2015 (4) TMI 925 - HC - Customs

Prohibition on trade - Denial to operate as courier service - cost recovery charges - It is stated that the appointment of the custodian for handling of courier cargo is a precondition prescribed by statute for allowing courier operations and hence, the courier operations can be allowed only after the statutory requirement is fulfilled. - held that - present stalemate is only because of the communication gap between the third respondent and the first respondent regarding cost recovery charges. The petitioners are penalised on account of the same. Though it is imperative that the third respondent should comply with the mandatory conditions prescribed under Regulation 5 of the Handling of Cargo in Customs Area Regulations 2009, respondents 1 and 2 should not have prevented the petitioners from conducting their operations. - Decided in favour of appellant.

Summary

Issues Involved:
1. Inertia on the part of respondents in permitting petitioners to resume courier operations.
2. Provision of necessary facilities for courier operations.
3. Violation of petitioners' fundamental rights under Articles 14, 19, and 21.
4. Compensation for financial constraints due to respondents' actions.
5. Mandatory cost recovery charges under Handling of Cargo in Customs Area Regulations, 2009.
6. Custodianship and handling of international courier cargo at Thiruvananthapuram Airport.

Detailed Analysis:

1. Inertia on the Part of Respondents:
The petitioners, authorized courier agencies with valid licenses under the Courier Import and Export (Clearance) Regulations, 1998, alleged that respondents were not permitting them to resume operations at Thiruvananthapuram International Airport despite successful challenges to license revocations. The court found that the petitioners were arbitrarily denied their right to trade, which was a violation of their constitutional rights.

2. Provision of Necessary Facilities:
The petitioners claimed that no facilities previously enjoyed before license revocation were offered, impacting their trade. The court directed respondents to provide all necessary facilities to the petitioners for courier operations at Thiruvananthapuram International Airport.

3. Violation of Fundamental Rights:
The petitioners argued that the respondents' inertia violated their fundamental rights under Articles 14, 19, and 21 of the Constitution. The court acknowledged this violation and noted that similar operations were smoothly conducted at other airports, highlighting the arbitrary nature of the respondents' actions.

4. Compensation for Financial Constraints:
The petitioners sought compensation for financial constraints due to the respondents' actions, including maintaining offices and infrastructure with ongoing expenses. The court recognized the financial burden on the petitioners but did not explicitly grant compensation in the judgment.

5. Mandatory Cost Recovery Charges:
Respondents contended that payment of cost recovery charges was mandatory under the Handling of Cargo in Customs Area Regulations, 2009, unless exempted by the Ministry of Finance. The court noted that the present stalemate was due to a communication gap regarding these charges and directed the third respondent to provide an undertaking for cost recovery charges to facilitate the resumption of operations.

6. Custodianship and Handling of International Courier Cargo:
The court addressed the issue of custodianship and handling of international courier cargo at Thiruvananthapuram Airport. It was noted that the Airport Authority of India and the additional fourth respondent (KSIE) had set up the necessary facilities, but the operations were stalled due to unresolved custodianship issues. The court directed the respondents to issue the necessary notification for custodianship and permit the petitioners to resume operations based on the third respondent's undertaking.

Conclusion:
The court allowed the writ petition and directed respondents 1 and 2 to issue the necessary notification permitting the petitioners to resume courier operations at Thiruvananthapuram International Airport within two weeks. The third respondent was instructed to provide an undertaking regarding cost recovery charges to facilitate this process. The judgment emphasized the respondents' arbitrary actions and the violation of the petitioners' fundamental rights, mandating corrective measures to restore their operational capabilities.