TMI Blog1999 (4) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... d him to sign Customs Bills of Entry and Shipping Bills and all other documents on behalf of the Licensee in connection with the said business. The said Sanjib Jha was also authorised to open a Bank Account for the said purpose. Allegedly the said Sanjib Jha also appeared in the examination concluded under Rule 9 of the said regulation and was granted `A-Class Licence' having succeeded in the said examination. It is stated that various transactions were entered into by the aforementioned Sanjib Jha in the years 1987-68 with regard whereto the 1st respondent was not informed. 3He, however, received the impugned Memo dated. 10-8-1998 in terms whereof he was informed that his licence bearing No. J-18 issued in favour of Jha Shipping Agency has been suspended with immediate effect in contemplation of an enquiry against the said concern. 4The learned trial Judge had gone into the merit of. the matter and found that a few charges had already been dropped subsequently. According to the learned trial Judge keeping in view the subsequent events, held that the reliefs prayed for require to be moulded and directed :- "Thus, unless within seven days of issuance of authenticated copies of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cutta High Court. In any event, contends Mr. Kapoor, that a bare perusal of memorandum dated 10-8-1998 would clearly demonstrate that sufficient reasons had been assigned to show that there existed a ground for suspension of the licence. 7Mr. Shibdas Banerjee, the learned Counsel appearing. on behalf of the respondents, on the other hand, submitted in the instant case that the plea of existence of alternative remedy had not been raised before the learned trial Judge by the Appellants herein although an Affidavit-in-Opposition had been filed on or about 21-12-1997. The learned Counsel pointed out that alleged pendency of an enquiry against the writ petitioner or his son has got nothing to do with the violation of the conditions of licence as contemplated under Regulation 14 of the said Regulation. It has further been submitted that as `immediacy of action' is required to be taken by suspending the licence, such an order must be supported by reasons recorded therefor and a bare perusal of the order would clearly show that neither any reasons has been assigned nor any materials has been brought on records before this court. The learned Counsel in support of the aforementioned conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not entertain any writ application where there exists an alternative remedy which is an efficious one. However, normally there are three exceptions to the said rule as has been pointed out by the Apex Court in Whirlpool Corporation v. Registrar of Trade Marks reported in 1998 (8) SCC 1 in the following terms :- "Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orders under Section 5A were passed before the Constitution and that as the Constitution was not retrospective the High Court could not exercise the jurisdiction which was for the first time conferred on it by Article 226 of the Constitution in respect of orders passed before January 26, 1950. It is not disputed that all the several demands which were quashed were made after the Constitution. For the reasons for which we have rejected the submission just now dealt with the argument in the present form must also be repelled." 18The said principle has again been reiterated in. Associated Electrical Industries (India) Private Ltd., Cal. v. Its Workmen, reported in AIR 1967 SC 284 wherein the Apex Court has laid down the law in the following terms :- "The orders of transfer have been made under Section 33B of the Industrial Disputes Act, 1947. This Section has been enacted in 1956 and it provides inter alia that the appropriate Government may by order in writing and for reasons to be stated therein withdraw any proceedings under this Act, pending before an Industrial Tribunal and transfer it for disposal to another Industrial Tribunal. The argument is that though the appropriate Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t construing the provision of Regulation 21(2) of the Customs House Agents Licensing Regulations, 1984 which confers power upon the Commissioner to suspend a licence where an enquiry against an agent is pending or contemplated held :- "A perusal of the order dated 9th June, 1998 passed by the respondent No. 2 clearly suggests that the power under Regulation 21(2) was resorted to apparently without spelling out in the impugned order as to whether any immediate action was necessary so as to suspend the licence of the appellants with immediate effect. Undoubtedly a plain reading of the Regulation 21(2) clearly stipulates that the requirement to take immediate action is a sine qua non to the suspension of a licence under Regulation 21(2) because such suspension is not by way of any punishment, as is contemplated by Regulation 21(2), but is required to cater to a situation warranting immediate action. The purpose of resorting to immediate suspension of a licence because of some immediate action is to immediately stop the activities of the clearing agent so as to disable him from taking any further action in the matter since, under a particular situation and under some given set of cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doubt that while passing such an order not only reasons are required to be recorded but the said order must prima facie show that there has been an application of mind and existence of sufficient reasons for passing such order as the same does not contemplate following of any detailed procedure and not even compliance of the principles of natural justice. 24.There cannot, however, be any doubt that once the. court exercising its power of judicial review, is satisfied that the order does not suffer from total non-application of mind nor it is a non-speaking one, it may refrain itself from going into the merit of the matter. 25.The order dated 10-8-1998 reads thus :-. "Whereas over the past few years the activities of M/s. Jha Shipping Agency and particularly Shri Sanjeeb Jha of the aforesaid CHA have come to the adverse notice of Directorate of Revenue Intelligence, Calcutta Zonal Unit. In a number of cases booked by DRI the subject CHA and in particular Shri Sanjeeb Jha has been found actively involved in the conspiracy with the importer for fabrication and forgery of import documents, clandestine disposal of the imported material and in evasion of duty payable under the Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-1998 has confessed that the clearance of goods of raw silk of M/s. Bombay Handlooms Pvt. Ltd. was undertaken on the basis of verbal instruction of the importer. Whereas from the prima facie investigation it is brought to light that M/s. Jha Shipping Agency in connivance with the importers took active part in manipulation of import consignments resulting in loss of huge Government Revenue. Whereas it appears that aforesaid person namely Shri Sanjeeb Jha and the Custom House Agent M/s. Jha Shipping Agency, 15/1, Strand Road, Clearing Agent's Hall, Custom House, Calcutta - 700 001 have failed to discharge their responsibilities/obligations cast on them under Regulation 14 of Custom House Agent's Licensing Regulations, 1984 amounting to gross misconduct within the meaning of the aforesaid Regulation. Whereas an enquiry against the aforesaid M/s. Jha Shipping Agency, the said Sanjeeb Jha is contemplated in exercise of powers vested in me under Regulation 21(2) of the Custom House Agent's Licensing Regulations, 1984, this being an appropriate case where immediate action is necessary as because the said CHA M/s. Jha Shipping Agency has violated the provision of Regulation and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be permitted to achieve a goal indirectly which he cannot achieve directly. 30Furthermore, a discretionary power has to be. exercised on sound legal principles and reasonably. Such a power cannot be exercised on whims or caprice. A reasonable exercise of power by a statutory authority should satisfy the test of reasonabless as adumbrated under Article 14 of the Constitution of India which would embrace within its fold taking of action by initiation of a proceeding within a reasonable time. In this age, whence communications can be exchanged in seconds from one corner of the world to other, it is inconceivable that materials gathered by the authorities concerned, could not be supplied to the Commissioner of Customs, Calcutta despite expiry of a period of eight months from the date of issuance of the said order. 31.In The Comptroller Auditor General v. K.S. Jagannathan reported in AIR 1987 SC 537, it has been held :- "There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public ..... 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