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TMI Blog2000 (1) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 urg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment 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. 4.Lot of discussions were held in respect of the source of such regulations. An emphasis was given on a Study Committee Report by both the parties. If this Court takes the Study Committee Report as a scheme of framing such regulations it would be much more easier to come to an appropriate conclusion in this respect. Such Study Committee report is available at page 94 of W.P. No. 1743 of 2000 one of the matters directed to be heard analogously with the first application. Paragraph 2 of the Report is very important in this regard which is as follows : "The Collector of Customs may invite, by means of public notification, application for the grant of licence to act as Customs House Agent keeping in mind the volume of work at the Board and the ability of the existing licences to cope with the work. The Collector noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of application : The Collector may invite applications for the grant of a licence to act as Customs Agents 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 at least two newspapers having circular in the area of his jurisdiction specifying therein in the last date of receipt of application. Such application shall be for clearance work within the jurisdiction of the said Collector." 7.Such Regulation 4 was substituted by Notification No. 44/97-Cus. (N.T.), dated 15th September, 1997 as follows :- "Invitation of application. - The Commissioner may invite applications for the grant of such number of licences as assessed by him, to act as Customs House Agents 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 at least two newspapers having circulation 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." 8.If we give a close look upon these regulations, we shall find t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to six months in deserving cases. Upon giving much more analysis ultimately it has also been quoted therein that Regulation 8 has proper check and balance in which the experience of work relating to clearance of goods through the Customs as well as the performance at the qualifying written or oral examination both have been taken note of. Therefore, the observations of the said judgment are very much necessary for the purpose of coming to an appropriate conclusion. 12.In considering such aspect one question came to the mind of the Court that is in respect of existence of the word 'may' under the Regulation 4 of the Customs House Agents Licencing Regulations, 1984. Such word 'may' is available before the amendment as well as after amendment. Therefore, grant of licence or granting of such number of licences are following from the word 'may'. Therefore, the word 'may' is to be decided on the basis of the proper perspective. It appears that Regulation 4 speaks about 'may' whereunder Regulation 5 which deals about applications for licence speaks about the word 'shall'. Regulation 7 speak for 'scrutiny of applications for licence' use the word 'may' under the Regulation. The same is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar' is interpreted as may or may not be every year or January every year then it has to be construed that the regulation was framed ignoring or bypassing the judgment of the Supreme Court in 1996 whereunder it has categorically observed 'shall be held annually.' Therefore, the restrictions as made by the authority in respect of fixation of numbers is hand made of justice of the administrators without due sanction of law. Mr. Sinha also relied upon a judgment AIR 1963 SC 1618 (State of Uttar Pradesh v. Jogendra Singh) to give an emphasis that the word 'may' generally does not mean 'must' or 'shall'. But it is settled that the word 'may' is capable of being meant as 'must' or 'shall' in the light of the context. 14.Where the discretion is conferred upon a Public Authority coupled with an obligation, the word 'may' which denotes discretion should be construed to mean a command. Sometimes the legislature uses the word 'may' out of its [deference] to the high status of authority on whom the power of application is intended to be conferred and imposed. Mr. Roychowdhury, on the other hand, contended before this Court that the Parliament cannot visualise the pros and cons at the time of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m 1985 (1) SCC 641 [Indian Express Newspapers (Bombay) Private Ltd. & Ors. v. Union of India & Ors.] as well as JT 2000 (2) SC 307 (Kunj Behari Lal Butall & Ors. v. The State of H.P. & Ors.) that subordinate legislation should follow the true import of the Parent Law. It is well settled that the legislature cannot delegate its essential legislative functions which consist in the determination or choosing of the legislative policy and of formally enacting that policy into binding rule of conduct. What is permitted is delegation of ancillary or subordinate legislative functions or what is fictionally called, a power to fill up the details. Before a rule can have the effect of a statutory It must conform to theprovision two conditions must be fulfilled, namely - (1) It must also comeprovisions of the statute under which it is framed and (2) within the scope and purview of the rule making power of the authority framing the rule. If either of these two conditions is not fulfilled, the rule so framed would be void. 17.Mr. Roychowdhury, Learned Senior Counsel, appearing on behalf of the authority relied upon a Supreme Court judgment reported in AIR 1954 SC 569 (Rajnarain Singh v. Chairma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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