S. Velu Pillai, J.
1. The petitioner was doing business as Custom-House Broker subject to the approval or licence, which may be referred to hereafter as licence, made or granted in the year 1949, in pursuance of Section 202 of the Sea Customs Act, 1878, referred to hereafter as the Act, the material parts of which before amendment read as follows :
'202. No person authorised to act as an agent for the transaction of any business relating to the entrance or clearance of any vessel or the import or export of goods or baggage shall so act in any custom-house unless such authorization is approved by the Customs-collector.'
'Such office may, in case of misbehaviour of the person so authorized, suspend or withdraw such approval.....'
He had been obtaining a renewal of the licence from time to time, till the Assistant Collector of Customs declined by Ext. P5 to renew it after June 27, 1957. This petition is under Article 226 of the Constitution and is for quashing Ext. P5 and for the issue of a writ of mandamus, directing respondents 1 and 2, who are the Assistant Collector and the Collector of Customs, to return the licence granted to the petitioner, and to allow him to carry on his business as Custom-House Broker.
The first contention of the petitioner's learned counsel, that a licence issued under Section 202, as it was before amendment is valid for all time and needs no renewal, has to be overruled, as there is nothing in the section, which has deprived the authority, of the right, which must be deemed to be inherent in it, to fix or determine the period of the licence, the provision in it, for. the cancellation of the licence on the ground of misbehaviour, being only an enabling provision for such cancellation before the expiry of the period. Granting that under Section 202 the issue of the licence may be made permanently, there is nothing to indicate, that it cannot be made also temporarily.
Rules had been made by the Collector of Customs, Madras, for the grant of Clearing Agent's and Broker's licences, limiting the peripd of the licences for Clearing Agents to three years and for Brokers to two years. These rules purport to have been made under Section 202 of the Act before it was amended, but there was no provision in it, as after the amendment, for the making of rules. Even conce-ding that the general rule-making power under Section 9 of the Act is of no avail, and that therefore the rules are merely executive instructions devoid of any statutory basis, it seems to me that there being nothing to the contrary in Section 202, the duration of the licence may be fixed in the exercise of executive power.
This may be done either individually in the case of each licence, or generally by framing a rule regulating the issue of all such licences. The latter course was adopted in the present case. The petitioner himself seemed to be in no state of uncertainty about his rights, and got his licence renewed from time to time even before Section 202 was amended. The first contention of the petitioner is therefore overruled.
2. The petitioner's case is that he has a fundamental right under Article 19(1)(g) of the Constitution to carry on his business as Custom-House Broker, for which no licence is necessary, having obtained an irrevocable licence under Section 202 before its amendment. The contention of the respondents, as appears from the counter-affidavit, is that a licence is necessary, but that the petitioner is not entitled to it, Section 202 (1) as amended prescribes that a licence is necessary for any person to carry on business as a custom-house agent. Under the rules customhouse agents are of two categories, 'Clearing Agents' and 'Custom-House Brokers', the petitioner being of the latter category.
Under Section 202 (1), after a notified date, no person could act as a custom-house agent, except under a licence which may be issued. Section 202 (2) conferred the power on the Sea Customs Authority to make rules generally for carrying out the provisions of Section 202 (1), and in particular, for carrying out the purposes specified in Clauses (a) to (f). Such rules have been framed, but the preliminary notification under Section 202 (1) has not yet been made with the result that the contemplated prohibition against carrying on business as custom-house agent without a licence, has not yet come into force. The petitioner is therefore entitled to carry on his business, without a licence. He has a fundamental right under Article 19(1)(g) of the Constitution to carry on business as Custom-House Broker, whose duties are part of those specifically described in Section 202 (1) of the Act as pertaining to a custom-house agent, and are regulated by rules framed for the purpose.
3. The next question is, whether the petitioner can be granted any relief in this petition. The petitioner made his application for the renewal of the licence towards the end of the year 1956. By Ext. P5, the Assistant Collector of Customs ordered, that no renewal could be made as from June 18, 1957. The petitioner challenged this order on appeal before the Customs-Collector, but it was dismissed by Ext. P7 dated August 31, 1957. It was indicated in the preface to Ext. P-7, that the petitioner's remedy lay in moving the Central Government by a revision petition, and probably acting on this suggestion, the petitioner applied in revision to the Central Government by Ext. P8 on September 23, 1957.
The revision petition was dismissed by Ext. P9 on June 26, 1958, and this petition was preferred within one month of that date. For the decision of this case, it may be taken, that the revision petition to the Central Government was filed without jurisdiction, and for that reason it was contended for the respondents, that the time during which the revision petition was pending must be weighed against the petitioner, in assessing whether he is guilty of laches or not, in preferring this petition under Article 226.
4. The learned counsel for the petitioner however contended, that whatever be the rule of discretion observed by this court with respect to the time-lag in petitions under Article 226, in the case of the violation of a fundamental right that rule must be applied differently. This court has not considered this distinction in any of the decided cases to which my attention was invited, nor has the Supreme Court pronounced upon it. The learned counsel for the petitioner relied on Baghavendra Singh v. State of Vindhya Pradesh, AIR 1952 Vindh Pra 13 and Haji Suleman v. Custodian of Evacuee Property, Madhya Bharat, AIR 1954 Madh-Bha 173, in support of his contention.
In the former, it was observed, that an application for a writ in the nature of mandamus against an alleged invasion of a fundamental right can be made at any time, though in the particular circumstances of the case, on account of a delay of over two years the court did not interfere, and in the latter, the observation was, that the violation of a fundamental right is a continuing breach, which may be remedied at any time. The learned counsel for the respondents maintained that all such violations cannot be deemed to be so, but it is sufficient to state, that in the present case, the breach complained of in keeping the petitioner out of his business, can well be regarded as a continuing one.
In Sikri Brothers v. State of Punjab, AIR 1957 Punj 220, Bhandari, C. J., while not taking any exception to the above view, ruled that this consideration was not available, in the case before him, the fundamental right, the breach of which was complained of being subject to a reasonable restriction within the meaning of Article 19(6). These cases, in my opinion, do lend support to the proposition that fn cases involving the violation of fundamental rights the delay in applying under Article 226 must be viewed differently. The same view has been taken in cases of illegal taxation.
Moreover, the rule against interference under Article 226, when an alternative remedy is not availed of, has been relaxed where an infringement of a fundamental right is involved by the Supreme Court in Himmatlal Harilal Mehta v. State of Madhya Pradesh, AIR 1954 SC 403. In the absence of compelling authority to the contrary, I am of the view, that the discretion vested in this court in overlooking delay in the presentation of a petition under Article 226 must be exercised liberally, where a fundamental right is infringed. If so, the objection on the ground of delay in the present case has to be overruled.
5. It remains only to consider what relief can be granted to the petitioner. The orders impugned are Exts. P5 and P7, by which the petitioner was refused a licence. There being no provision now, under which the respondents can be compelled to issue a licence, the relief has to be denied to the petitioner. He is not also entitled to a writ of mandamus, compelling respondents 1 and 2 to return the licence to him. But as the petitioner has a fundamental right under Article 19(1)(g) to carry on his business as Custom-House Broker, the direction in Ext. P-10 circular that
'the Clearing Agents and Brokers of this Custom-House are accordingly hereby informed, that if they wish to continue to act as Clearing Agents from that date, they should submit their applications therefor, in the prescribed form....'
is lacking in validity. A direction will issue to respondents 1 and 2 to allow the petitioner to carry on his business as Custom-House Broker, until the requisite notification is made, if at all, under Section 202 (1) of the Act. This petition is disposed of as above, but without costs.