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2019 (9) TMI 363 - HC - CustomsPrinciples of Natural Justice - Revocation of CHA License - imposition of penalty - objection of the petitioner to the impugned proceedings is that the show cause notice was not issued within 90 days of receipt of the offence report and that therefore the limitation prescribed in sub-regulation (1) of Regulation 20 was not adhered to - condition precedent under Regulation 20 (4) for considering the request of the Customs Broker for cross-examination - cross-examination of witnesses - violation of the principles of natural justice. HELD THAT:- There are conflicting views of different High Courts, with Madras and Delhi being on one side and Bombay and Calcutta being on another side, on the question whether the Regulation is mandatory or directory. Therefore, it is now necessary to go into the root of the matter. The vexed question as to whether a particular provision in a statute is mandatory or directory has come up time and again before Courts under different circumstances. One of the earliest cases to draw the attention of the Constitution Bench of the Supreme Court was DATTATRAYA MORESHWAR VERSUS STATE OF BOMBAY [1952 (3) TMI 32 - SUPREME COURT] . The Court in that case created a dichotomy between (i) the provisions of statutes creating public duties and (ii) those conferring private rights. The provisions of statutes creating public duties were held to be directory and those conferring private rights were considered mandatory - In RAZA BULAND SUGAR CO. LTD. VERSUS MUNICLPAL BOARD, RAMPUR [1964 (10) TMI 82 - SUPREME COURT], another Constitution Bench of the Supreme Court, without referring to the dichotomy created in Dattatreya Moreshwar laid down certain independent tests. The petitioner contended that if the time prescribed by Regulation 20 (7) is not held to be mandatory, there can be no check on the power of the authority and they can pass orders at any time they like. In fact, he went to the extent of contending that the time limit prescribed in Regulation 20 (7) should be construed to mean the availability of the power only up to a period of time, beyond which the authority vested with the power cannot invoke his jurisdiction - We are unable to agree with the second part of the contention. It is only in cases where authorities or quasi-judicial bodies would become functus officio that the second part of the argument of Mr. P. Balaji Varma, learned counsel for the petitioner will hold good. To hold that the 1st respondent would loose his authority to pass an order of revocation of licence, upon the expiry of the period of licence, would be to say that he would become functus officio. That is an extreme proposition. If the tests laid down in Dattatreya Moreshwar, which have so far held the field, are applied, it would be clear (i) that the time limit prescribed in Regulation 20 (7) is for the performance of a public duty and not for the exercise of a private right; (ii) that the consequences of failure to comply with the requirement are not spelt out in Regulation 20(7) (iii) that no prejudicial consequences flow to the aggrieved parties due to the non-adherence to the time limit; and (iii) that the object of the Regulations, the nature of the power and the language employed do not give scope to conclude that the time limit prescribed is mandatory - Hence, we hold that the time limit prescribed in Regulation 20 (7) is not mandatory but only directory. It is curious that the 1st respondent took refuge under the obligation cast upon him to follow the principles of natural justice, for not adhering to the time schedule. But, at the same time, he rejected the request for cross-examination on the ground that the Regulation prescribes a time limit for passing orders. It was a contradiction in terms. The impugned order is vitiated for non-compliance with the principles of natural justice - petition allowed.
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