of
\n1973), Indian Explosives Act, 1884 (4 of 1884), Arms Act, 1959 (54 of
\n1959), Opium Act, 1879 (1 of 1878), Drugs and Cosmetics Act, 1940 (23
\nof 1940), Destructive insects and Pests Act, 1914 (2 of 1914),
\nDangerous Drugs Act, 1930 (2 of 1930) in so far as they are relevant
\ngo the clearance of goods through customs;\n<\/p>\n
(p)
\nprocedure in the matter of refund of duty paid, appeals and revision
\npetitions under the Act.\n<\/p>\n
 4.\u00a0The
\nCommissioner shall also satisfy himself whether the licensee in Form
\nB (See Form 48 in para 5) if he is an individual, possesses, or in
\nthe case of a firm of company, the persons who will be actually
\nengaged in the work relating to clearance of goods through customs on
\nbehalf of that firm or company, possess satisfactory knowledge of
\nEnglish and the local language of the Customs Station:\n<\/p>\n
\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0<\/p>\n
Provided
\nthat in the case of persons deputed to work exclusively in the docks,
\nknowledge of English will not be compulsory.  Knowledge of Hindi will
\nbe considered as a additional or desirable qualification.\u00a0\n<\/p>\n
5.
\nThe holders of a regular licence under regulation 10 may authorise
\none of their employees or partners or directors, to appear for the
\nexamination referred to in sub-regulation (1), on behalf of such
\nholders of regular licence in addition to the person of their agency
\nwho has passed the examination referred to in sub-regulation (1).\u00a0\n<\/p>\n
10.\u00a0\u00a0
\nGrant of regular licence.(1)\u00a0The
\nCommissioner shall, on receipt of an application in Form C (See Form
\nNo.49 in Part 5), grant a regular licence in Form D (See Form 50 in
\nPart 5) on payment of a fee of (Rs.5000\/-) to such holder of a
\ntemporary licence who qualifies in an examination referred to in
\nRegulation 9 and whose performance is found to be satisfactory with
\nreference, inter alia, to the following: –\u00a0\n<\/p>\n
quantity
\n\tor value of cargo cleared by such licensee conforming to norms as
\n\tmay be prescribed by the Commissioner;\n<\/p>\n
absence
\n\tof instances of delay either in the clearance of goods or in the
\n\tcomplaints of misconduct including non-compliance of any of the
\n\tobligations specified in Regulation 14.\n<\/p>\n
 (2)\u00a0The
\nCustoms House Agents who are granted regular licence under Regulation
\n10, shall be eligible to work in all Customs Stations subject to
\nfulfillment of the following requirements:\u00a0\n<\/p>\n
the
\n\tlicensee shall make an application to the Commissioner of the
\n\tconcerned Customs Station where he intends to transact business for
\n\tpurposes of registering himself and his authorised staff;\n<\/p>\n
he
\n\tfulfils the conditions stipulated in clause (b) of Regulation 6
\n\trelating to financial soundness and possesses the ability to provide
\n\tadequate warehousing and transport facilities at the place of
\n\tclearance of goods and production of evidence relating to
\n\tavailability of sufficient clientele at his disposal;\n<\/p>\n
he
\n\tshall also be required to enter into a separate bond in Form D (See
\n\tForm 50 in part 5) for due observation of these regulations and to
\n\tfurnish a separate Bank Guarantee for each Customs Stations as
\n\tstipulated under Regulation 11; (he shall produce evidence of
\n\tknowledge for the local language of the Customs Station, at which he
\n\twished to conduct business;).\n<\/p>\n
On
\n\tfulfilment of the aforesaid conditions, the Commissioner of the
\n\tCustoms Station at which the licensee intends to transact business
\n\tshall grant a licence in Form ‘D’ (See Form No.50 in
\n\tpart 5) authorising him to transact business at that Customs
\n\tStation:\n<\/p>\n
\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0<\/p>\n
Provided
\nthat no separate licence would be required in places where in
\naddition to a Custom House handling imports by sea, there is also an
\ninternational airport to handle imports by air even if under the
\njurisdiction of a different Commissioner.\u00a0\n<\/p>\n
(3)<\/span><\/p>\n
The Commissioner may reject an application for the grant of regular
\nlicence to act as Custom House Agent if the holder of the temporary
\nlicence fails to qualify in the examination in terms of Regulation 9,
\nor the holder of temporary licence on evaluation of his performance
\nin terms of Regulation 10 is not considered suitable due to any other
\nreason to be stated in the order passed by the Commissioner.”\u00a0\n<\/p>\n
Adverting
\n\tto the facts of the case, the petitioner joined a Company, viz., M\/s
\n\tMathurdas Narandas & Sons Forwarders Limited possessing a
\n\tpermanent Customs House Agent Licence in 1988 in Mumbai and later
\n\twas transferred to Ahmedabad and power of attorney was granted in
\n\this favour on 6.6.1995. The petitioner thereafter appeared for the
\n\twritten examination prescribed under Regulation 9 of CHALR, 1984 and
\n\tgot qualified as per Customs Notice No.1\/99 dated 23.6.1999. He
\n\tlater on appeared for the oral examination and got qualified as per
\n\tCustoms Notice No.2\/1999 dated 20.10.1999. Accordingly, the
\n\tpetitioner received certificate of success in the examination held
\n\tunder Regulation 9 of CHALR, 1984. Since the licence was granted in
\n\tthe name of the Company, the petitioner, although being a person who
\n\thad appeared and successfully cleared the examination and the
\n\tcriteria governing grant of licence (and otherwise possessed the
\n\tqualification), was not a licence holder in his individual capacity.
\n\tAs the petitioner had already appeared for the examination and had
\n\talready satisfactorily performed the work as Customs House Agent
\n\tsince 1991 under temporary licence, oral requests were made to the
\n\trespondent No.3 to grant licence to the petitioner however despite
\n\trepeated requests licence was not granted, and the petitioner was
\n\ttold that the request would be considered as and when applications
\n\tare invited by the Commissioner under the Regulations. The
\n\tpetitioner was, therefore, constrained to continue working as a
\n\tdirector as per Board Resolution with F Pass for M\/s Mathurdas
\n\tNarandas & Sons Forwarders Limited as provided for under
\n\tRegulation 20(6) of CHALR, 1984 and could not independently act as a
\n\tCustoms House Agent. Since then the petitioner has been working
\n\tunder the same arrangement and is unable to take up the occupation
\n\tor business of Customs House Agent on his own as there have been no
\n\tinvitations extended by the Commissioner under Regulation 4 of the
\n\tRegulations, 1984.\n<\/p>\n
In
\n\tthe meanwhile vide Notification No.21 of 2004 – Customs (N.T.)
\n\tthe respondent No.2 Board framed fresh Customs House Agent Licensing
\n\tRegulations, 2004 (CHALR, 2004) thereby superseding 1984 Regulation,
\n\texcept in respect of things done or omitted to be done before such
\n\tsupersession. The relevant provisions of the Regulations, 2004 are
\n\treproduced hereunder:\n<\/p>\n
\u20034.
\nInvitation of application. — The Commissioner of
\nCustoms may invite applications for the grant of such number
\nof licences as assessed by him, to act as Customs House Agents in the
\nmonth of January every year by means of a notice affixed on the
\nnotice board of each Customs Station as well as through publication
\nin at least [two newspapers, one in English and the other in
\nvernacular language having wide circulation in the area of his
\njurisdiction,] specifying therein the last date of receipt of
\napplication. Such application shall be for clearance work within the
\njurisdiction of the said Commissioner of Customs.\n<\/p>\n
5.
\nApplication for licence.- (1) An application for a licence
\nto act as a Customs House Agent in a Customs Station shall be made
\n[in the form of letter to the jurisdictional Commissioner of
\nCustoms, containing details as specified in Form A] and shall,
\ninter alia, contain the name and the address of the
\nperson applying; and <\/p>\n
(2)<\/span>
\nIf the applicant is a firm –\n<\/p>\n
(a)
\nthe name and address of every partner of the firm, the firm’s
\nname, and<\/p>\n
(b)
\nthe name of the partner or the duly authorized employee, who will
\nactually be engaged in the clearance of goods or conveyances through
\nthe customs.\n<\/p>\n
If
\nthe applicant is a\u2003(3) company –\n<\/p>\n
(a)
\nthe name of each director, managing director, manager, and <\/p>\n
(b)
\nthe names of director, managing director, manager or the duly
\nauthorized employee, who will actually be engaged in the
\nclearance of goods or conveyances through the customs.\n<\/p>\n
6.
\nConditions to be fulfilled by the applicant. — The
\napplicant referred to in clause (b) of sub-regulations (2) and (3) of
\nregulation 5, as the case may be, or a person who has passed the
\nexamination referred to in regulation 8, shall prove to the
\nsatisfaction of the Commissioner of Customs, that –\n<\/p>\n
(a)
\nthe applicant, or his authorized employee, is a graduate from a
\nrecognized University and possesses a professional degree viz.
\nC.A.\/M.B.A.\/L.L.B.\/Diploma in Customs Clearance work from any
\nInstitute or University recognized by the Government with a working
\nknowledge of computers and customs procedures, or is a graduate
\nhaving at least three years experience in transacting Custom House
\nAgent work as a G-Card holder, or a person who has passed the
\nexamination referred to in regulation 8, or is a retired Group ‘A’
\nofficer from the Indian Customs and Central Excise Service (IC&CES)
\nhaving a minimum of ten years experience in Group ‘A’.\n<\/p>\n
(b)
\nthe applicant has financial viability supported by a certificate
\nissued by a  Scheduled Bank or such other proof acceptable to the
\nCommissioner of Customs evidencing possession of assets of value of
\nnot less than Rs. 2 lakhs;\n<\/p>\n
(c)
\nthe applicant is a citizen of India.\n<\/p>\n
7.
\nScrutiny of application\u2003for licence.\n<\/p>\n
— On receipt of application under regulation 5, the
\nCommissioners of Customs may make inquiries for verification
\nof the particulars set out in the application and also such other
\ninquiry as he may deem necessary, including inquiries about the
\nreliability and financial status of the applicant.\n<\/p>\n
8.
\nExamination of the\u2003applicant. —\n<\/p>\n
(1) Any applicant whose application is received within the last date
\nspecified in the notice or publication, as the case may be, referred
\nto in regulation 4 and who satisfies the requirements of regulations
\n5 and 6, shall be required to appear for the written as well as oral
\nexamination conducted by the Director General of Inspection at
\nspecified centers and specified dates, twice every year, for which
\nintimation shall be sent individually in advance before the date of
\nexamination.\n<\/p>\n
Provided
\nthat an applicant who has already passed the examination referred
\nto in regulation 8 will not be required to appear for any further
\nexamination.\n<\/p>\n
(2)<\/span><\/p>\n
The applicants declared successful in written examination shall be
\ncalled for oral examination.\n<\/p>\n
(3)<\/span><\/p>\n
It shall be necessary for the applicant to clear written as well as
\noral examinations separately. An applicant who clears the written
\nexamination but fails in the oral examination linked to it, shall
\nhave to clear the oral examination within two years of the related
\nwritten examination irrespective of the number of chances, and
\nif he fails do so, he shall be treated as having failed in the
\nexamination.\n<\/p>\n
(4)<\/span><\/p>\n
An applicant shall be allowed a maximum period of seven years within
\nwhich he shall pass both the written and oral examinations. No
\nfurther extension of time shall be granted.\n<\/p>\n
(5)<\/span><\/p>\n
Notwithstanding anything contained in sub-regulation (4), any person
\nwho holds a temporary licence granted under regulation 8 of the
\nCustoms House Agents Licencing Regulations, 1984, shall be allowed to
\npass the examination within a period of two years from the date of
\ncommencement of these regulations.\n<\/p>\n
(6)<\/span><\/p>\n
The examination may include questions on the following :-\n<\/p>\n
(a)\tpreparation
\nof various kinds of bills of entry and shipping bills;\n<\/p>\n
(b)
\n arrival entry and clearance of vessels;\n<\/p>\n
(c)
\ntariff classification and rates of duty;\n<\/p>\n
(d)
\ndetermination of value for assessment;\n<\/p>\n
(e)
\nconversion of currency;\n<\/p>\n
(f)
\nnature and description of documents to be filed with various kinds of
\nbills of entry and shipping bills;\n<\/p>\n
(g)
\nprocedure for assessment and payment of duty;\n<\/p>\n
(h)
\nexamination of merchandise at the Customs Stations;\n<\/p>\n
(i)
\nprovisions of the Trade and Merchandise Marks Act, 1958 (43 of 1958),
\nthe Patents Act, 1970 (39 of 1970) and the Copy Rights Act, 1957 (14
\nof 1957).\n<\/p>\n
(j)
\nprohibitions on import and export;\n<\/p>\n
(k)
\nbonding procedure and clearance from bond;\n<\/p>\n
(l)
\nre-importation and conditions for free re-entry;\n<\/p>\n
(m)
\ndrawback and export promotion schemes;\n<\/p>\n
(n)
\noffences under the Act;\n<\/p>\n
(o)
\nthe provisions of allied Acts including the Foreign Trade
\n(Development and Regulation) Act, 1992 (22 of 1992), the Central
\nExcise Act, 1944 (1 of 1944), Foreign Exchange Management Act, 2000
\n(42 of 1999), the Indian Explosives Act, 1884 (4 of 1884), the Arms
\nAct, 1959 (54 of 1959), the Narcotics Drugs and Psychotropic
\nSubstances Act, the Drugs and Cosmetics Act, 1940 (23 of 1940),
\nDestructive Insects and Pests Act, 1914 (2 of 1914), the Dangerous
\nDrugs Act, 1930 (2 of 1930), in so far as they are relevant to the
\nclearance of goods through customs;\n<\/p>\n
(p)
\nprovisions of the Prevention of Corruption Act, 1988 (49 of 1988);\n<\/p>\n
(p)
\nprocedure in the matter of refund of duty paid, appeals and revision
\npetitions under the Act.\n<\/p>\n
(q)
\non-line filing of electronic shipping bills or bills of entry and
\nIndian Customs and Central Excise Electronic Commerce\/Electronic Data
\ninterchange  Gateway (ICEGATE) and Indian Customs Electronic Data
\nInterchange Systems (ICES).\n<\/p>\n
(7)<\/span><\/p>\n
The Commissioner of\u2003Customs shall also satisfy
\nhimself whether the applicant, if he is an individual, possesses, or
\nin the case of a firm or company, the persons who shall be actually
\nengaged in the work relating to clearance of goods through customs on
\nbehalf of that firm or company, possess satisfactory knowledge of
\nEnglish and the local language of the Customs Station :\n<\/p>\n
Provided
\nthat in the case of persons deputed to work exclusively in the docks,
\nknowledge of English shall not be compulsory. Knowledge of Hindi
\nshall be considered as desirable qualification.\n<\/p>\n
(8)<\/span><\/p>\n
The holders of a\u2003licence under regulation 9 may
\nauthorize any one or more of their employees or partners or directors
\nto appear for the examination referred to in sub-regulation (1) on
\nbehalf of such holders of licence, in addition to the person of their
\nagency who has passed the examination referred to in sub-regulation
\n(1).\n<\/p>\n
9.
\nGrant of\u2003licence. —\n<\/p>\n
(1) The Commissioner of Customs shall on payment of a fee of Rs.
\n5,000\/- grant a licence in Form B to an applicant who has passed the
\nexamination referred to in regulation 8.\n<\/p>\n
(2)<\/span><\/p>\n
The Customs House Agents who are granted licences under
\nsub-regulation (1) shall be eligible to work in all Customs Stations
\nwithin the country subject to intimation in Form C to the
\nCommissioner of Customs of the concerned Customs Station where he
\nintends to transact business. No separate licence shall be required
\nin places where in addition to a Customs House handling imports by
\nsea, there is also an International airport to handle imports by air,
\neven if under the jurisdiction of a different Commissioner of
\nCustoms.\n<\/p>\n
(3)<\/span><\/p>\n
The Commissioner of\u2003Customs may reject an
\napplication for the grant of licence to act as Customs House Agent if
\nthe applicant is [convicted of] fraud or forgery, or any criminal
\nproceedings are pending before any court of law against him or he has
\nbeen convicted in any court of law.\n<\/p>\n
(4)<\/span><\/p>\n
Any applicant aggrieved\u2003by the order of the
\nCommissioner of Customs passed under sub-regulation (3) may
\nappeal to the Chief Commissioner of Customs or Chief Commissioner of
\nCustoms and Central Excise, as the case may be, within a period of
\nthirty days from the communication of such order.\n<\/p>\n
(5)<\/span><\/p>\n
The Chief Commissioner of Customs or the Chief Commissioner of
\nCustoms and Central Excise, as the case may be, may, on his own
\nmotion or otherwise, call for and examine the records of any
\nproceedings in which the Commissioner of Customs has passed the order
\nunder sub-regulation (3) for the purpose of satisfying himself as to
\nthe legality, propriety or correctness of such order and may pass
\nsuch other orders as he may deem fit. No order under this
\nsub-regulation shall be made so as to prejudicially affect any person
\nunless such person is given reasonable opportunity for making a
\nrepresentation and being heard in his defense, if he so desires.\n<\/p>\n
(6)<\/span><\/p>\n
No order shall be made under sub-regulation (5) in relation to an
\norder passed by Commissioner of Customs under sub-regulation (3) or
\nsub-regulation (1), as the case may be, after the expiry of one year
\nfrom the date on which such order was passed by the Commissioner of
\nCustoms.\n<\/p>\n
[(6A.)
\nAn appeal filed by an applicant under sub-regulation (4) shall be
\ndecided by the Chief Commissioner of Customs or the Chief
\nCommissioner of Customs and Central Excise, as the case may be, with
\nin a period of one year from the date on which such appeal is filed.]<\/p>\n
In
\n\tthe new Regulations, most of the regulations are more or less the
\n\tsame; however, the regulation providing for the grant of temporary
\n\tlicence has been removed. One principal similarity in both the
\n\tRegulations is that the process of applying for licence can only be
\n\tinitiated by the Commissioner exercising his powers and discretion
\n\tunder Regulation 4.\n<\/p>\n
Subsequently,
\n\tthe respondent No.1 issued clarification regarding CHALR 2004 vide
\n\tNotification dated 10.6.2004 being No.42\/04. It may be pertinent to
\n\treproduce question 1(b) and the answer thereto in relation to
\n\tRegulation 9:\n<\/p>\n
Regulation
\n9<\/span><\/p>\n
(b)
\n\t\t\t\tCan persons who have qualified the exam under regulation 9 of
\n\t\t\t\tCHALR 1984 be exempted from appearing the exam referred to in
\n\t\t\t\tregulation 8 of CHALR 2004 and be granted licence under
\n\t\t\t\tregulation 9(1) of CHALR 2004 directly?\n<\/p>\n
No.\n<\/p>\n
\t\t\t\tThose who have not been granted licence under CHALR 1984 till
\n\t\t\t\t23.2.2004 lose their right. They have to meet the qualifications
\n\t\t\t\tand pass the examinations under regulation 8 of CHALR 2004<\/p>\n
On
\n\t31st October, 1997 the respondent No.1 issued a Circular
\n\ton the issue of Customs House Agent Licence. It may be pertinent to
\n\trefer to issue No.(ii) thereunder which reads thus:\n<\/p>\n
“[ii]
\nIssue of CHA licenses to applicants who had passed the
\nexaminations under CHALR, 2004:\n<\/p>\n
4.
\nIt has been represented to the Board that some of the
\nCommissionerates have not invited applications for grant of CHA
\nlicenses, since the norms for issue of fresh license are required to
\nbe reviewed by the Board.  Further, in cases where the applicants
\nhaving passed the requisite examination under Regulation 8 of CHALR,
\n2004, have not been granted with a CHA license.  Board had also
\nexamined these issues and decided that irrespective of the norms
\nprescribed by the Board vide F.No.502\/5\/92-Cus-VI dated 18.5.1994
\nunder CHALR, 1984, concerned Commissioners of Customs shall issue CHA
\nlicenses to all those applicants who had passed the Regulation 8
\nexamination conducted under CHALR, 2004, subject to their fulfillment
\nof the requisite conditions as mentioned in CHALR, 2004.  Board
\ndesires that the Commissioners of Customs shall clear up backlog of
\npending requests by various applicants who had qualified as per
\nCHALR, 2004, for issue of licenses which have been held up by various
\nCustoms Commissionerates within a month and send a compliance report
\nto the Board.”\n<\/p>\n
Vide
\n\tapplication dated 26.12.2007, the petitioner applied for grant of
\n\tlicence in the name of Devendra N. Thakker, which is still pending
\n\tand no action has been taken thereon.\n<\/p>\n
Vide
\n\tnotification No.30 of 2010-Customs (N.T.) dated 8.4.2010, the
\n\trespondent No.1 framed the Customs House Agents Licensing
\n\t(Amendment) Regulations, 2010, (hereinafter referred to as the
\n\t(Amendment) Regulations, 2010) retrospectively amending various
\n\tregulations in the CHALR, 2004. Clause No.2 of the amendment
\n\tnotification which amends Regulation 8 of the CHALR, 2004, is
\n\trelevant for the present purpose and reads thus:\n<\/p>\n
“[2]\tIn
\nthe Customs House Agents Licensing Regulations, 2004 (hereinafter
\nreferred to as the said Regulation) –\n<\/p>\n
[i]
\nin regulation 8, <\/p>\n
[a]
\nin sub-regulation (1) for the words “twice every year”,
\nthe words “once every year” shall be substituted.\n<\/p>\n
[b]
\nafter sub-regulation (8), the following shall be inserted, namely:-\n<\/p>\n
“(9)\tNotwithstanding
\nanything contained in these regulations, any person who had passed
\nthe examination conducted in regulation 9 of the Customs House Agents
\nLicensing Regulation, 1984, and has not yet been granted license
\nunder these regulations, upon declaring successful in a written
\nexamination conducted on the following subjects, shall be deemed to
\nhave passed the examination referred to in regulation 8 for the
\npurpose of these regulations.\n<\/p>\n
[a]\tThe
\nPatents Act, 1970 and Indian Copyright Act, 1957;\n<\/p>\n
[b]\tCentral
\nExcise Act, 1944;\n<\/p>\n
[c]\tExport
\npromotion schemes;\n<\/p>\n
[d]\tProcedure
\non appeal and revision petition;\n<\/p>\n
[e]\tPrevention
\nof Corruption Act, 1988;\n<\/p>\n
[f]\tOnline
\nfiling of electronic Customs declarations;\n<\/p>\n
[g]\tNarcotic
\nDrugs and Psychotropic Substances Act, 1985;\n<\/p>\n
[h]\tForeign
\nExchange Management Act, 1999″\n<\/p>\n
Thus,
\n\tRegulation 2 of the (Amendment) Regulations, 2010 introduces a
\n\tmandatory requirement for all successful candidates who had already
\n\tpassed the examination under CHALR, 1984, to again give examinations
\n\tin the subjects stated therein, which were already mentioned in
\n\tCHALR, 2004. The (Amendment) Regulations, therefore, contemplate a
\n\tsituation whereby the candidates successful under Regulation 9 of
\n\tCHALR, 1984, are still required to appear in the examination of
\n\tspecific subjects as specified therein, while candidates successful
\n\tin the exam conducted under CHALR, 2004 as well as the persons who
\n\thad been granted licences under CHALR, 1984 are not required to go
\n\tthrough the same. It is the categorical case of the petitioner that
\n\tin the examinations conducted during the period between the
\n\tintroduction of CHALR, 2004 till the issuance of Notification
\n\tNo.30\/2010 dated 8.4.2010 amending CHALR, 2004 retrospectively, no
\n\tquestions had been asked from the newly introduced subjects in
\n\tCHALR, 2004.\n<\/p>\n
Subsequently
\n\tanother Circular being Circular No.9 of 2010-Custom dated 8.4.2010
\n\tregarding issue of Customs House Agents Licence, came to be issued.
\n\tClause (vi) of the same which is relevant for the present purpose
\n\treads thus:\n<\/p>\n
“(vi)
\nCHA licenses in respect of individuals who had passed the
\nexamination under CHALR, 1984:\n<\/p>\n
8.1.\n<\/p>\n
The issue of granting CHA license in respect of persons who had
\nalready passed the written and oral examinations held under
\nRegulation 9 examination of Customs House Agents Licensing
\nRegulations (CHALR), 1984 and are yet to be considered for issue of
\nCHA license, was examined by the Board. On this issue, the Board in
\nits earlier meeting had held that with the introduction of CHALR,
\n2004, there was no generalized case for grant of CHA licence to such
\napplicants having passed Regulation 9 examination under CHALR, 1984
\nas the requirements of educational qualification and also examination
\ncurriculum were different in the two regulations. Considering the
\nhardships experienced by such persons and in order to remedy the
\nsituation by providing one time opportunity to qualify them for grant
\nof CHA license, It has been decided by the Board to conduct written
\nexamination for these persons on the following additional subjects:\n<\/p>\n
(a) The Patents Act, 1970 and Indian Copy Right Act; 1957 (b) Central
\nExcise Act, 1944 (c) export promotion schemes (d) Procedure on appeal
\nand revision petition (e) Prevention of Corruption Act, 1988 and (f)
\nonline filing of electronic Customs declarations, (g) Narcotic Drugs
\nand Psychotropic Substances Act, 1985 and (h) Foreign Exchange
\nManagement Act, 1999. The aforesaid examination would be conducted by
\nthe Directorate General of Inspection after giving due notice to
\nthese candidates. Accordingly, persons who qualify in the aforesaid
\nexamination shall be deemed to have passed under the
\nRegulation 8 of Customs House Agents Licensing Regulations, 2004, and
\nwould be considered for grant of CHA license in terms of Regulations
\n9 of CHALR, 2004 by the concerned Commissionerate from where they had
\nearlier passed the CHA examination held under CHALR, 1984.\n<\/p>\n
8.2.\n<\/p>\n
Board also took note of the fact that these candidates had passed the
\nCHA examination held under CHALR, 1984 based on the qualification
\nprevailing at that relevant point of time, and that a precedent
\nexisted wherein a dispensation was prescribed vide Boards Circular
\nNo.48\/2000-Customs dated 22.5.2000 for a specific period.\u00a0Accordingly
\nit was also decided by the Board that in case of Regulation 9
\nexamination passed candidates under the CHALR, 1984, the relaxation
\nprovided in respect of educational qualifications vide Boards
\nCircular No. 48\/2000-Customs shall be extended on similar basis.”\u00a0\n<\/p>\n
Thereafter
\n\tthe Commissioner, Custom House, Ahmedabad issued a public notice
\n\tbeing Public Notice No.26\/2010-CUSTOMS dated 4th May,
\n\t2010 declaring examination under the newly introduced mandatory
\n\tsubjects for candidates qualified under regulation 9 of CHALR, 1984
\n\twhich was to be held on 15th July, 2010. Being aggrieved,
\n\tthe petitioners have moved the present petitions seeking the reliefs
\n\tnoted hereinabove.\n<\/p>\n
Mr.\n<\/p>\n
\tK.S. Nanavati, Senior Advocate, learned counsel for the petitioners
\n\tinvited attention to the provisions of section 146 of the Customs
\n\tAct, 1962 (the Act) to point out that  sub-section (2) thereof
\n\tempowers the Board to make regulations for the purpose of carrying
\n\tout the provisions of the said section and that such regulations,
\n\tinteralia, may provide the qualifications of persons who may apply
\n\tfor a licence and the qualifications of persons to be employed by a
\n\tlicensee to assist him in his work as an agent. It was submitted
\n\tthat section 146 of the Act only empowers the Board to make
\n\tregulations to regulate grant of licence in relation to entry or
\n\tdeparture of a conveyance or import or export of goods. Thus, the
\n\tBoard can exercise powers only as provided under clause (a) to (f)
\n\tprovided under sub-section (2) of section 146. The said provision
\n\tdoes not authorise the Board to assume powers to prescribe passing
\n\tof an examination as a condition either for applying for licence or
\n\tarrogate to itself power to hold examinations and determine the
\n\tsubjects. It was, accordingly, contended that to the extent the
\n\tRegulations travel beyond the scope of the power of delegated
\n\tlegislation the same are ultra vires the provisions of section 146
\n\tof the Act. It was further submitted that Regulations 8 and 9 of
\n\tCHALR 2004 insofar as they prohibit a person from working as a
\n\tCustoms House Agent unless he has passed an examination prescribed
\n\tby Regulations 8 and 9 are ultra vires the powers of the Board,
\n\tconferred by section 146 of the Act. Though section 146 of the Act,
\n\tempowers the Board to prescribe the qualifications, the same does
\n\tnot empower the Board to prescribe for qualifying examinations and
\n\tsyllabus for such examinations. In support of his submissions, the
\n\tlearned counsel placed reliance on the decision of the Supreme Court
\n\tin the case of Global Energy Ltd. v. Central Electricity
\n\tRegulatory Commission,<\/a> (2009) 15 SCC 570, for the
\n\tproposition that it is now a well-settled principle of law that the
\n\trule-making power “for carrying out the purpose of the Act”
\n\tis a general delegation. Such a general delegation may not be held
\n\tto be laying down any guidelines. Thus, by reason of such a
\n\tprovision alone, the regulation-making power cannot be exercised so
\n\tas to bring into existence substantive rights or obligations or
\n\tdisabilities which are not contemplated in terms of the provisions
\n\tof the said Act. It was, accordingly, submitted that in the absence
\n\tof any provision in the parent legislation which provides for
\n\tpassing of an examination for obtaining a licence, it cannot be
\n\tintroduced by way of a regulation. Placing reliance on the contents
\n\tof paragraphs 27, 35, 39 and 46 of the above referred decision which
\n\tread thus:\n<\/p>\n
“27.\n<\/p>\n
The power of the regulation-making authority, thus, must
\nbe interpreted keeping in view the provisions of the Act. The Act is
\nsilent as regards conditions for grant of licence. It does not lay
\ndown any pre-qualifications therefor. Provisions for imposition of
\ngeneral conditions of licence or conditions laying down the
\npre-qualifications therefor and\/or the conditions\/qualifications for
\ngrant or revocation of licence, in absence of such a clear provision
\nmay be held to be laying down guidelines by necessary implication
\nproviding for conditions\/qualifications for grant of licence also.\n<\/p>\n
35.
\nIn the event a statute provides for licensing, in a case
\nof this nature, the same must thus be found to satisfy the test of
\nreasonableness. The standard for determining reasonableness of a
\nstatute so as to satisfy the constitutional scheme as adumbrated in
\nArticle 14 of the Constitution of India must receive a higher level
\nof scrutiny than an ordinary statute. Such a higher level of scrutiny
\nis necessary not for the purpose of determining the
\nconstitutionality of the statute alone vis-\u00e0-vis the field of
\nlegislative power as envisaged under Article 245 of the Constitution
\nof India but also having regard to the object and purpose, the
\nstatute seeks to achieve.\n<\/p>\n
39.
\nThe superior courts would ensure that the subordinate
\nlegislation has been framed within the four corners of the Act and is
\notherwise valid. The issue therefore which arises for our
\nconsideration is as to whether the delegation having been made for
\nthe purpose of carrying out the object, could the limitation be
\nimposed for ascertaining as to whether the applicant is fit and
\nproper person and disregarding his creditworthiness. There cannot be
\nany doubt whatsoever that a statute cannot be vague and unreasonable.\n<\/p>\n
46.
\nIt is now a well-settled principle of law that essential
\nlegislative functions cannot be delegated. The delegatee must be
\nfurnished with adequate guidelines so that arbitrariness is eschewed.
\nOn what basis and in particular, keeping in view the possible loss of
\nreputation and consequently the business of an applicant for grant of
\nlicence would suffer, it was obligatory on the part of Parliament to
\nlay down requisite guidelines therefor”.\n<\/p>\n
    it
\nwas submitted that the Customs Act is a fiscal statute which provides
\nfor levy of customs duty on import or export of goods and that the
\nobject and purpose of the Act has nothing to do with the
\nqualification of Customs House Agents. It was accordingly, contended
\nthat the qualification, if any, should find place in the Customs Act
\nitself and that essential legislative function cannot be delegated.
\nIf passing of an examination was a condition precedent for granting a
\nCustoms House Agent licence, the Legislature would have provided for
\nsuch a qualification\/condition for passing an examination and would
\nnot have left the same to the delegate.\n<\/p>\n
Next,
\n\tit was contended that section 146 of the Act does not confer any
\n\tpower on the Board to frame regulations which empower the authority
\n\tto decide the maximum number of Customs House Agents who can be
\n\tgranted licences to work as such, nor give any guidelines as to how
\n\tsuch numbers shall be fixed. The Act also does not authorize the
\n\tBoard to empower the authority to make it a condition that a person,
\n\twho otherwise holds the qualifications or works as Customs House
\n\tAgent, cannot even apply or offer himself for an examination unless
\n\tthe authority (in the present case, the Commissioner of Customs)
\n\tinvites applications. It was, accordingly, submitted that Regulation
\n\t4 is ultra vires section 146 of the Act. It was contended that there
\n\tcannot be any arbitrary ceiling on the number of persons who may be
\n\tallowed to engage in the business of Customs House Agent and that
\n\tsuch a restriction creates a monopoly in favour of a few and keeps
\n\treally meritorious persons from engaging themselves in a profession,
\n\tbusiness or occupation of their choice. The right to enter such
\n\tbusiness also cannot be made dependent on the whims and caprice of
\n\tan officer by leaving to his arbitrary decision whether or not to
\n\tinvite applications from persons interested in working as Customs
\n\tHouse Agents or arbitrarily fixing the ceiling on the maximum number
\n\tof Customs House Agents that may be issued licenses. It was
\n\tsubmitted that arbitrariness of the regulations is amply clear from
\n\tthe fact that, in the Ahmedabad region, after 1996, the concerned
\n\tCommissioner has not invited any applications and persons like the
\n\tpetitioners, having passed the examination in the year 1999 etc. and
\n\thaving requested the Jurisdictional Commissioner of Customs to grant
\n\ta licence, have still not been able to obtain licences and with a
\n\tchange in the regulations are now being compelled to appear in the
\n\texaminations for the newly added subjects. It was submitted that it
\n\tis only on account of the failure on the part of the respondents to
\n\tinvite applications that despite having passed the examination under
\n\tRegulation 9 of CHALR 1984 and having been working with regular
\n\tlicence holding companies\/firms, etc., the petitioners are now being
\n\tcompelled to appear in a fresh examination for newly added subjects.
\n\tThat the action of the respondents is clearly arbitrary and
\n\tunreasonable and therefore, violative of Article 14 of the
\n\tConstitution of India. It was urged that the petitioners belong to a
\n\tclass of persons who had appeared in the examination and have been
\n\tworking as Customs House Agents in various capacities. To require
\n\tsuch persons to again appear in the examination after several years
\n\tof experience when a Customs House Agent holding a regular licence
\n\tis not required to do so, is clearly discriminatory as the same
\n\ttreats equals as unequals. The learned counsel further submitted
\n\tthat the (Amendment) Regulations, 2010 seek to create inequality
\n\tbetween the successful candidates  under CHALR, 1984 and candidates
\n\tappearing under CHALR, 2004 by making it mandatory for the
\n\tsuccessful candidates under CHALR, 1984 to appear for the
\n\texamination on subjects as mentioned in the (Amendment) Regulations,
\n\t2010 while those candidates who have appeared for the examination
\n\tunder CHALR, 2004 have never been asked questions pertaining to such
\n\tsubjects as is evident from the examination papers annexed to the
\n\tpetition.\n<\/p>\n
Next,
\n\tit was contended that vide its preamble, CHALR, 2004, while
\n\tsuperseding CHALR, 1984, clearly saves things done or omitted to be
\n\tdone under CHALR, 1984. That despite the clear declaration in its
\n\tpreamble, the CHALR, 2004 read with the (Amendment) Regulations
\n\t2010, clearly imply that the successful candidates under Regulation
\n\t9 examination of CHALR, 1984 would lose their right to apply for a
\n\tlicence unless they pass the specific examination as contemplated
\n\tunder the (Amendment) Regulations, 2010.  It was submitted that it
\n\tis only after the success in the examination that the Commissioner
\n\tscrutinizes the result as well as the candidate to decide whether
\n\tthe candidate deserves the licence or not. As per the saving clause,
\n\tall acts which have been done or are left to be done are saved
\n\tdespite the supersession. This clearly implies that once the
\n\tcandidates are successful in the examination under Regulation 9 of
\n\tCHALR, 1984, the process of scrutiny of the candidate for the
\n\tissuance of a licence has already begun and can only culminate into
\n\tthe Commissioner either granting a licence or refusing to grant a
\n\tlicence. The candidate, as contemplated under the preamble, is not
\n\trequired to reappear in a separate specific examination to reinstate
\n\tthe right at the stage at which it was already pending and had
\n\tcrystallized under CHALR, 1984, as by virtue of the preamble the
\n\tcrystallized right was already saved.\n<\/p>\n
It
\n\twas further submitted that despite having the ability to satisfy
\n\teach and every criteria and condition as required of them under the
\n\tRegulations, that of financial status, experience, proficiency,
\n\treliability and success in examination, the petitioners, by virtue
\n\tof the provisions of CHALR 2004 as amended vide the (Amendment)
\n\tRegulations, 2010, become ineligible for a licence till clearance of
\n\tthe examination as contemplated in the (Amendment) Regulations, 2010
\n\twhich illegally seeks to take away the pre-existing right bestowed
\n\tunder CHALR, 1984, which the petitioners had acquired. It was
\n\tpointed out that although the petitioners are required to appear in
\n\ta separate examination under the (Amendment) Regulations, 2010, the
\n\tpetitioners have been granted an identity card under Form “F”
\n\tas per CHALR, 2004, whereas during the regime of the CHALR, 1984,
\n\tthe equivalent corresponding identity card would be issued in Form
\n\t“I”.   Procedurally, the I.D. Cards are issued after
\n\tgrant of licence, while in the present case, the petitioners have
\n\tbeen treated at par with the successful candidates of examination
\n\tconducted under CHALR, 2004<\/p>\n
Reliance
\n\twas placed upon the decision of the Supreme Court in the case of B.
\n\tP. Sharma v. Union of India, AIR<\/a> 2003 SC 3863, and more
\n\tparticularly to paragraph 15 thereof to submit that there must be a
\n\tdirect and proximate nexus or a reasonable connection between the
\n\trestriction imposed by the Regulations and the object sought to be
\n\tachieved. It was submitted that the (Amendment) Regulations, 2010
\n\tread with Regulation 8 of the CHALR, 2004 insofar as the same
\n\trequire the petitioners and other similarly situated persons who
\n\thave passed Regulation 9 examination and have been doing the work of
\n\tCustoms House Agents in different capacities, to pass the
\n\texamination in the additional subjects introduced for the first time
\n\tby the 2004 Regulations as a condition of being considered for grant
\n\tof regular licence under Regulation 9 is violative of Article 14 of
\n\tthe Constitution. It was submitted that a large number of persons
\n\tsimilarly situated to the petitioners have been granted regular
\n\tlicences in other Collectorates.\n<\/p>\n
Referring
\n\tto the decision of the Supreme Court in the case of Chandrakant
\n\tKrishnarao Pradhan and another v. Jasjit Singh, the Collector of
\n\tCustoms, Bombay, AIR 1962 SC 204, and more particularly to
\n\tparagraph 3 thereof it was pointed out that when section 202 of the
\n\tSea Customs Act, 1878 came to be amended by the Sea Customs
\n\t(Amendment) Act, 1955, the original licences, whether permanent or
\n\ttemporary, became ineffective after the date specified by the
\n\tCentral Government. It became necessary for all persons to apply for
\n\tlicences granted in accordance with the Rules framed under
\n\tsub-section (2) of the amended section 202. It was submitted that
\n\tsimilarly all persons qualified under CHALR, 1984 ought to have been
\n\tgiven equal treatment whereas in the facts of the present case the
\n\tpersons who have passed the examination held under regulation 9 of
\n\tCHALR, 1984 and have been granted licence are not required to pass
\n\tthe examination held under Regulation 8 of CHALR 2004 read with the
\n\timpugned (Amendment) Regulations, 2010 to continue to work as
\n\tCustoms House Agents or for renewal of their licences. The
\n\tpetitioners who have also passed the Regulation 9 examination and
\n\tare working as Customs House Agents as authorised representatives of
\n\tlicensed Customs House Agents and licensed Customs House Agents fall
\n\tin the same class. Thus the classification made and differential
\n\ttreatment meted out to the petitioners is therefore, violative of
\n\tArticle 14 and impose an unreasonable restriction on the fundamental
\n\trights of the petitioners under article 19(1)(g) of the
\n\tConstitution.\n<\/p>\n
It
\n\twas, accordingly, submitted that despite the fact that the
\n\tpetitioners are similarly situated to those persons who had acquired
\n\tlicenses under CHALR 1984, merely because of failure on the part of
\n\tthe concerned Commissioner to invite applications before the coming
\n\tinto force of CHALR, 2004, the petitioners are now sought to be
\n\tdiscriminated against and are required to appear in an examination
\n\tfor additional subjects after having already cleared the qualifying
\n\texamination several years ago. It was urged that considering the
\n\tfact that even for the examination held under CHALR 2004, no
\n\tquestion had been asked from the newly added subjects, it is
\n\tapparent that the petitioners are sought to be discriminated against
\n\teven in relation to the candidates who have so far appeared and
\n\tcleared the examination under regulation 9 of CHALR 2004. It was
\n\tsubmitted that, in the circumstances, the action of the respondents
\n\tin requiring the petitioners to appear in the examination for
\n\tadditional subjects after such a length of time is irrational,
\n\tdiscriminatory and arbitrary, and as such, requires to be quashed
\n\tand set aside as being violative of the petitioners’ fundamental
\n\trights under Article 14 of the Constitution of India.\n<\/p>\n
Learned
\n\tcounsel for the petitioners further submitted that the petitioners
\n\thaving passed the Regulation 9 examination under CHALR, 1984 have an
\n\taccrued right to consideration of their application for grant of
\n\tlicence in the light of the eligibility criteria laid down in CHALR,
\n\t1984 both on the principle of legitimate expectation and also on the
\n\tground that the said right which has already accrued in their favour
\n\tis not affected by coming into force of CHALR, 2004. It was,
\n\taccordingly, urged that the (Amendment) Regulations, 2010 to the
\n\textent the same purport to affect the accrued right of the
\n\tpetitioners is violative of Articles 14 and 19(1)(g) of the
\n\tConstitution of India being discriminatory and being an unreasonable
\n\trestriction on the fundamental rights of the petitioners.\n<\/p>\n
The
\n\tpetitions were vehemently opposed by Mr. R. M. Chhaya, learned
\n\tSenior Standing Counsel for the respondents.  Referring to the
\n\taffidavit in reply filed on behalf of the respondents, it was
\n\tsubmitted that CHALR 2004 came to be framed pursuant to the
\n\trecommendations made by the Kelkar Committee which was considered by
\n\tthe Board in the public interest. It was pointed out that the
\n\tCommittee had recommended that there should be review of the
\n\ttechnical qualifications of the Customs House Agents to include
\n\tknowledge of computer, Prevention of Corruption Act, etc.  It is in
\n\tthese set of circumstances that in the new regulations, various new
\n\tsubjects have been introduced in the light of the recommendation
\n\tmade by the Kelkar Committee. Reliance was placed upon a decision of
\n\tthe Madras High Court in Writ Appeal No.498 and 1125 of 2009 and
\n\tother writ petitions, wherein it had been held that candidates
\n\thaving passed examinations under Regulation 9 of the CHALR 1984,
\n\tpresently seeking Customs House Agents licences cannot be treated to
\n\thave passed the examinations under CHALR, 2004 unless they have
\n\tactually passed the examination prescribed under CHALR, 2004. It was
\n\tpointed out that based upon the decision of the Madras High Court,
\n\tthe Board decided to conduct written examination for those persons
\n\twho had passed the Regulation 9 Examination under the earlier
\n\tRegulations, that is, CHALR 1984 in respect of the following
\n\tadditional subjects:\n<\/p>\n
(a)
\nThe Patent Act, 1970 and Indian Copyright Act, 1957;\n<\/p>\n
(b)
\nCentral Excise Act, 1944;\n<\/p>\n
(c)
\nExport promotion schemes;\n<\/p>\n
(d)Procedure
\non appeal and revision petition;\n<\/p>\n
(e)
\nPrevention of Corruption Act, 1988;\n<\/p>\n
(f)
\nOnline filing of electronic Customs declarations;\n<\/p>\n
(g)
\nNarcotic Drugs and Psychotropic Substances Act, 1985;\n<\/p>\n
(h)
\nForeign Exchange Management Act, 1999″\n<\/p>\n
It
\n\twas pointed out that the said subjects are covered under the
\n\tsyllabus prescribed for examination under regulation 8 of CHALR,
\n\t2004 and were not covered in the syllabus prescribed for examination
\n\tunder regulation 9 of CHALR, 1984. Thus, the decision of the Board
\n\tto conduct written examination for persons, who had passed the Rule
\n\t9 examination under earlier regulations, that is, CHALR 1984, on the
\n\tsaid additional subjects, is based upon the need to ensure the same
\n\tcompetence and knowledge levels amongst successful applicants under
\n\tboth CHALRs.  The examination would be conducted by the Directorate
\n\tGeneral of Inspection after giving due notice to these candidates.
\n\tAccordingly, persons who qualify in the aforesaid examination shall
\n\tbe deemed to have passed under the Regulation 8 of the Customs House
\n\tAgents Licensing Regulations, 2004, and would be considered for
\n\tgrant of Customs House Agent licence in terms of Regulation 9 of
\n\tCHALR, 2004 by the concerned Commissionerate from where they had
\n\tearlier passed the CHA examination held under CHALR, 1984.\n<\/p>\n
Next
\n\tit was submitted that the task of inviting applications has been
\n\tleft to the wisdom of the individual Commissioner of Customs, who in
\n\tturn decides the interval or duration of the period in the matter of
\n\tinviting applications based on the necessity and nature of work in
\n\teach Customs House.  It was further submitted that a candidate
\n\ttaking the Customs House Agent examination is expected to have a
\n\tcertain minimum knowledge of laws and issues which he might
\n\tencounter in the course of his work and can be reasonably expected
\n\tto have awareness of the same. Therefore, it is essential for the
\n\tcandidates successful in the regulation 9 examinations under the
\n\tCHALR, 1984 to undertake separate written examination specifically
\n\ton the subjects mentioned therein for the purpose of granting
\n\tlicence. It was contended that the Director of a Company holding a
\n\tregular CHA licence as an authorized person of a company and an
\n\tindividual who had cleared the Regulation 9 examination but is yet
\n\tto get a licence, are two different classes of persons, altogether.
\n\tThey cannot be equated with each other and are unequal to begin
\n\twith.\n<\/p>\n
As
\n\tregards the contention raised on behalf of the petitioners that the
\n\tscope of the regulations gets limited to those mentioned in
\n\tsub-paragraphs (a) to (f) of section 146(2) of the Act, it was
\n\tsubmitted that the word used in sub-section (2) is “may”
\n\twhich makes it amply clear that the scope of such regulations do not
\n\tget limited to those mentioned in clauses (a) to (f) enumerated
\n\tthereunder. That section 146(2)(d) of the Act clearly lays down that
\n\tthe Board may make regulations which may provide for the
\n\trestrictions and conditions subject to which a licence may be
\n\tgranted. That the Board, in exercise of the said power, has
\n\tprescribed the restriction on the number of licences for which
\n\tCommissioner of Customs may invite applications as per his
\n\tassessment of the requirement under Regulation 4. Further, the
\n\tpassing of examination under CHALR 1984 and satisfying the
\n\trequirements of Regulations 5 and 6 of the CHALR, 2004, would not
\n\tipso facto entitle a person to grant of a licence and the
\n\tregulations provide for a condition that such persons can apply for
\n\ta licence only when applications for licences have been invited by
\n\tthe Commissioner of Customs vide regulation 4. It was submitted
\n\tthat, thus, the above restrictions and conditions are not ultra
\n\tvires section 146 of the Act.\n<\/p>\n
Next
\n\tit was submitted that the provisions contained in Regulation 4 of
\n\tCHALR, 1984 as well as Regulation 4 of CHALR, 2004, vest discretion
\n\tin the Commissioner of Customs to invite applications for grant of
\n\tsuch number of Customs House Agent licences as assessed by him, to
\n\tact as Customs House Agent. The petitioners are not being denied the
\n\tright to engage themselves in a profession, occupation, vocation,
\n\ttrade or business of their choice.  However, a reasonable
\n\trestriction in the form of qualification in certain additional
\n\tsubjects that are extremely relevant to customs clearance work and
\n\twhich does have a rational nexus with the nature of business or
\n\toccupation, has been prescribed. Lack of knowledge of basics of the
\n\tadditional prescribed subjects in the changed global economic
\n\tscenario, viz., The Patents Act, 1970, Indian Copyright Act, 1957,
\n\tNarcotic Drugs and Psychotropic Substances Act, could lead to
\n\texport\/import of certain goods that are against the public interest.
\n\tThat all applicants who have undertaken examination under CHALR,
\n\t2004 are required to possess knowledge of the said additional
\n\tsubjects, as the said subjects were already covered by the
\n\tprescribed syllabus. Thus, the requirement laid down for the
\n\tpetitioners to appear in the additional subjects examination cannot
\n\tin any manner be said to be an unreasonable restriction so as to
\n\tviolate the rights of the petitioners under Article 14 of the
\n\tConstitution of India.  It was submitted that Article 14 of the
\n\tConstitution can be invoked qua equals and that a number of
\n\tcandidates had appeared in the Regulation 9 examination under CHALR,
\n\t1984 conducted by the Customs Commissionerate, Ahmedabad during the
\n\tperiod from 1999 to 2003 and were declared successful. However, none
\n\tof them have been granted licences to act as Customs House Agents.
\n\tThus, the petitioners have been given equal treatment with all the
\n\tcandidates, who are on the same pedestal, as none of the candidates
\n\thave been granted a licence.\n<\/p>\n
It
\n\twas contended that if an applicant is appearing in the examination
\n\tas a proprietor, then he is intending to possess a licence in his
\n\town name and not in the name of partnership firm or a company. The
\n\tDirector of a Company, holding a regular CHA license as an
\n\tauthorized person of the company and an individual, who had cleared
\n\tthe regulation 9 examination but is yet to get a licence, are
\n\taltogether two different classes of persons. They cannot be equated
\n\twith each other and are unequal to begin with. Thus, the contention
\n\tof the petitioners that equals have been treated as unequal, is
\n\tincorrect and without any basis whatsoever. It was submitted that
\n\tCHALR, 2004 do not provide for any restrictions on the number of the
\n\tCustoms House Agents.  That the Board is of the view that, ideally,
\n\tno restriction should be placed on the number of Customs House
\n\tAgents operating in the Customs Houses and the market forces should
\n\tgovern the number of proficient and qualified persons required to
\n\tcarry out the job of Customs House Agents commensurate with the
\n\tvolume of import \/ export cargo.  The Board also has not found any
\n\tjustification in prescribing a turnover based criteria for
\n\tascertainment of the number of Customs House Agent licences required
\n\tto be issued at a particular Custom House\/Station, inasmuch as the
\n\tpractice of undertaking Customs House Agent services on the basis of
\n\tForm “C” intimation is already in vogue and would render
\n\tsuch exercise meaningless. The Board, therefore, has decided against
\n\tfixing a numeric criterion governing the number of Customs House
\n\tAgent licenses being issued.  Hence, there is no ceiling on the
\n\tmaximum number of Customs House Agents that can be licensed in terms
\n\tof the Regulations or the instructions issued by the Board, which
\n\thas been clarified vide paragraph 3 of Circular No.09\/2010 dated
\n\t8.4.2010.\n<\/p>\n
It
\n\twas further submitted that once the Board has vide CHALR, 2004,
\n\tchanged the eligibility criteria, by including additional subjects
\n\tin the syllabus, and the same is given effect to taking note of the
\n\tpresent day intricacies of law, which the Customs House Agents are
\n\tbound to have knowledge; the natural corollary of this would be to
\n\task the Regulation 9 passed candidates (of CHALR 1984) to get
\n\tacquainted with the additional laws and qualify for the same.  That
\n\tthe Notification No.30\/2010-Customs (NT) seeks to do the same and
\n\tthe rationale behind issuance of the said notification is to seek
\n\tequality in the competence and knowledge level of candidates who
\n\thave passed the Regulation 8 examination under CHALR 2004 with that
\n\tof those who passed regulation 9 examination under CHALR 1984.  It
\n\twas further contended that regulation 8 lays down that, “The
\n\tExamination may include questions on the following”.
\n\tThus, it is not mandatory that in all question papers, questions
\n\tfrom all topics covered in the syllabus must be asked.  It was
\n\tcontended that there was no pre-existing right which has been taken
\n\taway by CHALR, 2004 from the petitioners, because, no such
\n\tpre-existing right existed in the first place. It was submitted that
\n\tthe said issue is directly covered by the judgement dated 15.4.2009
\n\trendered by the Madras High Court in the case of Isak Ebinesar
\n\tv. Chairman, CBEC.  It was submitted that the Form “F”
\n\tcard is given to the applicant who has given the examination and
\n\tpassed the written and oral examination and is employed by Customs
\n\tHouse Agent. The Form “F” does not confer upon the
\n\tpetitioner the right to grant of licence under the Regulations.\n<\/p>\n
Reliance
\n\twas placed upon the decision of the Supreme Court in the case of
\n\tD.V. Bakshi v. Union of India,<\/a> (1993) 3 SCC 663
\n\twherein questions relating to interpretation of Regulations 8 and 9
\n\tof the Customs House Agents Licensing Regulations, 1984 had been
\n\traised. However, the said decision pertains to interpretation of the
\n\tsaid regulations and is not relevant to facts of the present case.
\n\tReliance was also placed upon the decision of the Supreme Court in
\n\tthe case of Federation of Customs House Agents’
\n\tAssociation and others v. Union of India  and others<\/a>, (1996)
\n\t10 SCC 136 wherein the validity of Regulation 8 of the Customs House
\n\tAgents Licensing Regulations, 1984 had been called in question on
\n\tthe ground that it provided for the grant of temporary licence
\n\tbefore the applicant qualified at the prescribed examination and
\n\tenables the holder of such temporary licence to work on a par with
\n\tthe regular licensees who had got the licence after passing the
\n\trequisite examination. The issue involved in the said case, has no
\n\trelevance to the controversy in issue in the present case, hence the
\n\tsaid decision does not come to the aid of the respondents in any
\n\tmanner. Reliance was placed upon the decision of the Supreme Court
\n\tin the case of Union of India  v. International Trading Co.
\n\tand<\/a> another, (2003) 5 SCC 437 for the proposition that the
\n\tdoctrines of promissory estoppel and legitimate expectation cannot
\n\tcome in the way of public interest. Public interest has to prevail
\n\tover private interest.\n<\/p>\n
Reliance
\n\twas placed upon the decision of the Maharashtra State Board of
\n\tSecondary and Higher Secondary Education v. Paritosh Bhupeshkumar
\n\tSheth,<\/a> (1984) 4 SCC 27, for the proposition that it is a
\n\tcommon legislative practice that the Legislature may choose to lay
\n\tdown only the general policy and leave it to the delegate to make
\n\tdetailed provisions for carrying into effect the said policy and
\n\teffectuate the purposes of the statute by framing rules\/regulations
\n\twhich are in the nature of subordinate legislation. It was
\n\taccordingly, submitted that section 146 of the Act lays down a
\n\tgeneral policy and it is left to the delegate to  make detailed
\n\tprovisions for carrying it into effect to effectuate the purpose of
\n\tthe statute. Accordingly, the Board has framed regulations making
\n\tprovision for passing of an examination as per the syllabus
\n\tprescribed by the Board to give effect to the provisions of section
\n\t146 of the Act. That as such, the Board has not transgressed the
\n\tscope of the powers delegated to it and the Regulations as framed
\n\tare well within the bounds of the powers delegated to the Board and
\n\tdo not call for any interference.\n<\/p>\n
In
\n\tconclusion, it was submitted that similarly situated persons to the
\n\tpetitioners had not been given differential treatment under the
\n\tCHALR 2004 or under the Notification No.30\/2010 dated 8.4.2010, and
\n\tas such, there is no violation of any of the fundamental rights of
\n\tthe petitioners including the rights guaranteed under the provisions
\n\tof Article 19(1)(g) or Article 14 of the Constitution. That, the
\n\tpetitions being devoid of merit, deserve to be rejected.\n<\/p>\n
In
\n\trejoinder, Mr. K. S. Nanavati, learned Senior Advocate submitted
\n\tthat the decision of the Madras High Court has been rendered in a
\n\tdifferent set of facts and would not be applicable to the facts of
\n\tthe present case. That the Madras High Court has directed the Board
\n\tto examine the issue and to come up with a Scheme for extending to
\n\tthe petitioners therein the same benefits as conferred upon
\n\tsimilarly placed persons in Delhi, Punjab & Haryana, and in the
\n\tcase of their failure, the Central Government should take
\n\tappropriate steps under section 161 of the Customs Act.  That even
\n\twhile rejecting the petition of the petitioners therein, the Court
\n\twas sensitive to the plight of the petitioners therein, and had
\n\tdirected the CBEC to examine the issue and come up with a scheme for
\n\textending to the petitioners therein the same benefits as conferred
\n\ton similarly situated persons in certain other States.  Attention
\n\twas invited to the additional affidavit made by the petitioner of
\n\tSpecial Civil Application No.6152 of 2010, wherein it had been
\n\tpointed out that he had come across two entities in Jamnagar, who
\n\tdespite being similarly situated, have been granted licence by the
\n\tCommissioner after the new regulations, that is, CHALR, 2004, came
\n\tinto force. That these two entities had cleared Regulation 9
\n\texamination under CHALR, 1984 and regular licences were not issued
\n\tto them during that regime.  As per the information of the
\n\tpetitioner, the two entities were given licenses after CHALR, 2004
\n\tcame into force while he as well as other similarly situated persons
\n\twere sought to be denied the same right.\n<\/p>\n
Having
\n\tregard to the facts and circumstances of the case as well as the
\n\trival contentions advanced on behalf of the respective parties, the
\n\tCourt is of the view that it is possible to decide these petitions
\n\twithout entering into larger controversy as to whether the Board is
\n\tempowered to prescribe for a qualifying examination for the grant of
\n\tCustoms House Agent’s license, hence, the contentions raised in this
\n\tregard are not dealt with, leaving it open to the parties to agitate
\n\tthe said issue in an appropriate case, if so required.\n<\/p>\n
The
\n\tcontroversy involved in the present case is, therefore, as to
\n\twhether the action of the respondents in requiring the petitioners
\n\tto appear in the additional subjects prescribed under CHALR, 2004 is
\n\tarbitrary and discriminatory and as such, is violative of the
\n\tpetitioners’ fundamental rights under Article 14 of the Constitution
\n\tof India.\n<\/p>\n
On
\n\ta perusal of the provisions of CHALR, 1984, it is apparent that the
\n\tsame provide for the Commissioner to invite applications for grant
\n\tof such number of licences as assessed by him to act as Customs
\n\tHouse Agent in the month of January every year in the area of his
\n\tjurisdiction for clearance work within the jurisdiction of the said
\n\tCommissioner. Regulation 5 of the said Regulations provides for
\n\tapplication for a licence to act as a Customs House Agent in a
\n\tcustoms station. Regulation 6 provides for the conditions to be
\n\tfulfilled by the applicant. Regulation 7 provides for scrutiny of
\n\tapplications for licence received under Regulation 5 by the
\n\tCommissioner, and provides for making all inquiries for verification
\n\tof the particulars set out in the application as well as such other
\n\tinquiries as the Commissioner may deem necessary, including the
\n\tinquiries about the reliability and financial status of the
\n\tapplicant. Regulation 8 makes provision for grant of temporary
\n\tlicence. Under the said provision, the applicant whose application
\n\tis received within the last date specified in Regulation 4 and who
\n\tsatisfies the requirements of Regulations 5 and 6, shall be
\n\tpermitted to operate as Custom House Agent at the Customs station
\n\tfor which the application is made, initially for a period of one
\n\tyear and for such extended period in terms of the provisions of the
\n\tsaid regulation. Regulation 9 makes provision for examination of the
\n\tapplicant, and provides that the holder of a temporary licence in
\n\tthe case of an individual and the person or persons who will be
\n\tactually engaged in the work of clearance of goods through customs
\n\ton behalf of the firm or company holding a temporary licence, as the
\n\tcase may be, shall be required to qualify in examination at the
\n\tearliest opportunity. Such person or persons shall be eligible to
\n\tappear in the examination as soon as a temporary licence is granted
\n\tand shall be permitted to avail of three chances within a period of
\n\t2 years from the date of issue of the temporary licence on payment
\n\tof prescribed examination fee for each examination. Regulation 9
\n\talso provides for the subjects in which the applicants are required
\n\tto clear the examination. Regulation 10 makes provision for grant of
\n\tregular licence to such holder of a temporary licence who qualifies
\n\tin an examination referred to in Regulation 9 and whose performance,
\n\tis found to be satisfactory with reference to the conditions
\n\tenumerated thereunder. Thus, under the Scheme of CHALR, 1984
\n\tinitially upon receipt of an application to act as Customs House
\n\tAgent, provision was made for grant of a temporary licence upon
\n\tsatisfaction of the requirements of Regulations 5 and 6, and a
\n\tholder of a temporary licence was required to appear in the
\n\texamination prescribed under Regulation 9 within the period
\n\tprescribed thereunder.  A holder of a temporary licence, who
\n\tqualified in an examination referred to in Regulation 9 and whose
\n\tperformance was found to be satisfactory with reference to the
\n\tconditions stipulated in Regulation 10, could be granted a regular
\n\tlicence in Form “D” by the Commissioner on receipt of an
\n\tapplication in Form “C”.\n<\/p>\n
Under
\n\tCHALR, 2004, Regulation 4 which is similarly worded to Regulation 4
\n\tof CHALR, 1984 provides for invitation of applications. Regulation 5
\n\tmakes provision for application for licence and is also similarly
\n\tworded to Regulation 5 of CHALR, 1984.  Regulation 6 of the CHALR,
\n\t2004 makes provision for conditions to be fulfilled by the
\n\tapplicant. Regulation 7 makes provision for scrutiny of applications
\n\tfor licence and is similarly worded to Regulation 7 of CHALR, 1984.
\n\tWhereas Regulation 8 of CHALR, 1984 which makes provision for grant
\n\tof temporary licence, has been done away with in CHALR, 2004.
\n\tRegulation 8 of CHALR, 2004 makes provision for examination of the
\n\tapplicant, which is more or less in pari materia to
\n\tRegulation 9 of CHALR, 1984, except that the same provides for
\n\tcertain additional subjects in respect of which questions may be
\n\tasked in the examination. Regulation 9 makes provision for grant of
\n\tlicence in Form “B” to an applicant who has passed the
\n\texamination referred to in Regulation 8.  Thus, the basic difference
\n\tbetween the two Regulations is, firstly, that in the new
\n\tRegulations, the provision for temporary licence has been done away
\n\twith and an applicant who has passed the examination referred to in
\n\tRegulation 8 is qualified to the grant of a licence to act as
\n\tCustoms House Agent.  The other difference is in the subjects in
\n\trelation to which the questions will be asked in the examination.
\n\tThe additional subjects are the Patent Act, 1970, the Copyrights
\n\tAct, 1957, the Central Excise Act, 1944, the Prevention of
\n\tCorruption Act, Online Filing of Electronic Shipping Bills or Bills
\n\tof Entry and Indian Customs and Central Excise Electronic
\n\tCommerce\/Electronic Data Interchange Gateway (ICEGATE) and Indian
\n\tCustoms Electronic Data Interchange Systems (ICES) and instead of
\n\tthe Imports & Exports Control Act, 1947, Foreign Exchange
\n\tRegulation Act, 1973, Opium Act, 1978 as prescribed under CHALR,
\n\t1984, in CHALR 2004, the Foreign Trade Development & Regulation
\n\tAct, 1993, the Foreign Exchange Management Act, 2000 and the
\n\tNarcotics Drugs & Psychotropic Substances Act have been
\n\tintroduced.\n<\/p>\n
Regulation
\n\t9 of CHALR, 2004 provides for grant of licence in Form “B”
\n\tto an applicant who has passed the examination referred to in
\n\tRegulation 9, however, the same does not specify as to what would be
\n\tthe position of those candidates who have already cleared the
\n\texamination under Regulation 9 of CHALR, 1984. The preamble to
\n\tCHALR, 2004 provides for supersession of CHALR, 1984 “except
\n\tas respect things done or omitted to be done before such
\n\tsupersession”.\n<\/p>\n
The
\n\tBoard vide clarification dated 10.6.2004, has clarified that those
\n\twho have not been granted licences under CHALR, 1984 till 23.4.2004
\n\tlose their right and have to meet the qualifications and pass the
\n\texamination under Regulation 8 of the CHALR 2004. Subsequently, by
\n\tvirtue of the (Amendment) Regulations 2010, under Regulation 8 of
\n\tCHALR, 2004, sub-regulation (9) has been inserted, which provides
\n\tthat any person who had passed the examination conducted in
\n\tRegulation 9 of the Customs House Agents Licensing Regulations,
\n\t1984, and has not yet been granted licence under the said
\n\tRegulations, upon declaring successful in a written examination
\n\tconducted on the subjects specified thereunder, shall be deemed to
\n\thave passed the examination referred to in Regulation 8 for the
\n\tpurpose of CHALR 2004. Pursuant to the said amendment in the
\n\tRegulations, the Commissioner of Customs, Ahmedabad has issued
\n\tPublic Notice No.26\/2010-Customs calling upon the candidates who had
\n\talready qualified under Regulation 9 of CHALR, 1984, but have not
\n\tgot Customs House Agent licence to appear in the Customs House Agent
\n\texamination in respect of additional subjects for the presently
\n\tprescribed course curriculum under CHALR 2004.  The examination was
\n\tscheduled to be held on 15th July 2010.\n<\/p>\n
The
\n\tmain grievance ventilated in the present petitions is that the
\n\tpetitioners along with others have qualified under Regulation 9 of
\n\tCHALR, 1984 for the grant of Customs House Agent licence. However,
\n\ton account of failure on the part of the concerned Commissioner in
\n\tinviting applications for grant of licence, the petitioners though
\n\tbeing qualified in all other respects, were not in a position to
\n\tobtain licences despite having made applications in this regard. Now
\n\tin view of the newly framed regulations, the petitioners are sought
\n\tto be discriminated against and are required to pass an examination
\n\tin additional subjects, whereas similarly situated persons who had
\n\tqualified under Regulation 9 of CHALR, 1984 and had already obtained
\n\tlicences under the said Regulations, are not required to appear in
\n\tthe said examination.  According to the petitioners, they are
\n\tqualified under CHALR, 1984 on par with the licence holders who were
\n\tqualified under the said Regulations. When, the licence holders who
\n\twere granted the licences under CHALR, 1984  are not required to
\n\tappear in the additional subjects and are permitted to continue with
\n\ttheir old licences, and even in case of renewal of licence, they are
\n\tnot required to appear in the additional subjects examinations, the
\n\tcondition prescribed for the petitioners to appear in the
\n\texamination to qualify for getting Customs House Agent licence is
\n\tclearly arbitrary and discriminatory and as such, is violative of
\n\tthe petitioners’ fundamental rights under Article 14 of the
\n\tConstitution of India.\n<\/p>\n
In
\n\tthis regard, it may be pertinent to note that those persons who had
\n\tacquired licences under CHALR, 1984 had passed the same qualifying
\n\texamination, namely, under Regulation 9 of CHALR 1984 similar to the
\n\tpresent petitioners who have been working as agents of licence
\n\tholders and are otherwise qualified for grant of licence. The only
\n\tdifference between the petitioners and those persons holding licence
\n\tunder CHALR, 1984 is that on account of failure on the part of the
\n\tconcerned Commissioner to invite applications for grant of Customs
\n\tHouse Agent Licence, the petitioners were unable to get licences
\n\tprior to the coming into force of the new regulations, viz., CHALR,
\n\t2004. The petitioners are otherwise in all other aspects similarly
\n\tsituated to the licence holders under the CHALR, 1984. The issue
\n\tthat arises for consideration is as to whether the provisions of
\n\tCHALR, 2004 read with the (Amendment) Regulations, 2010 and the
\n\tclarification issued by the Board, requiring the petitioners to
\n\tappear in examination of additional subjects for the qualifying to
\n\tapply for a licence under CHALR, 2004 are arbitrary and
\n\tdiscriminatory so as to be violative of the petitioners’
\n\trights under Article 14 of the Constitution.\n<\/p>\n
In
\n\tthe case of Union of India v. International Trading Co. and<\/a>
\n\tanother, (2003) 5 SCC 437, the Apex Court has held that
\n\twhile the discretion to change the policy in exercise of the
\n\texecutive power, when not trammeled by any statute is wide enough,
\n\twhat is imperative and implicit in terms of Article 14 is that a
\n\tchange in policy must be made fairly and should not give the
\n\timpression that it was done arbitrarily or by any ulterior criteria.\n<\/p>\n
It
\n\tis a well settled principle of law that  when a rule is challenged
\n\tas denying equal protection, the question for determination by the
\n\tcourt is not whether it has resulted in inequality but whether there
\n\tis some difference which bears a just and reasonable relation to the
\n\tobject of the legislation. Mere differentiation or inequality of
\n\tprotection does not amount to discrimination within the inhibition
\n\tof equal protection clause under Article 14 of the Constitution. To
\n\tattract the attention of the clause, it is necessary to show that
\n\tthe selection of differentiation is unreasonable or arbitrary and
\n\tthat it does not rest on any rational basis having regard to the
\n\tobject which the legislature had in view. The court has to examine
\n\twhether the classification can be deemed to rest upon differentia
\n\tdiscriminating the persons or things grouped from those left out and
\n\twhether such differentia has a reasonable relation to the objects
\n\tsought to be achieved. (Dhan Singh v. State of
\n\tHaryana, 1991 Supp (2) SCC 190). It is also well settled
\n\tthat the burden of establishing the reasonableness of the
\n\tclassification and its nexus with the object of the legislation is
\n\ton the State. (B. Prabhakar Rao v. State of A.P., 1985
\n\tSupp SC 432)<\/p>\n
In
\n\tState of Kerala v. N.M. Thomas,<\/a> (1976)
\n\t2 SCC 310, it was held thus :\n<\/p>\n
“24.\n<\/p>\n
Discrimination is the essence of classification. Equality is violated
\nif it rests on unreasonable basis. The concept of equality has an
\ninherent limitation arising from the very nature of the
\nconstitutional guarantee. Those who are similarly circumstanced are
\nentitled to an equal treatment. Equality is amongst equals.
\nClassification is, therefore, to be founded on substantial
\ndifferences which distinguish persons grouped together from those
\nleft out of the groups and such differential attributes must bear a
\njust and rational relation to the object sought to be achieved.\n<\/p>\n
31.
\nThe rule of parity is the equal treatment of equals in equal
\ncircumstances. The rule of differentiation is enacting laws
\ndifferentiating between different persons or things in different
\ncircumstances. The circumstances which govern one set of persons or
\nobjects may not necessarily be the same as those governing another
\nset of persons or objects so that the question of unequal treatment
\ndoes not really arise between persons governed by different
\nconditions and different sets of circumstances. The principle of
\nequality does not mean that every law must have universal
\napplication for all persons who are not by nature, attainment or
\ncircumstances in the same position and the varying needs of different
\nclasses of persons require special treatment. The legislature
\nunderstands and appreciates the need of its own people, that its laws
\nare directed to problems made manifest by experience and that its
\ndiscriminations are based upon adequate grounds. The rule of
\nclassification is not a natural and logical corollary of the rule of
\nequality, but the rule of differentiation is inherent in the concept
\nof equality. Equality means parity of treatment under parity of
\nconditions. Equality does not connote absolute equality. A
\nclassification in order to be constitutional must rest upon
\ndistinctions that are substantial and not merely illusory. The test
\nis whether it has a reasonable basis free from artificiality and
\narbitrariness embracing all and omitting none naturally falling into
\nthat category.\n<\/p>\n
Testing
\n\tthe facts of the present case on the anvil of the principles
\n\tenunciated in the aforesaid decisions, the undisputed facts are that
\n\tthe petitioners herein have cleared the examination held under
\n\tRegulation 9 of CHALR, 1984 and were otherwise qualified for grant
\n\tof licence under the said Regulations subject to scrutiny of certain
\n\tconditions. The petitioners are also working in some capacity or the
\n\tother, whether as director, partner, power or attorney, etc. of
\n\tregular licence holders. Thus, for all practical purposes the
\n\tpetitioners are holding qualifications equal to that of regular
\n\tlicence holders and have been discharging similar duties.  On behalf
\n\tof the respondents no other distinguishing feature has been pointed
\n\tout to indicate anything to the contrary. Thus, the petitioners were
\n\tdischarging functions on par with the regular licence holders,
\n\texcept the fact that as the concerned Commissionerates\/Collectorates
\n\tdid not invite applications as envisaged under Regulation 4 of the
\n\tRegulations, between the period since the petitioners cleared the
\n\tRegulation 9 examination and the coming into force of CHALR, 2004 on
\n\tsupersession of CHALR, 1984, the petitioners were not in a position
\n\tto obtain regular licences as contemplated under Regulation 10 of
\n\tCHALR, 1984. By virtue of the provisions of CHALR, 2004 as amended
\n\tvide (Amendment) Regulations, 2010 the respondents have sought to
\n\tcreate two classes of persons, viz., those who have obtained
\n\tlicences prior to the coming into force of CHALR, 2004 and those who
\n\ton account of failure on the part of the concerned Commissionerates
\n\tto invite applications under Regulation 4 of CHALR, 1984, though
\n\tqualified, could not obtain licences before the new Regulations came
\n\tinto force. As noted hereinabove, the burden of establishing the
\n\treasonableness of the classification and its nexus with the object
\n\tof the legislation is on the State.\n<\/p>\n
To
\n\testablish the reasonableness of the classification and to explain
\n\tthat the same has a valid nexus to the object sought to be achieved
\n\tby creating two classes, on behalf of the respondents it has been
\n\tstated that  taking a decision to conduct written examinations for
\n\tpersons, who had passed the Regulation 9 of CHALR, 1984, on the
\n\tadditional subjects, is based upon the need to ensure same
\n\tcompetence and knowledge levels amongst successful applicants under
\n\tboth the Regulations; that in the present scenario of electronic
\n\tfiling of import and export documents in majority of Customs
\n\tStations, majority of import documents are facilitated by Risk
\n\tManagement System (RMS), and the rest of the documents are
\n\tscrutinized by the officers based upon the risk perception; such
\n\tfacilitated documents do not get scrutinized by the Customs
\n\tOfficers. Thus a lot of faith has been imposed on the Trade.
\n\tAccording to the respondents in such a situation the onus on the
\n\tCustoms House Agents is much more to scrutinize the documents
\n\tproperly, before filing and to advise their clients properly.
\n\tHowever, they can do this work more efficiently only if they are
\n\tcompetent enough to do so. The explanation sought to be put forth on
\n\tbehalf of the respondents, however, fails to explain as to how the
\n\tpetitioners are in any manner differently situated than the regular
\n\tlicence holders who had qualified under CHALR, 1984, so as to be any
\n\tless competent than them. If those persons who had passed the
\n\tRegulation 9 examination under CHALR, 1984 and obtained regular
\n\tlicences at the relevant time possess the competence to act as
\n\tregular licence holders, one fails to understand as to how, in
\n\tabsence of any other distinguishing feature being pointed out, the
\n\tpetitioners who too have passed the Regulation 9 examination under
\n\tCHALR, 1984 and have been discharging similar duties in different
\n\tcapacities on behalf of the regular licence holders are any less
\n\tqualified or lack the competence that the said licence holders
\n\tpossess. On an overall consideration of the facts of the case, the
\n\tState has neither been able to establish the reasonableness of the
\n\tclassification nor its nexus with the object sought to be achieved
\n\tby the legislation. As to what is the basis and how is it reasonable
\n\tin differentially classifying equally qualified persons, merely on
\n\tthe basis of those having obtained licences prior to the coming into
\n\tforce of the new regulations and those who on account of failure on
\n\tthe part of the concerned Commissioner to invite applications could
\n\tnot get regular licences, is not coming forth. The nexus of such
\n\tclassification, in requiring those who had passed the Regulation 9
\n\texamination but could not obtain licences, to appear in the
\n\texamination for the additional subjects, with the object sought to
\n\tbe achieved is also not established inasmuch as those who had
\n\talready obtained licences earlier are not required to take the
\n\texamination. Thus, if those persons are competent to continue
\n\tholding licences and are entitled to renewal of licences under
\n\tCHALR, 2004, one fails to understand as to how similarly situated
\n\tpersons are deemed to be not competent merely because they could not
\n\tobtain licences earlier for the reasons noted hereinabove, namely,
\n\treasons beyond the control of the petitioners. Besides, in any field
\n\tover a period of time with advancement, new subjects are added to
\n\tthe syllabus, but that does not mean that persons who have already
\n\tqualified under the old syllabus are no longer qualified, merely
\n\tbecause subsequently new subjects are added. Besides, once an old
\n\tenactment is repealed and is substituted by a new one, those dealing
\n\twith the same would normally acquaint themselves with the new
\n\tenactment, and one does not need to pass the qualifying examination
\n\tonce again after having already qualified for the said purpose.\n<\/p>\n
On
\n\tbehalf of the respondents, it has been submitted that the persons
\n\talready holding Customs House Agent licences and the petitioners who
\n\tare yet to obtain a licence are two different classes of persons and
\n\tcannot be equated with each other; that the new subjects have been
\n\tintroduced in the light of the recommendations of the Kelkar
\n\tCommittee and that the additional subjects are based upon the need
\n\tto ensure the same competence and knowledge level amongst successful
\n\tcandidates under both the Regulations.  Thus, the object sought to
\n\tbe achieved by the impugned (Amendment) Regulations, is to ensure
\n\tthat the petitioners who had passed the qualifying examination under
\n\tCHALR, 1984 gain knowledge of the additional subjects as according
\n\tto the respondents, these were the subjects knowledge of which was
\n\tessential in case of all Customs House Agents and as such the same
\n\thas a direct nexus to the object sought to be achieved, namely, that
\n\tthe Customs House Agents should be properly qualified. However, the
\n\texplanation put forth by the respondents fails to explain as to how
\n\tif the petitioners, because they have not passed examination in the
\n\tadditional subjects, are not competent and qualified to obtain
\n\tlicences under CHALR 2004, the licence holders who were already
\n\tholding licences prior to the new regulations coming into force are
\n\tqualified to continue with such licences.\n<\/p>\n
In
\n\tthe case of the petitioners, though they are similarly situated to
\n\tthe licence holders under CHALR 1984, except for the fact that they
\n\thad not been granted licences as the concerned Commissionerate had
\n\tnot invited applications, the petitioners are now sought to be
\n\tsaddled with the liability to appear in the examinations to be
\n\tconducted in respect of additional subjects, whereas similarly
\n\tsituated licence holders are not required to do so. If the case of
\n\tthe respondents is to be accepted, namely, that the requirement of
\n\tthe petitioners to appear in the additional subjects has a nexus
\n\twith the object sought to be achieved, one fails to understand as to
\n\thow the existing licence holders are not required to appear for the
\n\tsame examinations in additional subjects. In case licence holders
\n\tare deemed to be qualified under the new regulations also for the
\n\tpurpose of continuation and extension of licence, it is beyond
\n\tcomprehension as to why the petitioners who are similarly situated
\n\tpersons, except for the fact that they were unable to obtain
\n\tlicences because the concerned Commissionerate did not invite
\n\tapplications, are required to be treated differently. Thus, the
\n\taction of the respondents is, on the face of it, arbitrary and
\n\tdiscriminatory and as such, cannot be countenanced. The fact that
\n\tthe petitioners, who though qualified under CHALR, 1984, due to no
\n\tfault of theirs’ could not obtain licences under the said
\n\tRegulations, are required to appear in the additional subjects when
\n\tother similarly qualified persons who had obtained licence under the
\n\tsaid Regulations are not required to appear in the said examination,
\n\tgives an indication that the same has no nexus to the object sought
\n\tto be achieved. If the object sought to be achieved was that all
\n\tCustoms House Agents should have knowledge of the said subjects,
\n\tthen there is no rationale behind making an exception in respect of
\n\tthose persons who had already obtained licences under the old
\n\tRegulations from having to appear in the said examination. Thus,
\n\tsubmission that the classification is reasonable and has a nexus to
\n\tthe object sought to be achieved does not merit acceptance.\n<\/p>\n
Moreover,
\n\tit may be pertinent to note that the Board has issued instructions
\n\ton 31.10.2007 as well as 8.4.2010, calling upon the Commissionerates
\n\tto clear up backlog of pending requests by various applicants who
\n\thad qualified as per CHALR, 2004 for issue of licences which have
\n\tbeen held up by various Customs Commissionerates within a month and
\n\tsend a compliance report to the Board. Thus, the instructions issued
\n\tby the Board are on the face of it contrary to the provisions of
\n\tRegulation 4 of the Regulations which vests in the Commissioner the
\n\tdiscretion as to when to invite applications and the number of
\n\tapplications to be invited. In the circular dated 8.4.2010, the
\n\tBoard has expressed the view that no restriction should be placed on
\n\tthe number of Customs House Agents operating in the Custom Houses
\n\tand the market forces should govern the number of proficient and
\n\tqualified persons required to carry out the job of Customs House
\n\tAgent commensurate with the volume of import\/export cargo. In the
\n\tcircular dated 31.10.2007, the Board has instructed the
\n\tCommissionerates that irrespective of the norms prescribed by the
\n\tBoard under CHALR, 1984, the concerned Commissioners of Customs
\n\tshall issue Customs House Agent licence to all those applicants who
\n\thad passed the Regulation 8 examination conducted under CHALR, 2004,
\n\tsubject to their fulfillment of the requisite conditions as
\n\tmentioned in CHALR 2004.  Thus, it is apparent that the respondents
\n\tare blowing hot and cold at the same time. When it comes to dealing
\n\twith the applications made by the petitioners despite the
\n\tCommissioners not having invited applications, it has been contended
\n\ton behalf of the respondents that in the light of the provisions of
\n\tRegulation 4, licences can be issued only as and when the concerned
\n\tCommissioner invites applications in respect of the same even if the
\n\tapplicants may be qualified in all respects.  Whereas, as regards
\n\tthe persons who have qualified under CHALR, 2004, despite the fact
\n\tthat Regulation 4 of the CHALR, 2004 also prescribes for
\n\tapplications being invited by the concerned Commissioner and is in
\n\tpari materia to the provisions of Regulation 4 of CHALR, 1984,
\n\tthe Board has thought it fit to override the said regulation and has
\n\tdirected the Commissioners of Customs to clear the backlog of
\n\tpending applications by various applicants who had qualified as per
\n\tCHALR, 2004.\n<\/p>\n
One
\n\tfinds it difficult to comprehend as to how there were applicants
\n\tunder CHALR, 2004 when the concerned Commissionerate had not invited
\n\tany applications in this regard. In fact, as can be seen from the
\n\tinstructions dated 31.10.2004, not only has the Board directed the
\n\tCommissioners to clear the backlog of pending requests of various
\n\tapplicants, who had qualified as per CHALR 2004, for issue of
\n\tlicences, within a month but also to send a compliance report to the
\n\tBoard.  Thus, the treatment meted out to the petitioners herein is
\n\ton the face of it discriminatory inasmuch as upon applications made
\n\tby the petitioners, they are told that the same would be subject to
\n\tconcerned Commissioner inviting applications under Regulation 4,
\n\twhereas in respect of those applicants who have qualified as per the
\n\tnew regulations, general directions have been issued to
\n\tCommissionerates to grant licences to them within a period of one
\n\tmonth. As pointed out on behalf of the petitioners two persons have
\n\talready been granted licences in Jamnagar after the coming into
\n\tforce of CHALR, 2004 and several persons in other States have also
\n\tbeen granted licences under the new regime. In the circumstances,
\n\tthe action of the respondents is clearly arbitrary and
\n\tdiscriminatory and violative of the petitioners’ fundamental
\n\trights under Article 14 of the Constitution of India and as such
\n\tcannot be sustained.\n<\/p>\n
For
\n\tthe foregoing reasons, the petitions succeed and are, accordingly,
\n\tallowed. The Customs House Agents Licensing (Amendment) Regulations,
\n\t2010 issued vide Notification No.30\/2010 dated 8.4.2010, insofar as
\n\tthe same impose a condition upon those persons who had passed the
\n\texamination conducted under Regulation 9 of the Customs House Agents
\n\tLicensing Regulations, 1984 and have not been granted licence under
\n\tthe said Regulations, to clear the examination in additional
\n\tsubjects to be deemed to have passed the examination referred to in
\n\tRegulation 8 for the purpose of Customs House Agents Licensing
\n\tRegulations 2004, is hereby quashed and set aside. Consequently, the
\n\tpetitioners are entitled to be considered for grant of Customs House
\n\tAgent licences without having to clear the examination in the
\n\tadditional subjects. In the light of the instructions issued by the
\n\tBoard in respect of the applications made by the applicants who had
\n\tqualified as per Customs House Agents Licensing Regulations 2004,
\n\tthe respondent No.3 is directed to dispose of the
\n\tapplications\/pending applications of the petitioners for grant of
\n\tlicences treating the petitioners on a par with the applicants who
\n\thave qualified under CHALR, 2004, subject to their fulfilling other
\n\trequirements under the Regulations.  Rule is made absolute
\n\taccordingly with no order as to costs.\n<\/p>\n
In
\n\tthe light of the order made in the main petition, Civil Applications
\n\tNo.5891 and 5892 of 2010 praying for stay of the impugned
\n\tnotification do not survive and are, accordingly, disposed of.\n<\/p>\n
[D.A.MEHTA,
\nJ.]<\/p>\n
[HARSHA
\nDEVANI, J.]<\/p>\n
At
\nthis stage, on behalf of the respondents, a request has been made for
\nstaying the operation of the judgment by Mr.R.M.Chhaya, learned
\nSenior Standing Counsel.  Considering the request made by the learned
\ncounsel, the operative part of the judgement, except to the extent
\nindicated hereinafter, is stayed for a period of eight weeks from
\ntoday.  The direction to the respondent No.3 to dispose of the
\napplications of the petitioners for grant of licence shall continue
\nand the grant of licence, if any, shall be subject to the final
\noutcome of any proceedings preferred against the present judgement.\n<\/p>\n
[D.A.MEHTA,
\nJ.]<\/p>\n
[HARSHA
\nDEVANI, J.]<\/p>\n
parmar*<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Ravindra vs Union on 1 October, 2010 Author: D.A.Mehta,&Nbsp;Honourable Ms.Justice H.N.Devani,&Nbsp; Gujarat High Court Case Information System Print SCA\/6151\/2010 64\/ 64 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6151 of 2010 with CIVIL APPLICATION NO.5891 OF 2010 AND SPECIAL CIVIL APPLICATION NO.6152 of 2010 with CIVIL […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-34444","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nRavindra vs Union on 1 October, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ravindra-vs-union-on-1-october-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ravindra vs Union on 1 October, 2010 - Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.legalindia.com\/judgments\/ravindra-vs-union-on-1-october-2010\" \/>\n<meta property=\"og:site_name\" content=\"Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/LegalindiaCom\/\" \/>\n<meta property=\"article:published_time\" content=\"2010-09-30T18:30:00+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2018-08-24T17:32:19+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"512\" \/>\n\t<meta property=\"og:image:height\" content=\"512\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Legal India Admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@legaliadmin\" \/>\n<meta name=\"twitter:site\" content=\"@Legal_india\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Legal India Admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"77 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/ravindra-vs-union-on-1-october-2010#article\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/ravindra-vs-union-on-1-october-2010\"},\"author\":{\"name\":\"Legal India Admin\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\"},\"headline\":\"Ravindra vs Union on 1 October, 2010\",\"datePublished\":\"2010-09-30T18:30:00+00:00\",\"dateModified\":\"2018-08-24T17:32:19+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/ravindra-vs-union-on-1-october-2010\"},\"wordCount\":15248,\"commentCount\":0,\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"articleSection\":[\"Gujarat High Court\",\"High Court\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/ravindra-vs-union-on-1-october-2010#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/ravindra-vs-union-on-1-october-2010\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/ravindra-vs-union-on-1-october-2010\",\"name\":\"Ravindra vs Union on 1 October, 2010 - Free Judgements of Supreme Court & High Court | Legal India\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#website\"},\"datePublished\":\"2010-09-30T18:30:00+00:00\",\"dateModified\":\"2018-08-24T17:32:19+00:00\",\"breadcrumb\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/ravindra-vs-union-on-1-october-2010#breadcrumb\"},\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/ravindra-vs-union-on-1-october-2010\"]}]},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/ravindra-vs-union-on-1-october-2010#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"Ravindra vs Union on 1 October, 2010\"}]},{\"@type\":\"WebSite\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#website\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\",\"name\":\"Free Judgements of Supreme Court & High Court | Legal India\",\"description\":\"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.\",\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"alternateName\":\"Free judgements of Supreme Court & High Court of India | Legal India\",\"potentialAction\":[{\"@type\":\"SearchAction\",\"target\":{\"@type\":\"EntryPoint\",\"urlTemplate\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/?s={search_term_string}\"},\"query-input\":{\"@type\":\"PropertyValueSpecification\",\"valueRequired\":true,\"valueName\":\"search_term_string\"}}],\"inLanguage\":\"en-US\"},{\"@type\":\"Organization\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\",\"name\":\"Judgements of Supreme Court & High Court | Legal India\",\"alternateName\":\"Legal India\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\",\"logo\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/logo\\\/image\\\/\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/wp-content\\\/uploads\\\/sites\\\/5\\\/2025\\\/09\\\/legal-india-icon.jpg\",\"contentUrl\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/wp-content\\\/uploads\\\/sites\\\/5\\\/2025\\\/09\\\/legal-india-icon.jpg\",\"width\":512,\"height\":512,\"caption\":\"Judgements of Supreme Court & High Court | Legal India\"},\"image\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/logo\\\/image\\\/\"},\"sameAs\":[\"https:\\\/\\\/www.facebook.com\\\/LegalindiaCom\\\/\",\"https:\\\/\\\/x.com\\\/Legal_india\"]},{\"@type\":\"Person\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\",\"name\":\"Legal India Admin\",\"image\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"url\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"contentUrl\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"caption\":\"Legal India Admin\"},\"sameAs\":[\"https:\\\/\\\/www.legalindia.com\",\"https:\\\/\\\/x.com\\\/legaliadmin\"],\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/author\\\/legal-india-admin\"}]}<\/script>\n<!-- \/ Yoast SEO plugin. -->","yoast_head_json":{"title":"Ravindra vs Union on 1 October, 2010 - Free Judgements of Supreme Court & High Court | Legal India","robots":{"index":"index","follow":"follow","max-snippet":"max-snippet:-1","max-image-preview":"max-image-preview:large","max-video-preview":"max-video-preview:-1"},"canonical":"https:\/\/www.legalindia.com\/judgments\/ravindra-vs-union-on-1-october-2010","og_locale":"en_US","og_type":"article","og_title":"Ravindra vs Union on 1 October, 2010 - Free Judgements of Supreme Court & High Court | Legal India","og_url":"https:\/\/www.legalindia.com\/judgments\/ravindra-vs-union-on-1-october-2010","og_site_name":"Free Judgements of Supreme Court & High Court | Legal India","article_publisher":"https:\/\/www.facebook.com\/LegalindiaCom\/","article_published_time":"2010-09-30T18:30:00+00:00","article_modified_time":"2018-08-24T17:32:19+00:00","og_image":[{"width":512,"height":512,"url":"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1","type":"image\/jpeg"}],"author":"Legal India Admin","twitter_card":"summary_large_image","twitter_creator":"@legaliadmin","twitter_site":"@Legal_india","twitter_misc":{"Written by":"Legal India Admin","Est. reading time":"77 minutes"},"schema":{"@context":"https:\/\/schema.org","@graph":[{"@type":"Article","@id":"https:\/\/www.legalindia.com\/judgments\/ravindra-vs-union-on-1-october-2010#article","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/ravindra-vs-union-on-1-october-2010"},"author":{"name":"Legal India Admin","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea"},"headline":"Ravindra vs Union on 1 October, 2010","datePublished":"2010-09-30T18:30:00+00:00","dateModified":"2018-08-24T17:32:19+00:00","mainEntityOfPage":{"@id":"https:\/\/www.legalindia.com\/judgments\/ravindra-vs-union-on-1-october-2010"},"wordCount":15248,"commentCount":0,"publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"articleSection":["Gujarat High Court","High Court"],"inLanguage":"en-US","potentialAction":[{"@type":"CommentAction","name":"Comment","target":["https:\/\/www.legalindia.com\/judgments\/ravindra-vs-union-on-1-october-2010#respond"]}]},{"@type":"WebPage","@id":"https:\/\/www.legalindia.com\/judgments\/ravindra-vs-union-on-1-october-2010","url":"https:\/\/www.legalindia.com\/judgments\/ravindra-vs-union-on-1-october-2010","name":"Ravindra vs Union on 1 October, 2010 - Free Judgements of Supreme Court & High Court | Legal India","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/#website"},"datePublished":"2010-09-30T18:30:00+00:00","dateModified":"2018-08-24T17:32:19+00:00","breadcrumb":{"@id":"https:\/\/www.legalindia.com\/judgments\/ravindra-vs-union-on-1-october-2010#breadcrumb"},"inLanguage":"en-US","potentialAction":[{"@type":"ReadAction","target":["https:\/\/www.legalindia.com\/judgments\/ravindra-vs-union-on-1-october-2010"]}]},{"@type":"BreadcrumbList","@id":"https:\/\/www.legalindia.com\/judgments\/ravindra-vs-union-on-1-october-2010#breadcrumb","itemListElement":[{"@type":"ListItem","position":1,"name":"Home","item":"https:\/\/www.legalindia.com\/judgments\/"},{"@type":"ListItem","position":2,"name":"Ravindra vs Union on 1 October, 2010"}]},{"@type":"WebSite","@id":"https:\/\/www.legalindia.com\/judgments\/#website","url":"https:\/\/www.legalindia.com\/judgments\/","name":"Free Judgements of Supreme Court & High Court | Legal India","description":"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.","publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"alternateName":"Free judgements of Supreme Court & High Court of India | Legal India","potentialAction":[{"@type":"SearchAction","target":{"@type":"EntryPoint","urlTemplate":"https:\/\/www.legalindia.com\/judgments\/?s={search_term_string}"},"query-input":{"@type":"PropertyValueSpecification","valueRequired":true,"valueName":"search_term_string"}}],"inLanguage":"en-US"},{"@type":"Organization","@id":"https:\/\/www.legalindia.com\/judgments\/#organization","name":"Judgements of Supreme Court & High Court | Legal India","alternateName":"Legal India","url":"https:\/\/www.legalindia.com\/judgments\/","logo":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/","url":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","contentUrl":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","width":512,"height":512,"caption":"Judgements of Supreme Court & High Court | Legal India"},"image":{"@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/"},"sameAs":["https:\/\/www.facebook.com\/LegalindiaCom\/","https:\/\/x.com\/Legal_india"]},{"@type":"Person","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea","name":"Legal India Admin","image":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","url":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","contentUrl":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","caption":"Legal India Admin"},"sameAs":["https:\/\/www.legalindia.com","https:\/\/x.com\/legaliadmin"],"url":"https:\/\/www.legalindia.com\/judgments\/author\/legal-india-admin"}]}},"modified_by":null,"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_likes_enabled":true,"jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/34444","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/comments?post=34444"}],"version-history":[{"count":0,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/34444\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/media?parent=34444"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/categories?post=34444"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/tags?post=34444"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}