2000 (1) TMI 62 - HC - Customs

Summary

Issues Involved:
1. Refusal to grant temporary Customs House Agents (CHA) licences.
2. Interpretation and application of Section 146 of the Customs Act, 1962.
3. Validity and interpretation of Customs House Agents Licensing Regulations, 1984, particularly Regulation 4.
4. Ultra vires nature of delegated legislation.

Detailed Analysis:

1. Refusal to Grant Temporary CHA Licences:
The petitioners challenged the refusal by the Commissioner of Customs (Administration), Calcutta, to grant temporary CHA licences. The refusal was based on the grounds that the existing number of CHAs was sufficient to handle the current workload, and no public notice or advertisement had been issued inviting applications for new licences.

2. Interpretation and Application of Section 146 of the Customs Act, 1962:
Section 146 of the Customs Act mandates that no person shall act as a CHA without a licence granted in accordance with the regulations. The petitioners argued that the regulations made under this section should not impose additional restrictions not specified in the parent law. They contended that the refusal to grant licences based on the existing number of CHAs was not supported by Section 146.

3. Validity and Interpretation of Customs House Agents Licensing Regulations, 1984, Particularly Regulation 4:
Regulation 4, as amended in 1997, allows the Commissioner to invite applications for a specified number of licences as assessed by him. The petitioners argued that this regulation, which limits the number of licences, was ultra vires the parent Act. They emphasized that the Supreme Court had previously ruled that none of the clauses of sub-section (2) of Section 146 prescribed any restriction on the grant of temporary licences.

4. Ultra Vires Nature of Delegated Legislation:
The petitioners contended that the delegated legislation (Regulation 4) could not override the parent law (Section 146 of the Customs Act). They argued that the regulation's restriction on the number of licences was not in conformity with the parent Act and was procedurally ultra vires. The court agreed, stating that the regulation must conform to the provisions of the statute under which it is framed and within the scope of the rule-making power of the authority.

Judgment Summary:
The court quashed the refusal to grant temporary CHA licences, holding that the regulation restricting the number of licences was ultra vires the parent Act. The court emphasized that the authority must invite applications for temporary licences every year, as mandated by the regulations, to test the bona fides of applicants. The court ordered the Customs Authority to invite applications from eligible candidates in January every year and adjudge the merit of each case within the regulatory framework. The judgment has binding effect on the other writ petitions heard analogously.