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Hasmukhlal Amritlal Mehta and Others Vs. N.B. Sonavene and Others - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtMumbai High Court
Decided On
Case NumberMisc. Petition No. 421 of 1978
Judge
Reported in1982(10)ELT67(Bom)
ActsGold Control (Licensing of Dealers) Rules, 1969 - Rule 2
AppellantHasmukhlal Amritlal Mehta and Others
RespondentN.B. Sonavene and Others
Excerpt:
.....satisfied and it was not open for the collector to reject the application on the ground of lack of experience. the collector was duty bound to proceed on the basis that the requirement of rule 2(b) was satisfied and the only question which the collector could have considered was whether the other conditions provided by rule 2 were complied with or not. the collector has clearly committed an error apparent on the face of the record and the impugned order cannot be sustained. 7. accordingly, the rule is made absolute and the impugned order dated march 2, 1978 is set aside and the collector is directed to dispose of the application for grant of licence before november 16, 1981. the collector shall proceed on the basis that the petitioners have satisfied the requirements of rule 2(b) and..........as provided by the gold control (licensing of dealers) rules, 1969 (hereinafter referred to as the rules). rule 2 provides that on receipt of the application for the issue of a licence, the administrator shall consider the matter set out in that rule. the two main requisites which are required to be considered by the administrator are that the person applying for licence had an experience with regard to the dealing in or making, manufacturing, preparing, repairing or polishing of ornaments and the premises where the applicant intends to carry on the business as a licenced dealer is suitable and secure for carrying on of such business. there are some other conditions to which no reference is required to be made.3. the petitioner no. 1 claimed that he was working as a partner in a concern.....
Judgment:

1. By this petition filed under Article 226 of the Constitution of India, the petitioners are challenging the legality of the order dated March 2, 1978 passed by the Collector of Customs (Preventive), Bombay, refusing to grant the application for gold dealers licence by holding that the petitioners have no experience of dealing in gold.

2. The petitioners are partners of a concern know as M/s. Royal Plastic Box Manufacturing Co. and are doing the business of manufacturing of jewellery boxes as 11, Third Agiary Lane, Zaveri Bazar, Bombay 3. The petitioners applied for a licence to deal in gold in the prescribed form or November 30, 1970. Along with the application, the petitioners deposited the requisite amount as provided by the Gold Control (Licensing of Dealers) Rules, 1969 (hereinafter referred to as the Rules). Rule 2 provides that on receipt of the application for the issue of a licence, the Administrator shall consider the matter set out in that Rule. The two main requisites which are required to be considered by the Administrator are that the person applying for licence had an experience with regard to the dealing in or making, manufacturing, preparing, repairing or polishing of ornaments and the premises where the applicant intends to carry on the business as a licenced dealer is suitable and secure for carrying on of such business. There are some other conditions to which no reference is required to be made.

3. The petitioner No. 1 claimed that he was working as a partner in a concern known as M/s. Kum Kum Jewellers from the years 1957 to 1966 and has a large experience of dealing in gold ornaments. Petitioner No. 1 claims to have retired from the concern M/s. Kum Kum Jewellers and thereafter carried on business of preparation of jewellery boxes till the date of filing the application for licence. The application was considered by the Administration and was rejected by an order dated August 10, 1971 on the ground that the petitioners have failed to establish that they have experience of dealing in gold ornaments, and therefore, the requirement of Rule 2(b) of the Rules was not complied with. The order of the Administrator was confirmed in appeal by the Gold Control Administrator, New Delhi on April 2, 1972. The petitioner carried a revision application before the Government of India, Department of Revenue and Banking, and the revision application was allowed by the Special Secretary to the Government of India by an order dated June 25, 1977. The revisional authority came to the conclusion that the petitioner No. 1 had an experience while working with M/s. Kum Kum Jewellers and the authorities below were in error in rejecting the application on the ground of lack of experience. On the strength of that finding the revisional authority remanded the proceedings to the Collector, Bombay for a decision as to whether other conditions prescribed under Rule 2 were satisfied.

4. Curiously on remand, the Collector of Customs (Preventive), Bombay, by his order dated March 2, 1978 rejected the application on the ground that the petitioner had no experience in dealing with gold ornaments, and therefore, the requirement of Rule 2(b) was not complied with. The petitioners have approached this Court by filing this petition to challenges the legality of that order.

5. Shri Nain, the learned counsel appearing in support of the petition, very rightly contended that the Collector has totally bypassed the order passed by the revisional authority while remitting the proceedings back for a fresh decision. The learned counsel is right in his submission that the revisional authority has made it clear that the proceedings are remitted back to consider whether other requirements of Rule 2 were satisfied and it was not open for the Collector to reject the application on the ground of lack of experience. Surely the Collector was bound by the order passed by the revisional authority and it was not open for the Collector to reconsider whether the petitioners had sufficient experience for grant of licence or otherwise. The Collector was duty bound to proceed on the basis that the requirement of Rule 2(b) was satisfied and the only question which the Collector could have considered was whether the other conditions provided by Rule 2 were complied with or not. The Collector has clearly committed an error apparent on the face of the record and the impugned order cannot be sustained.

6. Shri Nain submits that the application filed by the petitioners in the year 1970 is pending for the last 11 years and the delay is purely because of an unsustainable view taken by the Collector on remand, and therefore, the Collector should be directed to pass the appropriate orders in a very short period of time. In my judgment, the submission is correct. I propose to direct the Collector to dispose of the application on merits within a period of four weeks from to-day.

7. Accordingly, the rule is made absolute and the impugned order dated March 2, 1978 is set aside and the Collector is directed to dispose of the application for grant of licence before November 16, 1981. The Collector shall proceed on the basis that the petitioners have satisfied the requirements of Rule 2(b) and would consider whether other requirements of Rule 2 are satisfied or not. The Collector is specifically directed not to reopen the issue of experience of the petitioners and decide only as regards the satisfaction of other conditions.

As the order passed by the Collector is entirely unsustainable, the respondents shall pay the costs of the petitioners.


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