- (1.)Petitioner is a registered firm carrying on the business of clearing and forwarding of various goods through the customs houses of Cochin and Trivandrum. The Managing Partner of the firm is one Mr. P.K.G. Nair. He was employed in M/s. Binny Ltd., Cochin-3 up to 1986. M/s. Binny Ltd. was having a licence to transact business as custom house agent at Cochin Customs Station originally issued on 5.12.1969 under the Customs Act, 1962 (for short "the Act") and the Customs House Agents Licensing Regulations, 1965 (for short "the 1965 Regulations"). Ext. P2 is a copy of the renewed licence issued to M/s. Binny Ltd., valid up to 4.12.1988. Mr. P.K.G. Nair, the Managing Partner of the firm, who was then an employee of the company, was authorised to act as their agent and was duly recognised by the Customs authorities as evidenced by Ext. P2 licence in Form D issued under Regulation 10 the 1965 Regulations. Before being recognised as a duly authorised agent of the licensee and permitted to act as such on behalf of the licensee company, Mr. P.K.G. Nair has passed the examination passing of which is prescribed as a qualification under Regulation 9 of the 1965 Regulations for being allowed to transact business under the licensee. On the basis of the qualifications so acquired he was acting as an agent for the licensee company till he retired from the company in 1986 even after the repeal of the 1965 Regulations and promulgation of the Customs House Agents Licensing Regulations, 1984 (for short "the 1984 Regulations").
(2.)On the formation of the firm, the firm applied for the issue of a licence to act as Custom House Agent in Form A prescribed under 1984 Regulations under the cover of their letter, Ext. P3 dated 5.2.1987. In Ext. P3 the firm specifically pointed out that its Managing Partner was acting as an agent of M/s. Binny Ltd. from 1979 to 1986 and as an employee of M/s. Binny Ltd., he has passed the written and oral examinations prescribed as qualification for acting on behalf of a custom house agent. Pursuant to the application submitted by the firm, a temporary licence to operate as custom house agent in Form B was issued under Regulation 8 of 1984 Regulations on 13.4.1987 to the firm valid for a period of one year and evidenced by Ext. P5. One of the conditions of the said licence is that the custom house work of the firm shall be transacted through one of the persons whose names were mentioned in the licence, namely, Mr. P.K.G. Nair or Mrs. Asha Nair. The temporary licence so issued was renewed for a further period of one year valid up to 12.4.1988 as evidenced by Ext. P5(a). As per Ext. P5(a) licence three persons, namely, Mr. P.K.G. Nair, Mrs. Asha Nair and Mr. G.C. Nair were allowed to transact custom house work on behalf of the firm during the period of the licence. Though temporary licence was issued and renewed, regular licence under Regulation 10 of the 1984 Regulations was not issued and as such the firm submitted Ext. P6 representation to the first respondent requesting him to issue regular licence. Along with Ext. P6 they submitted an application for grant of regular licence in Form C prescribed by the 1984 Regulations and also expressed their readiness to remit the required amount and to fulfil further formalities, if any, under the 1984 Regulations. In spite of such request regular licence was not issued to the firm and the firm has filed the O.P. for the issue of a writ of mandamus or other appropriate writ, direction or order to direct respondents to grant the regular licence under Regulation 10 of the 1984 Regulations to the firm recognising its Managing Partner Mr. P.K.G. Nair as duly qualified to transact custom house work without insisting upon him to pass the examination prescribed as qualification for being allowed to act as an agent of the licensee under the Regulations. The firm has alternatively prayed for a direction to be issued to the respondents to exempt Mr. P.K.G. Nair who has already passed the qualifying examination for being recognised as an agent to work on behalf of a licensee and to issue regular licence to the firm recognising its Managing Partner Mr. P.K.G. Nair as its duly authorised agent to transact the business on behalf of the firm. There is a further prayer to declare Mr. P.K.G. Nair as qualified to hold the regular licence under the Regulations without passing any tests or examinations under the Regulations. The other prayers in the O.P. are only incidental prayers to which it is unnecessary to refer to specifically.
(3.)The first respondent, Collector of Customs, has filed a counter affidavit on his own behalf and on behalf of the second respondent, the Union of India. In the counter affidavit respondents have admitted the fact that Mr. P.K.G. Nair was acting as the duly authorised agent of M/s. Binny Ltd., Cochin-3, a licensee under the Regulations and was transacting the business in the custom house for and on behalf of the company as an employee who was holding a power of attorney from the licensee company. In the counter affidavit respondents have also specifically admitted that Mr. P.K.G. Nair has appeared for the written examination, a pass in which is prescribed as a qualification under Regulation 9 of the 1965 Regulations for being recognised as an authorised agent of a licensee on 15.12.1978 and viva voce on 17.1.1980 and was declared as passed and was allowed to transact business as a qualified agent on behalf of the licensee company. It was further stated thus in para 7 of the counter affidavit:
...However, as he had passed the examination it may be considered as a self acquisition of a qualification. Hence he can join with the company or any firm which are holding permanent custom house agent licence as a qualified person. Such actions are ratified in the new Regulation under Regulation 26. But it does not mean that the licence of the company/firm is his own personal one....

While admitting the above facts, the respondents have disputed the claim of the petitioner firm that Mr. P.K.G. Nair was the holder of a permanent licence issued under Section 146 of the Act It was specifically asserted that M/s. Binny Ltd. was the licensee and Mr. P.K.G. Nair was recognised only as an authorised agent of the licensee in his capacity as an employee of the licensee company holding a power of attorney from the company. Respondents while refuting the allegation that no action was taken with reference to the request of the firm for issue of regular licence took up the stand that unless of the owners of the firm or any other person on behalf of the firm duly authorised to transact business on its behalf as agent passes the examination under Regulation 9 of the 1984 Regulations, it would not be possible for the authorities to issue regular licence to the firm. In support of their stand, the respondents produced Ext. R1(a) communication received by the first respondent from the Under Secretary to Government of India dated 19.2.1988. Ext. R1(a) is a communication received by the first respondent in reply to a letter seeking clarification regarding the request received from the Power of Attorney holders of licensee to exempt them from the requirement of passing the examination under Regulation 9 of the 1984 Regulation. Ext. R1(a) which purports to be a clarificatory communication issued to first respondent with reference to his letter No. Section 9/17/87-I & D-Cus, dated 3rd September, 1987 is in the following terms:

I am directed to refer to your letter Nos. 9/17/87-I & B-Cus, dated the 3rd September, 1987 on the above noted subject and to say that it is seen that holders of power of attorney of old C.H.A. Licences have not applied for a fresh temporary licence under the new C.H.A.L. Regulations, 1984, under the circumstances the holder of new temporary licence would be governed by the provision of Customs House Agent Licence Regulations, 1984 and it would be necessary for the owner of the firm or any person who actually transacts business through the Custom House on behalf of the firm to pass the examination under Regulation 9 of the said 1984 Regulations. It would, therefore, be advisable to take further action in the matter accordingly.

Relying upon the clarification issued as per Ext. R1(a) communication the respondents have contended that the firm is not entitled to get regular licence issued to them recognising Mr. P.K.G. Nair as its due agent entitled to transact custom house business on its behalf since he has not passed the examination held under Regulation 9 of 1984 Regulations.

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