- (1.) This writ petition was heard along with two other writ petitions being W.P. No. 2870 of 1999 and W.P. 1743 of 2000 since the cause of action in all the three matters are similarly placed. The grievance of the writ petitioners are refusal to consider grant of temporary Customs house agents licence by the Commissioner of Customs (Administration), Calcutta, being Reference No. 45-12/99 Estt. dated 8th September, 1999 under Annexure L' to the first writ petition as follows : "Subject : Your application dated 26-8-1999 for grant of temporary CHA Licence. Please refer your letter under reference no. Nil dated 26-8-1999 on the above subject. In this context, the provision of Regulation 4 of CHALRR, 1984 is appended below : Invitation of application :- The Commissioner may invite application for grant of such no. of licences as assessed by him, to act as customs house agent in the month of January every year by means of a notice affixed on the notice board of each customs station as well as through publication in the least two newspapers having circular in the area of his jurisdiction specifying therein the last date of receipt of application. Such application shall be for clearance work within the jurisdiction of the said Commissioner. As per provision of the aforesaid Regulation, this office has not issued any Public Notice or made any advertisement in the newspaper inviting application for grant of temporary CHA Licence due to the following grounds : The basic idea of issuing CHA Licences is that the trade and industry in general are convinced for handling their import and export work. The No. of CHAs existing as on date is 189 which is quite sufficient to handle the present workload. In fact, in certain aspects, the no. is more than what is actually needed. I have gone through the facts, figures and papers available in this regard. As of now, considering the workload of both import and export in both part as well as in Airport the no. of existing CHAs is more than adequate to take care of the workload. In view of the above, your application, dated 26-8-1999 is considered and rejected."
(2.) Petitioners urged a very interesting question of law in respect of the allotment of customs house temporary agent's licence. According to the writ petitioners, Section 146 of the Customs Act, is made provisions for the purpose of giving licence to customs house agents, which is the parent law for the purpose. Section 146 of the Act is as follows : "Section 146. Custom house agents to be licensed : - (1) No person shall carry on business as an agent relating to the entry or departure of a conveyance or the import or export of goods at any customs-station unless such person holds licences granted in this behalf in accordance with the regulations; (2) The Board may make regulations for the purpose of carrying out the provisions of this Section and, in particular, such regulations may provide for - (a) The authority by which the licence may be granted under this Section and the period of validity of any such licence; (b) The form of the licence and the fees payable therefor; (c) The qualifications of persons who may apply for a licence and the qualifications of persons to be employed by a licensee to assess him in his work as an agent; (d) The restrictions and conditions (including the furnishing of security by the licensee) subject to which a licence may be suspended or revoked and (f) the appeals, if any, against an order of suspension or revocation of a licence, and the period within which such appeals shall be filed."
(3.) According to the petitioners, nowhere under the Clauses of the sub-section 2 it has been prescribed that what would be the actual measure for the purpose of invitation of applications from the willing candidates to have the grant of customs house licence. Therefore, the regulations, if any, made contrary to the parent law is ultra vires . The petitioners have fulfilled all requisite qualifications as per the Clauses of Section 146 of the Act. Therefore, there cannot be any embargo in granting temporary licence. In spite of the same if the authority proceeds on the basis of the Regulations, the same has to be constructed as dehors the law. Introduction of the number of candidates as per the Regulation 4 of the Custom House Agents Licencing Regulations Act, 1984 is a new concept. If the authority concerned is allowed to continue in the manner, then monopoly of the business of the Customs House existing agents will spread over. Of course, this is not an employment but it is definitely a source of employment which cannot be avoided in the manner as prescribed. The petitioners are not scared to get testing their bona fide on being called for an interview as Regulations 4, 5, 6, 7 and 8 of the Customs House Agents Licencing Regulations Act, 1984. But the way they have been refused in limine the same is not encourageable at all.;