@JUDGMENTTAG-ORDER
1. The sole point that arises for consideration herein is :-
Whether Regulation 25(2) of the Customs House Agents Licensing Regulations 1984, bars recognition of more than one Association in the
Customs Station ?
2. The point has to be answered positively in favour of the petitioner as no other interpretation is possible on the said Regulation.
3. Heard Mr. R. Gandhi, learned Senior Counsel appearing for the petitioner, Mr. V.T. Gopalan, learned Additional Solicitor General appearing
for the respondent No. 1 and Mr. N.R. Chandran, learned Senior Counsel appearing for the second respondent.
4. In this writ petition we are not concerned about the motive or reason or purpose for which the petitioner-Association has been formed as it is
alien to the point that arises for consideration. It may be that the petitioner-Association might have been formed by the erstwhile members of the
second respondent-Association either out of personal difference or out of their being disgruntled or deprivation of their dominance. These factors
are not relevant for the purpose of the present writ petition though such an objection was sought to be advanced by the Senior Counsel appearing
for the second respondent.
5. The petitioner prays for the issue of a writ of certiorarified mandamus calling for the records relating to the order of the respondent in Ref.: Mis.
106/99/enquiry dated 8-2-2000, quash the same and consequently direct the respondent to accord recognition to the petitioner association under
Regulation 25(2) of Customs House Agents'' Licensing Regulations (CHALR), 1984.
6. The said writ petition is being opposed by the first respondent who had passed the impugned order as well as the second respondent, who had
got itself impleaded as the existing Association of the Customs House Agents at Chennai. We are not concerned with the inter rivalry between the
two associations nor we are concerned with rivalry between two set of Custom House Agents. Therefore, it is unnecessary to go into those
controversies.
7. Section 2(13) of the Customs Act, 1962 defines the expression ""Customs Station"". In respect of such Customs Stations, ""Customs House
Agents"" are licenced under the Customs House Agents Licensing Regulations, 1984 to act as Agents for the transaction of any business relating to
entry or departure of conveyances or the import or export of goods at any Customs Station. Section 146 of the Act provides that 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 a licence granted in this behalf in accordance with the Regulations. In exercise of powers conferred u/s 146(2), the Central
Board of Excise and Customs has made Regulations for the purpose of carrying out the provisions of Section 146.
8. For convenience, these regulations shall be referred to as CHAL Regulations. Regulation 4 provides that the Commissioner may invite
applications for the grant of licences as assessed by him to act as Customs House Agents. Regulation 5 prescribes the application form for a
licence to act as a Customs House Agent. Regulation 6 prescribes the condition to be fulfilled by the applicant. Regulation 7 provides for the
scrutiny of applications for licence. Regulation 8 provides for grant of temporary licence. Regulation 9 provides for the exemption of the
application. Regulation 10 provides for the grant of regular licence. Whenever a licence is rejected by the Commissioner, any person aggrieved by
the order passed under Sub-regulation (3) of Regulation 10 may represent to the Chief Commissioner of Customs against such order. Regulation
12 prescribes the period of validity of a regular licence. Regulation 13 provides that such licence is not transferable. Regulation 14 prescribes the
obligations of Customs House Agent. Regulation 21 provides for suspension or revocation of licence. Regulation 23 provides the procedure for
suspending or revoking a licence under Regulation 21. Sub-regulations (6), (7) and (8) of Regulation 23 provides for appeals and revisions as
against specific orders passed under the said Regulations.
9. Sub-regulation (1) of Regulation 25 provides that the Commissioner may from time to time and in consultation with the recognised Custom
House Agents'' Association, if any, registered at a Customs Station, notify the rates that may be charged by a Customs House Agent for his service
rendered in relation to clearance of goods and conveyance through Customs. The Custom House Agent shall strictly conform to the rates so
notified. The role of the Association, if any, is for the limited purpose of consultation by the Commissioner while fixing the rates that may be
charged by a Custom House Agent for the services that may be rendered by him in relation to clearance of goods and conveyances through
Customs. There is no other role or scope for such a Customs House Agents'' Association under the Customs Act or under the Customs House
Agents Licensing Regulations, 1984.
10. Sub-regulation (2) of Regulation 25 mandates that a Custom House Agent shall enroll himself as a Member of the Custom House Agents''
Association, if there is one registered in the Customs Station and recognised by the Commissioner of Customs. Sub-regulation (2) of Regulation
also mandates that each Custom House Agent shall become a member of the recognised Custom House Agents'' Association and the recognition
being accorded by the Commissioner of Customs in the Customs Station.
11. A reading of Regulations, there is nothing in Sub-regulation (2) of Regulation 25 which would indicate that there shall not be more than one
Custom House Agents'' Association in a given Customs Station. In other words what is required being a Custom House Agent should be a
member of the Customs House Agents'' Association, if there is one and if it is registered in the Customs Station and which is recognised by the
Commissioner of Customs. Sub-regulation (2) of Regulation 25 nowhere indicates, nor it is the object of the said Regulation, nor it is the
intendment of the said regulation that there shall be only one Association for Custom House Agents in a Customs Station.
12. A reading of the said Regulations, in my considered view permits recognition of one or more Customs House Agents'' Association in a
Customs Station and the Commissioner of Customs has neither the authority, nor jurisdiction to restrict the number of such Associations in the
Customs Station. It is the only interpretation that is permissible on the language of Sub-regulation (2) of Regulation 25.
13. It is cardinal principle that the words in the provisions are first understood in the natural, ordinary or popular sense and sources and sentences
are construed according to their grammatical meaning, unless it leads to some absurdity or senseless meaning in the context or in the object of the
statute to suggest the contrary. It is not permissible to add words or to fill in gap or lacuna while construing the statutory provisions, when the
words of the statutory provision are in its precise and unambiguous, no more is necessary than to expound those words in their natural and
ordinary sense, the words themselves in such cases best in declaring the intention of the Legislature or rule making authority, as the case may be.
14. It is equally well settled that the paramount duty of the judicial interpreter is to put upon the language of the Legislator or the rule making
authority honestly and its plain and rational meaning to promote its object. The language of the sub-regulation in the present case is not capable of
two meaning and the plain meaning is the accepted principles of interpretation.
15. On a reading of the sub-regulation and when the language in the said regulation is clear, it is unnecessary to examine any other aspect of the
matter. Sub-regulation (2) of Regulation 25 is an enabling provision which enables the Commissioner to recognise an Association of Agents and it
cannot be so interpreted as to hold it as a restrictive one.
16. It is fairly stated by the learned Additional Solicitor General as well as by Mr. N.R. Chandran, learned Senior Counsel appearing for the
second respondent that there is no other statutory provision or Regulation or Notification whatever which bars recognition of more than one
Association, nor there is any executive instructions or guidelines exist even as of today as to the recognition of such Associations in the Customs
Station by the Commissioner of Customs. Therefore, it is clear and legally permissible that in a Customs Station there could be one or more
Customs House Agents'' Association.
17. The right to form an Association is guaranteed by the Constitution. But the right to recognition of such Association is regulated by the statutory
provisions or guidelines, if any, prescribed in that behalf. But admittedly there is no provision or regulation or notification or guidelines, much less,
executive instructions providing that in one Customs Station, there shall be only one Association and that the Commissioner has no power to
recognise more than one Association. It is also fairly stated that there is no guidelines or standards prescribing minimum or maximum number of
Associations. Hence petitioner-Association is entitled to recognition or approval. Therefore, it follows that there could be one or more recognised
Association in a Customs Station.
18. In the present case it is not necessary to refer to the details of applications submitted by the petitioner-Association or its constitution, nor it is
essential to refer to the number of members who are on the rolls of the petitioner-Association. The petitioner is admittedly an Association which
has been formed validly. What we are concerned is the rejection of their application for recognition in terms of Sub-regulation (2) of Regulation 25.
The first respondent while rejecting the application for recognition applied for, had assigned the sole reason, which reads thus :-
Since there appears to be no provision under the CHALR, 1984, for recognition of another C.H.A. Association, your request to accord
recognition to your newly formed Association, which is similar to the one already accorded recognition and exists as on date, could not be
acceded to.
19. This solitary reason cannot be sustained at all as there is nothing in Regulation 25(2) which bars recognition of more than one or two
Associations of Customs House Agents'' Association in a Customs Station. Further the first respondent or for that matter the Commissioner of
Customs could compel a particular Custom House Agent to become a member of the particular Association. Such a direction or compulsion
would interfere with the fundamental rights to form an Association as guaranteed by Art. 19(1)(c) of the Constitution. There is no provision which
compels a Custom House Agent to become a member of the Association, nor there is anything which warrants that an Agent shall be allowed to
secure a licence or function as Custom House Agent unless he becomes a member of the Customs House Agents'' Association in the Customs
Station.
20. Regulation 25 merely enables the Customs House Agents'' Association, if any, registered will have a right to make a representation or to be
consulted by the Commissioner of Customs when the rates are sought to be fixed by the Commissioner and it has no other role to play, nor it has
any other scope either under the Customs House Agents Licensing Regulation, 1984 or under the Customs Act or the Rules framed thereunder.
21. There could be no compulsion by the Commissioner of Customs that a particular Agent shall become a member of the Association, nor he
could restrict the number of such Associations in a Customs Station. There is no enabling provision at all which would enable the Commissioner of
Customs to restrict the number of Customs House Agents'' Association in a Customs Station. Recognition of Association merely enables the said
Association for being consulted or the members of the Association or office bearers of the Association to be afforded an opportunity of
consultation at the time of fixing the rates or charges.
21. In the light of the said provision it is clear that the solitary reason assigned by the first respondent cannot be sustained in law. From the files, as
fairly stated, no other reason is available, nor there is any guideline which prescribes any one or more criteria for recognition of a Customs House
Agents'' Association.
22. In the circumstances the petitioner is entitled to the rule nisi being made absolute and consequential direction is being issued as prayed for.
23. Mr. N.R. Chandran, learned Counsel for the second respondent though adopted the arguments advanced by the learned Additional Solicitor
General, additionally raised the contention that the order is appealable under the Act and therefore without exhausting the appeal remedy the
petitioner-Association cannot maintain the present writ petition. This again is a contention advanced out of frustration. The provisions of the
Customs Act namely in particular Chapter XV provides for appeals. Section 128 provides for an appeal to the Collector (Appeals) which would
mean that an order should have been passed under the provisions of the Act. It was contended that an order passed under the Regulations is also
appealable u/s 128. This in my considered view cannot be sustained. The order impugned is not an order passed with respect to adjudication of
the liability to pay Customs duty or other adjudication or order which is normally appealable under Chapter XV of the Customs Act, 1962. An
order passed under Sub-regulation (2) of Regulation 25 is not an order passed under the Customs Act, but it is under the Regulation.
24. It is also to be pointed out that the very Customs House Agents'' Licensing Regulations, 1984 provides for an appeal being preferred either
under Sub-regulation (4) or (5) of Regulation 10 when a licence applied for is declined or for a revision or suo moto exercise of power. Regulation
23 provides for an appeal or revision or suo motu modification of powers by the Appellate Authority as indicated therein in respect of suspension
or cancellation or rejection of licence issued under the Customs House Agents Licensing Regulation, 1984.
25. This would show that in respect of an order or direction issued under the Customs House Agents Licensing Regulations, 1984, unless the
regulations themselves provide for appeal, the order passed is not appealable and the appeal is not maintainable as sought to be con tended by Mr.
N.R. Chandran, learned Senior Counsel appearing for the second respondent. In this case as against the order rejecting the application seeking for
recognition of the petitioner-Association under Sub-regulation (2) of Regulation 25 neither a revision, nor an appeal, nor a suo MOTU power for
modification is pro-vided for. Hence there is no other alternative for the petitioner except to come before this Court invoking Article 226 of the
Constitution.
26. It is well settled by now that an appeal is a creature of the statute. Right to appeal has to be exercised by the persons permitted by the statute,
subject to such conditions as may be provided or prescribed regarding filing of such appeals. Whether any right of appeal is conferred on any one
against the orders passed under the Customs House Agents Licensing Regulations, 1984 in the hierarchy of proceedings before the authorities has
to be judged from the statutory settings of the Act and not de horse with them. Thus unless specifically provided or an Appeal is provided for in the
Act we cannot infer that it is an appealable order and the contention to the contra advanced by the learned Senior Counsel appearing for the
second respondent cannot be sustained at all and it is overruled.
27. Excepting the solitary objection, as seen from the impugned order there is no other objection or deficiency or disqualification or requirement to
comply with any other rule is being pointed out, it follows automatically that the petitioner-Association is entitled for the issue of mandamus as well.
28. In the circumstances, the writ petition is allowed, the impugned order passed by the first respondent is quashed and consequently there will be
a direction to the first respondent to accord recognition to the petitioner- Association in terms of Regulation 25 of the Customs House Agents''
Licensing Regulations, 1984 within eight weeks from the date of communication of this order and consult the said Association under Regulation
25(1). The rule nisi is made absolute. The parties shall bear their respective costs. Consequently, connected W.M.P. is dismissed.
