Harish Tandon, J. - (1.) 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.
(2.) RELIANCE is placed by the petitioner on judgment of the Apex Court in the case of M/s. Raj Restaurant & Another v. Municipal Corporation of Delhi, reported in : (1982) 3 SCC 338 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 Corpn. Ltd. and Another v. Jahan Khan in : (2007) 10 Supreme Court Cases 88, 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. v. State of Uttar Pradesh and Others reported in : (2011) 13 Supreme Court Cases 733.
(3.) 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.;