Jaiswal Import Cargo Services Ltd. vs C.C. (Airport and Admin.)

Harish Tandon, J.—The petitioner has challenged the Order No. 22 of 2013, dated 2-9-2013 issued by the Commissioner of Customs (Airport & Admn.) Custom House, Kolkata, prohibiting the petitioner from operating as customs broker in the sections of Port & Airport at Kolkata, Haldia until further orders. Apropos the said order, the Deputy Commissioner of Customs (CHA) Custom House, Kolkata issued a circular dated 3-9-2013 which is also a subject matter of this writ petition. From the order impugned in this writ petition it appears that the same has been passed by invoking Regulation 23 of Customs Brokers Licensing Regulation, 2013, which was notified on 21-6-2013. The bone of contention of the petitioner in this writ petition is that the said order came to be passed in respect of the alleged act done prior thereto and, therefore, it cannot apply unless there is an express indication in the regulations itself to operate retrospectively. Regulation 23 relates to the prohibition of a custom broker to act in such capacity in one or more sections of the customs station, if the authorities are satisfied that the customs broker has not fulfilled its obligation under Regulation 11 thereof. The said regulation appears to have been invoked citing the various instances which came within the misconduct indicated in Regulation 11. Sections 18, 19 & 20 envisages the revocation, suspension and imposition of penalties. The aforesaid regulations contains the express provisions for affording an opportunity of hearing which is absent in Regulation 23 thereof.

Reliance is placed by the petitioner on judgment of the Apex Court in the case of Raj Restaurant and Another Vs. Municipal Corporation of Delhi, in support of the contention that before refusing to renew or cancelling or revoking the license the minimum principle of natural justice of affording an opportunity to represent the case is imperative.

Further reliance is placed in case of M.P. State Agro Industries Development Corporation Ltd. and Another Vs. Jahan Khan, to the proposition that the existence of an alternative remedy is not an absolute bar and the High Court can exercise the power of judicial review under Article 226 of the Constitution if it involves the enforcement of the Fundamental Rights, failure of principles of natural justice and the order impugned is fully without jurisdiction or the vires of the act is challenged. While contending that the adherence of the rules of natural justice is not a mere formality but aims to secure the justice or to prevent the miscarriage of justice, reliance is placed upon the judgment of Kesar Enterprises Ltd. Vs. State of U.P. and Others,

The learned Advocate appearing for the Revenue however, contends that the authorities not only refer the Regulation Act, 2013 but, also refer the Regulation Act, 2004 which were superseded by a latter Regulation and, therefore, it cannot be said that the order ex facie is bad. It is further contended that Regulation 23 contains a non obstante clause and does not provide for any opportunity of hearing and, therefore, the non-adherence of the principles of natural justice does not entail the dismissal of the order itself.

Prima facie this Court finds upon reading of the impugned order that the authorities have not only quoted the misconduct envisaged under Regulation 11 of Regulation (2013), but also simultaneously quoted the same misconduct provided under Regulation 2004. It is an admitted position that an opportunity of personal hearing was not provided by the authority before passing the impugned order. It also appears from the annexure to the writ petitions that a show cause notice was issued by the office of the Commissioner of Customs on 21st August, 2013 against the importer as well as the petitioner which is accordingly replied and the authority have not taken a final decision thereupon. Upon perusing, the Regulation 19 of 2013 Regulation which contains the provision for immediate suspension of the licence, it requires a hearing to the customs broker within 15 days from the date of the said order of suspension. This Court finds which is obviously tentative that even if Regulation 2013 does not provide in express term for providing an opportunity of hearing, the cumulative reading of the various Regulations envisage that an opportunity of hearing should be given before such a harsh decision is taken by the authorities. Even a suspension under Regulation 19 has a limited life and, therefore, this Court feels that the petitioner has made out a prima facie case and the exigency requires an interim order to be passed.

Accordingly, this Court, pass an interim order in terms of prayer (g) to the writ petition for a period of four weeks after reopening of this Court following Puja vacation or until further order whichever is earlier. Since the matter required to be heard finally, this Court directed the respondents to file affidavits-in-opposition within one week after the Puja vacation. Reply thereto, if any, be filed within a week thereafter. Matter to appear in the list two weeks after the Puja vacation under the heading "Listed Motion".