Udhal Singh Verma Vs. Collector of Customs and Central - Court Judgment

Excerpt:
1. the impugned order rejects an application filed by the appellant for gold dealers licence on 21.10.1980. it was later on amended on 13.10.1981 due to change of the proposed business premises. the appellant is a certified goldsmith since october 1970. there are two main grounds on which the appellant's application for gold dealers licence has been rejected. first one is that the appellant had been penalised in 1979 to the extent of rs. 500/- for improper maintenance of accounts vide order-in-appeal passed by the collector of central excise, meerut. accordingly, the adjudicating authority has held that in terms of rule 2(e)(i) of the gold control (licensing of dealers) rules, 1969 (hereinafter referred to as the rules) the appellant would not be entitled to a gold dealers licence. secondly it has also been held that the appellant does not fulfill the condition in proviso (b) to rule 2(f) of the said rules inasmuch as the adjudicating authority has felt that his educational background is not sufficient to generate a belief of reasonable grounds that the appellant would be able to discharge properly his obligations and functions as a licensed dealer.this finding has been made by the learned adjudicating authority on the basis of certain discrepancies noticed in the gs-13 register maintained by the appellant and pointed out in the impugned order in detail.2. learned consultant for the appellant, on the other hand, has stated, in so far as the first reason given by the learned adjudicating authority is concerned, is that the said offence took place as early as 1978. it was a petty offence which resulted into a penalty of rs. 500/- only. there has been no offence against the appellant after that. the appellant did not go in further appeal because the final amount of penalty imposed was petty amount. further, the learned consultant emphasises that the omission in the case in which he was imposed penalty was of a trivial nature. in any case, it is the contention of the appellant that the case in which the penalty was imposed on him in 1979 should not debar the appellant for all time to come in consideration of his application for gold dealers licence.as regards the second reason given by the learned adjudicating authority, it has been asserted by the learned consultant for the appellant that the very scheme of rules stipulates that a positive approach should be adopted in granting gold dealers licences to the persons enumerated in various provisos (a) to (f) in rule 2 (f) of the said rules. rule 2(f), according to the learned consultant, gives a restrictive approach to be adopted in granting licence for gold dealers but this restrictive approach has been relaxed for different persons enumerated in various clauses of the proviso to rule 2 (f). minor commissions and omissions in maintenance of accounts as have been detailed in the impugned order should not lead the authorities to conclude that the appellant would not be able to discharge his duties as a licensed gold dealer. human conduct is not infallible. even the existing licensed gold dealers continue to commit errors and omissions in maintenance of accounts and yet their licences are not revoked. all the discrepancies pointed out by the learned adjudicating authority, as emphasised by the learned counsel for the appellant, are of minor nature otherwise the appellant would have been called to explain by a specific issue of show cause notice for non-maintenance of accounts and penalties would have been imposed on him.it has also been urged by the learned consultant that sub-section 6(a) of section 27 of the gold control act (gca) read with rule 2 of the said rules stipulates that the administrator shall have regard to the matters enumerated in that rule before a licence is issued to a person.the expression 'shall have regard' cannot be taken as conditions, fulfilment of which is imperative before a licence can be granted. this would be apparent if phraseology of rule 2 (matters to which regard shall be had before issuing the licence) is contrasted with the phraseology of rule 3 (conditions for the renewal of a licence) of the said rules. while rule 3 stipulates the conditions which must be fulfilled, rule 2 merely spells out the various matters to which the administrator shall have regard before issuing the licence. the authorities below, according to the learned counsel, have fallen into error in considering the expression 'shall have regard' as binding and as imperative as a condition imposed statutorily.3. learned sdr, on the other hand, has reiterated the findings of the lower authorities. a written note spelling out the comments of the collector-the respondent herein-submitted by the learned sdr during the course of arguments merely reiterates the various findings of the original authority.4. we have carefully considered the pleas advanced on both sides. we find sufficient force in the arguments of the learned counsel for the appellant that various clauses of the proviso to rule 2(f) of the said rules is to be read in a more positive manner because these clauses are relaxations to the restrictive approach spelt out in rule 2(f).therefore, minor discrepancies pointed out in detail by the learned deputy collector should not debar the appellant from obtaining the gold dealers licence. after all he has been carrying on the work as a certified goldsmith and maintaining the accounts to the satisfaction of the authorities barring one instance in which he has been imposed a minor penalty of rs. 500/- as early as 1979. a few examples cited by the learned adjudicating authority of improper maintenance of account by the appellant/certified goldsmith after a pains-taking scrutiny of the register for the two years from 11a.1980 to 28.6.1982 are not enough impediments to come to a finding that the appellant would not be able to discharge the obligations and functions as a licensed dealer.in the appeal memorandum most of these discrepancies have been adequately explained. accordingly, we are of the view that the appellant has sufficient educational background to believe that he would be able to discharge properly his obligations and functions as a licensed dealer. even otherwise as rightly contended by the appellant a licensed dealer can always engage a paid accountant who could keep the accounts in a much proper shape since licence dealers are not debarred from engaging such accountants.we also find sufficient force in the plea of the learned counsel of the appellant that the expression 'shall have regard to' should not be taken as imperative. we observe that a similar interpretation has been upheld in a decision of calcutta high court in the case of province of bengal v. pran kissen, law & company. in this connection, extracts from venkataramaiya's law lexicon and legal maxims from page 2218 vol. iii are reproduced below :- "the calcutta high court in the case of the province of bengal v. pran kissen law and company 54 c.w.n. 801 in construing the expression 'shall have regard to the provisions of section 23(1) of the land acquisition act" as used in section 19(1) (e) of the defence of india act has observed as follows: "this requirement only implies that the provisions of the land acquisition act must be taken into consideration. it does not mean that the arbitrator is strictly bound by the terms of section 23(1) of the land acquisition act." reliance placed by the learned adjudicating authority on the observation of the hon'ble high court of allahabad in the case of prem nath khanna v. collector of central excise, meerut is not well founded because the case before that court was of a person against whom the proceedings were pending and who had applied for a licence. the facts of that case are not relevant to the facts of the present case.observations of the hon'ble high court to the effect- "it is true that under rule 2, a licence cannot be granted to a person who has been convicted for an offence or any penalty has been imposed on him under the gold (control) act, 1968 or under any other law for the time being in force relating to gold but there is no bar against the consideration of an application for grant of a licence during pendency of adjudication proceedings", are to be treated in the nature of obiter.ratio-decidendi of the case is to quote the words of the hon'ble court, "his (assistant collector's) plea that since adjudication proceedings are pending, application for grant of licence could not be considered is not tenable in law". it is also clear that the hon'ble court had no occasion to interpret the scope of the expression 'shall have regard to' occurring in rule 2 of the said rules. in this view of the matter imposition of penalty of rs. 500/- on the appellant way back in 1979 for a minor offence should not debar the appellant from obtaining the gold dealers licence.5. in view of the foregoing discussion, we allow the appeal and direct that the appellant should be granted a gold dealers licence.

Judgment:
1. The impugned order rejects an application filed by the appellant for gold dealers licence on 21.10.1980. It was later on amended on 13.10.1981 due to change of the proposed business premises. The appellant is a certified goldsmith since October 1970. There are two main grounds on which the appellant's application for gold dealers licence has been rejected. First one is that the appellant had been penalised in 1979 to the extent of Rs. 500/- for improper maintenance of accounts vide order-in-appeal passed by the Collector of Central Excise, Meerut. Accordingly, the adjudicating authority has held that in terms of Rule 2(e)(i) of the Gold Control (Licensing of Dealers) Rules, 1969 (hereinafter referred to as the Rules) the appellant would not be entitled to a gold dealers licence. Secondly it has also been held that the appellant does not fulfill the condition in proviso (b) to Rule 2(f) of the said Rules inasmuch as the adjudicating authority has felt that his educational background is not sufficient to generate a belief of reasonable grounds that the appellant would be able to discharge properly his obligations and functions as a licensed dealer.

This finding has been made by the learned adjudicating authority on the basis of certain discrepancies noticed in the GS-13 register maintained by the appellant and pointed out in the impugned order in detail.

2. Learned Consultant for the appellant, on the other hand, has stated, in so far as the first reason given by the learned adjudicating authority is concerned, is that the said offence took place as early as 1978. It was a petty offence which resulted into a penalty of Rs. 500/- only. There has been no offence against the appellant after that. The appellant did not go in further appeal because the final amount of penalty imposed was petty amount. Further, the learned consultant emphasises that the omission in the case in which he was imposed penalty was of a trivial nature. In any case, it is the contention of the appellant that the case in which the penalty was imposed on him in 1979 should not debar the appellant for all time to come in consideration of his application for gold dealers licence.

As regards the second reason given by the learned adjudicating authority, it has been asserted by the learned consultant for the appellant that the very scheme of Rules stipulates that a positive approach should be adopted in granting gold dealers licences to the persons enumerated in various provisos (a) to (f) in Rule 2 (f) of the said Rules. Rule 2(f), according to the learned consultant, gives a restrictive approach to be adopted in granting licence for gold dealers but this restrictive approach has been relaxed for different persons enumerated in various clauses of the proviso to Rule 2 (f). Minor commissions and omissions in maintenance of accounts as have been detailed in the impugned order should not lead the authorities to conclude that the appellant would not be able to discharge his duties as a licensed gold dealer. Human conduct is not infallible. Even the existing licensed gold dealers continue to commit errors and omissions in maintenance of accounts and yet their licences are not revoked. All the discrepancies pointed out by the learned adjudicating authority, as emphasised by the learned counsel for the appellant, are of minor nature otherwise the appellant would have been called to explain by a specific issue of show cause notice for non-maintenance of accounts and penalties would have been imposed on him.

It has also been urged by the learned consultant that Sub-section 6(a) of Section 27 of the Gold Control Act (GCA) read with Rule 2 of the said Rules stipulates that the administrator shall have regard to the matters enumerated in that Rule before a licence is issued to a person.

The expression 'shall have regard' cannot be taken as conditions, fulfilment of which is imperative before a licence can be granted. This would be apparent if phraseology of Rule 2 (matters to which regard shall be had before issuing the licence) is contrasted with the phraseology of Rule 3 (conditions for the renewal of a licence) of the said Rules. While Rule 3 stipulates the conditions which must be fulfilled, Rule 2 merely spells out the various matters to which the administrator shall have regard before issuing the licence. The authorities below, according to the learned counsel, have fallen into error in considering the expression 'shall have regard' as binding and as imperative as a condition imposed statutorily.

3. Learned SDR, on the other hand, has reiterated the findings of the lower authorities. A written note spelling out the comments of the Collector-the respondent herein-submitted by the learned SDR during the course of arguments merely reiterates the various findings of the original authority.

4. We have carefully considered the pleas advanced on both sides. We find sufficient force in the arguments of the learned counsel for the appellant that various clauses of the proviso to Rule 2(f) of the said Rules is to be read in a more positive manner because these clauses are relaxations to the restrictive approach spelt out in Rule 2(f).

Therefore, minor discrepancies pointed out in detail by the learned Deputy Collector should not debar the appellant from obtaining the gold dealers licence. After all he has been carrying on the work as a certified goldsmith and maintaining the accounts to the satisfaction of the authorities barring one instance in which he has been imposed a minor penalty of Rs. 500/- as early as 1979. A few examples cited by the learned adjudicating authority of improper maintenance of account by the appellant/certified goldsmith after a pains-taking scrutiny of the register for the two years from 11A.1980 to 28.6.1982 are not enough impediments to come to a finding that the appellant would not be able to discharge the obligations and functions as a licensed dealer.

In the appeal memorandum most of these discrepancies have been adequately explained. Accordingly, we are of the view that the appellant has sufficient educational background to believe that he would be able to discharge properly his obligations and functions as a licensed dealer. Even otherwise as rightly contended by the appellant a licensed dealer can always engage a paid accountant who could keep the accounts in a much proper shape since licence dealers are not debarred from engaging such accountants.

We also find sufficient force in the plea of the learned counsel of the appellant that the expression 'shall have regard to' should not be taken as imperative. We observe that a similar interpretation has been upheld in a decision of Calcutta High Court in the case of Province of Bengal v. Pran Kissen, Law & Company. In this connection, extracts from Venkataramaiya's Law Lexicon and Legal Maxims from page 2218 Vol. III are reproduced below :- "The Calcutta High Court in the case of the Province of Bengal V. Pran Kissen Law and Company 54 C.W.N. 801 in construing the expression 'shall have regard to the provisions of Section 23(1) of the Land Acquisition Act" as used in Section 19(1) (e) of the Defence of India Act has observed as follows: "This requirement only implies that the provisions of the Land Acquisition Act must be taken into consideration. It does not mean that the Arbitrator is strictly bound by the terms of Section 23(1) of the Land Acquisition Act." Reliance placed by the learned adjudicating authority on the Observation of the Hon'ble High Court of Allahabad in the case of Prem Nath Khanna v. Collector of Central Excise, Meerut is not well founded because the case before that Court was of a person against whom the proceedings were pending and who had applied for a licence. The facts of that case are not relevant to the facts of the present case.

Observations of the Hon'ble High Court to the effect- "It is true that under Rule 2, a licence cannot be granted to a person who has been convicted for an offence or any penalty has been imposed on him under the Gold (Control) Act, 1968 or under any other law for the time being in force relating to gold but there is no bar against the consideration of an application for grant of a licence during pendency of adjudication proceedings", are to be treated in the nature of obiter.

Ratio-decidendi of the case is to quote the words of the Hon'ble Court, "His (Assistant Collector's) plea that since adjudication proceedings are pending, application for grant of licence could not be considered is not tenable in law". It is also clear that the Hon'ble Court had no occasion to interpret the scope of the expression 'shall have regard to' occurring in Rule 2 of the said Rules. In this view of the matter imposition of penalty of Rs. 500/- on the appellant way back in 1979 for a minor offence should not debar the appellant from obtaining the gold dealers licence.

5. In view of the foregoing discussion, we allow the appeal and direct that the appellant should be granted a gold dealers licence.