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Girdharilal Vs. the Assistant Collector, Central Excise Division - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Writ Petn. No. 112 of 1972
Judge
Reported inAIR1974HP26
ActsGold Control Act, 1968 - Section 27(7); ;gold Control (Licenceing of Dealers) Rules, 1969 - Rule 2
AppellantGirdharilal
RespondentThe Assistant Collector, Central Excise Division
Appellant Advocate O.P. Sharma, Adv.
Respondent Advocate Kuldip Singh, Adv.
DispositionPetition dismissed
Cases ReferredAvari v. State
Excerpt:
- .....would be entitled to transact its business only at the premises for which it was granted a gold dealer's license. the endorsement recording the permission to sell the ornaments at fairs was treated as deleted. aggrieved by this order, the petitioner has applied for relief under art. 226 of the constitution.2. the petitioner contends that the assistant collector has no power to withdraw the permission originally granted to it for selling gold ornaments at the fairs. it is urged that the places where the fairs are held must be considered to be premises licensed under the gold control act, and by the impugned order the extent of the licensed premises has been abridged although the petitioner has given no reason within the contemplation of the act for such modification of his.....
Judgment:

R.S. Pathak, C.J.

1. The petitioner is a firm carrying on business at Kangra as a dealer in gold since 1945. It was granted a license for the purpose under Rule 126-E of the Defence of India Rules, 1962, and the license was renewed from year to year until the year 1967. Thereafter the license, it is said, was renewed under Section 27 of the Gold Control Act, 1968, It is presently valid for the year 1972. On July 25, 1971, the following endorsement was made by the Licensing Authority:

'Permitted movements of gold ornaments from licensed premises to the following places at the fairs for sale: (i) Kulu (ii) Rampur Bushair (iii) Chamba (iv) Bharmaur (v) Ghanihyara and (vi) Maclodganj.'

On March 2, 1972, the Assistant Collector, Central Excise Division, Chandigarh issued an order to the petitioner stating that pursuant to certain instructions from the Ministry the permission granted for sale of ornaments at fairs was withdrawn and that the petitioner would be entitled to transact its business only at the premises for which it was granted a Gold Dealer's License. The endorsement recording the permission to sell the ornaments at fairs was treated as deleted. Aggrieved by this order, the petitioner has applied for relief under Art. 226 of the Constitution.

2. The petitioner contends that the Assistant Collector has no power to withdraw the permission originally granted to it for selling gold ornaments at the fairs. It is urged that the places where the fairs are held must be considered to be premises licensed under the Gold Control Act, and by the impugned order the extent of the licensed premises has been abridged although the petitioner has given no reason within the contemplation of the Act for such modification of his license. In our opinion, the contention is without substance.

3. Section 27, (1) of the Gold Control Act (hereinafter referred to as 'the Act') prohibits a person from carrying on business as a dealer unless he holds a valid license. The license has to be in a prescribed form, is valid for the period specified therein and may be renewed from time to time, and is subject to such conditions and restrictions as may be prescribed. Section 27 (7) provides:

'(7) (a) The Administrator shall specify in each license granted to a dealer the premises in which such dealer shall carry on business and no other person shall carry on business as a dealer in the said premises.

(b) A licensed dealer shall not carry on business as such dealer in any premises other than the premises specified in his license.'

It is apparent that the Act attaches great importance to the premises at which the dealer carries on his business. The licensed dealer must confine his business to the premises specified in the license, and also no other person is permitted to carry on business in those premises. Section 28 also prohibits a licensed dealer from carrying on, unless authorised by the Administrator, business as a money lender or banker on the security of any article or ornament in the same premises in which he carries on business as a dealer and from permitting any other person to carry on such business as such dealer in such premises. Section 33 prohibits a licensed dealer from keeping in such premises any primary gold article or ornament which is not a part of his stock-in-trade or held by him in his capacity as a dealer.

4. In the Gold Control (Licensing of Dealers) Rules, 1969, Rule 2 provides that when considering an application for the issue of a license the Administrator must have regard among other matters to

'(c) whether the premises where the applicant intends to carry on business as a licensed dealer is suitable and secure for the carrying on of such business.' So also when considering an application for the renewal of a license Rule 3 requires that one of the conditions to be fulfilled is

'(c) that the premises where the applicant is carrying on business as a licensed dealer continues to be suitable and secure for the carrying on therein of such business.'

The form of the license indicates that permission is granted to a dealer to deal in gold for a specified period in the particular premises mentioned in the license.

5. It is clear that the statutory provisions and rules concerning the premises where a dealer carries on his business are designed for the purpose of exercising effective control over the business so that the object with which the Gold Control Act has been enacted is not circumvented and effective supervision is possible to ensure that the dealer complies with the provisions of the Act.

6. Learned counsel for the petitioner contends that the definition of 'premises' can ordinarily extend to open land and there is no reason why we should not hold that the petitioner's license extends to the fair grounds mentioned in the endorsement on the license. We are referred to Ardeshir H. Bhiwandiwala v. State of Bombay, AIR 1962 SC 29 = (1962 (1) Cri LJ 99) and Piara Singh v. The State, AIR 1960 Punj 538 = (1960 Cri LJ 1371) in support of the contention that the expression 'premises' extends to open land. It seems to us that the question before us is not whether a license under the Gold Control Act can be granted in respect of open land. The question is whether at the time of granting permission to sell gold at the fairs mentioned above the Licensing Authority did extend the 'licensed premises' already specified in the license to the places where those fairs are held. Upon a plain reading of the license and the endorsement made thereon, the conclusion must clearly be against the petitioner. By the license the petitioner was authorised to deal in gold in the premises mentioned therein, and the premises are described as:

'N. Main road.

E. Main Bazar.

W. Shop of L, Mohinder Chand Gupta.

S. Main Bazar.'

The endorsement declares that the petitioner is entitled to move gold ornamentsfrom the 'licensed premises' to the placeswhere the fairs mentioned therein are heldfor sale at those fairs. The endorsement interms contemplates that thoseplaces are distinct from the licensed premises. It seems, therefore, that the places where the fairs are held were never intended to be treated as 'licensed premises' for the purposes of the Act. That being so, there was no power in the Licensing Authority to grant permission to carry on business at those places. The Act requires that the dealer should carry on business in the licensed premises alone. The endorsement made by the Licensing Authority was without legal sanction and, indeed, opposed to the statute. It had no legal status whatever. Consequently, it was open to the Assistant Collector to delete the endorsement and deny permission to the petitioner to deal in gold ornaments at the fair grounds mentioned in the endorsement.

7. The next contention for the petitioner is that the Assistant Collector should have afforded an opportunity to the petitioner to be heard in the matter before cancelling the permission and deleting the endorsement. If such opportunity had been given, the petitioner could have shown that he had done nothing which could amount to an infringement of the statute or the conditions of the license and, therefore, there was no justification for the action proposed by the Assistant Collector. The contention proceeds upon a misconception of what has been done by the Assistant Collector. It is apparent that the permission v. as revoked and the endorsement deleted by him not because of any contravention ot the statute or of the conditions of the license, but because there was no statutory sanction for such permission. When clearly there was no power ab initio in the Licensing Authority to grant such permission no question arises of affording an opportunity to the petitioner to show cause against the action taken by the Assistant Collector. The permission being without legal sanction from the very beginning, it cannot be said that any legal right was ever created in favour of the petitioner under it and that before the petitioner could be divested of such a right ke was entitled to an opportunity to be heard in the matter.

8. The last contention on behalf of the petitioner is that acting on the permission granted the petitioner had invested money in manufacturing ornaments of designs peculiarly favoured at the fairs mentioned in the endorsement, and the petitioner would suffer great loss by reason of the revocation of the permission. It is urged that in the circumstances the respondent is estopped from revoking the permission. We think it sufficient to say that no estoppel can be pleaded in the present case. We have already observed that the permission could never have been granted ab initio because it was not sanctioned by the statute and in fact was opposed to it. By representing to the petitioner that it could move its goods and sell them at the fairs mentioned in the endorsement it cannot be said that the Licensing Authority had raised an estoppel against itself. It could not create a state of things which it was legally disabled from creating. See Re. Stapleford Colliery Co., Barrow's Case, (1880) 14 Ch D 432; Anctil v. Manufacturer's Life Insurance Co., (1899) AC 604 and Bradshaw v. McMullan, (1920) 2 Ir Rep 412 HL. In the last case, Lord Shaw of Dunfermline declared:

'I do not see my way to sanction the application of this specific plea of res judi-cata or the more general plea of estoppel, to any transaction which is in plain defiance of statutory information.'

In India, the law is well settled that these can be no estoppel against an Act of the Legislature. In Biswanath v. Sudhir, AIR 1961 Cal 389, the Calcutta High Court held that a trade license to hawkers under Sections 218 and 219 of the Calcutta Municipal Act did not confer any right on them to encroach on public streets and footpaths, and that neither the police authorities, nor the Corporation, and not even the Government had any right to declare any part of a public street or public footpath to be a hawkers' corner. See also Avari v. State, 1962 CWN 278, where it was laid down that the interpretation of an Act by a Government officer and the issue of a letter on the basis of such wrong interpretation could not estop the Government from claiming enforcement of the provisions of the statute.

9. As none of the contentions have any force, the writ petition fails and is dismissed with costs.


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