Captain Ganpati Singhji Vs. The State of
Ajmer & ANR [1954] INSC 118 (3 December 1954)
MAHAJAN, MEHAR CHAND (CJ) MUKHERJEA, B.K.
DAS, SUDHI RANJAN BOSE, VIVIAN BHAGWATI,
NATWARLAL H.
JAGANNADHADAS, B.
AIYYAR, T.L. VENKATARAMA
CITATION: 1955 AIR 188 1955 SCR (1)1065
ACT:
Ajmer Laws Regulation of 1877 (Reg. III of
1877), s. 40Chief Commissioner empowered to make rules for establishing a
system of conservancy and sanitation at fairs-First three sub-rules of Rule 1 prohibit
the holding of fair except under a permit issued by District Magistrate who is
required to satisfy himself that applicant can establish a proper system of
conservancy-Fourth sub-rule empowering District Magistrate to revoke permit
without assigning any reason or without previous notice-Sub-rulles-Whether
ultra vires the Regulation.
HEADNOTE:
Under s. 40 of the Ajmer Laws Regulation of
1877 (Reg. III of 1877) the Chief Commissioner is empowered, among other
things, to make rules about................. the establishment of a proper
system of conservancy and sanitation at fairs.............................. The
first three sub-rules of Rule 1, framed by the Chief Commissioner prohibit the
holding of a fair except under a permit issued by the District Magistrate and
the District Magistrate is enjoined "to satisfy himself, before issuing
any permit that the applicant is in a position to establish a proper system of
conservancy, sanitation and watch and ward at the fair".
The fourth sub-rule empowers the District
Magistrate "to revoke any such permit without assigning any reasons or
giving any previous notice".
The appellant's application for a permit to
hold a fair was refused by the District Magistrate on the ground that no more
permits were to be issued to private individuals.
Held, that under the Regulation it is the
Chief Commissioner and not the District Magistrate who has power to frame
rules, that the Chief Commissioner had no authority to delegate that power and
that the Rules made by the latter are therefore ultra vires;
Held further, that the Rule is also ultra
vires for the reason that in authorising the District Magistrate to revoke a
permit granted " without giving any reason or previous notice" it
invests him with a power to prohibit the exercise by the citizen of the
constitutionally protected right to bold fairs.
The District Magistrate's order, which in
effect prohibits the holding of the fair, is therefore bad, for, without the
aid of these rules or some other law validly empowering him to impose the ban,
he has no power in himself to do it.
1066 Per JAGANNADHADAS J. (DAS J.
concurring):The impugned order of the District Magistrate is bad:(i)because the
rules do not authorise him to reject an application on the ground on which-lie has
done;
(ii)because the not effect of the rules is to
establish a system of ad hoc control by the District Magistrate through the
issue of a permit and by the vesting of other powers in him under the rules.
This result is not within the intendment of the section which authorises the
making of the rules.
Tahir Hussain v. District Board, Muzafarnagar
(A.I.R. 1954 S.C. 630) referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 43 of 1954.
Appeal under Article 132(1) of the
Constitution of India from the Judgment and Order dated the 22nd November 1952
of the Judicial Commissioner's Court, Ajmer, in Misc. Petition No. 226 of 1952.
N. C. Chatterji (I. N. Shroff, with him) for
the appellant.
Porus A. Mehta and P. G. Gokhale for the
respondents.
1954. December 3. The judgment of Mehr Chand
Mahajan C.J., Mukherjea, Vivian Bose, Bhagwati and Venkatarama Ayyar JJ.
was delivered by Bose J. The judgment of Das
and Jagannadhadas JJ. was delivered by Jagannadhadas J.
BOSE J.-The appellant is the Istimrardar of
Kharwa.
According to him, be has held a cattle fair
on his estate every year for some twenty years. On 8-1-1951 the Chief
Commissioner of Ajmer framed certain rules for the regulation of cattle and
other fairs in the State of Ajmer.
He purported to do this under sections 40 and
41 of the Ajmer Laws Regulation of 1877 (Reg. III of 1877). One of the rules
required that persons desiring to hold fairs should obtain a permit from the
District Magistrate.
Accordingly the appellant applied for a
permit. This was refused on the ground that no more permits were to be issued
to private individuals. The appellant thereupon applied under article 226 of
the Constitution to the Judicial 1067 Commissioner's Court at Ajmer for the
issue of a writ directing the authorities concerned to permit the appellant to
hold his fair as usual. He contended that his fundamental rights under the
Constitution were infringed and also that the rules promulgated by the Chief
Commissioner were ultra vires the Regulation under which he purported to act.
The learned Judicial Commissioner refused to
issue the writ but granted leave to appeal under article 132(1) of the
Constitution in the following terms:
"I am of opinion that the question
whether the regulation and the bye-laws framed thereunder amount to a
reasonable restriction on the appellant's fundamental right to hold a cattle
fair in his own land involves a substantial question of law as to the
interpretation of the Constitution".
The leave is confined to the vires of the
Regulation and the bye-laws but we allowed the appellant to attack the,
validity of the District Magistrate's action as well.
It is admitted that the land on which the
fair is normally held belongs to the appellant. That being so, he has a
fundamental right under article 19(1)(f) which can only be restricted in the
manner permitted by sub-clause (5). The holding of an annual fair is an
occupation or business within the meaning of article 19 (1) (g), therefore, the
appellant also has a fundamental right to engage in that occupation on his land
provided it does not infringe any law imposing "reasonable restrictions on
that right in the interests of the general public", or any law
"relating to(i) the professional or technical qualifications necessary for
practising................ or carrying on" the occupation or business in
question. (Article 19(6) as amended in 1951).
The only law relevant here is sections 40 and
41 of Regulation III of 1877. Under section 40, the Chief Commissioner is
empowered, among other things, to make rules about137 1068 "(a) the
maintenance of watch and ward, and the establishment of a proper system of
conservancy and sanitation at fairs and other large public assemblies; (b) the
imposition of taxes for the purposes mentioned in clause (a) of this section on
persons holding or joining any of the assemblies therein referred to;
(b) the registration of cattle".
Section 41 provides for penalties in the
following terms:
"The Chief Commissioner may, in making
any rule under this Regulation, attach to the breach of it, in addition to any
other consequences that would entire from such breach, a punishment, on
conviction before a Magistrate, not exceeding rigorous or simple imprisonment
for a month or a fine of two hundred rupees, or both".
These sections were not impugned in the
argument before us nor were they attacked in the petition made to the Judicial
Commissioner, so we will pass on to the rules made by the Chief Commissioner.
The first three sub-rules of Rule I deal with
permits. They prohibit the holding of a fair except under a permit issued by
the District Magistrate, and the District Magistrate is enjoined to"satisfy
himself, before issuing any permit, that the applicant is in a position to
establish a proper system of conservancy, sanitation and watch and ward at the
fair".
The fourth sub-rule empowers the District
Magistrate to "revoke any such permit without assigning any reasons or
giving any previous notice".
When the appellant applied for a permit on
9-7-1952) the District Magistrate replied:
"It has been decided that as a matter of
policy permits to hold fairs will be issued only to local bodies and not to
private individuals. It is, therefore, regretted that you cannot be permitted
to hold the fair and you are therefore requested to please abandon the
idea".
In our opinion, the rules travel beyond the
Regulation in at least two respects. The Regulation empowers the Chief
Commissioner to make rules for the establishment of a system of conservancy and
sanitation. He can only do this by bringing a system into existence and
incorporating it in his rules so that all concerned can know what the system is
and make arrangements to comply with it. What he has done is to leave it to the
District Magistrate to see that persons desiring to hold a fair are in a
position "to establish a proper system of conservancy, etc." But who,
according to this, is to determine what a proper system is:
obviously the District Magistrate. Therefore,
in effect, the rules empower the District Magistrate to make his own system and
see that it is observed. But the Regulation confers this power on the Chief
Commissioner and not on the District Magistrate, therefore the action of the
Chief Commissioner in delegating this authority to the District Magistrate is
ultra vires.
Further, under the fourth sub-rule of Rule I
the District Magistrate is empowered to revoke a permit granted "without
assigning any reasons or giving any previous notice". This absolute and
arbitrary power uncontrolled by any discretion is also ultra vires. The
Regulation assumes the right of persons to hold fairs, and all it requires is
that those who do so should have due regard for the requirements -of
conservancy and sanitation; and in order that they may know just what these requirements
are, the Chief Commissioner (not some lesser authority) is given the power to
draw up a set of rules stating what is necessary. If they are in a position to
observe these rules, they are, so far as the Regulation is concerned, entitled
to hold their fair, for there is no other law restricting that right.
Therefore, the Chief Commissioner cannot by Rule invest the District Magistrate
with the right arbitrarily to prohibit that which the law and the Constitution,
not only allow, but guarantee.
As these sub-rules of Rule I are ultra vires,
the District Magistrate's order, which in effect prohibits the holding of the
fair, is also bad for, without the aid of these rules or of some other law
validly 1070 empowering him to impose the ban, he has no power in himself to do
it. The matter is covered by the decision of this Court in Tahir Hussain v.
District Board, Muzafarnagar(1).
The appeal is allowed and the order of the
Judicial Commissioner is set aside. We declare that the rules are void to the
extent indicated above and we quash the order of the District Magistrate dated
18-9-1952. But we make no order about costs because the point on which we have
proceeded was not taken in proper time in this Court.
JAGANNADHADAS J.-The order of the District
Magistrate dated the 18th September, 1952, declining to grant a permit to hold
the cattle fair on the ground that it has been decided to issue permits only to
local bodies and not to private individuals is bad for two reasons.
1. The rules under which he is to grant or
refuse permits in this behalf only authorise him to satisfy himself that the
applicant is in a position to establish a proper system of conservancy,
sanitation and watch and ward at the fair and also to impose such terms and
conditions as he may deem fit. But they do not authorise him to reject an
application on the ground on which he has done.
2. The rules themselves under which the
permit has been asked for and with reference to which the District Magistrate
declined to grant the permit are not within the ambit of the rule-making power.
These rules purport to have been framed in exercise of the powers conferred by
sections 40 and 41 of the Ajmer Laws Regulation, 1877. Section 40 authorises
the framing of the rules "for the maintenance of watch and ward and the
establishment of a proper system of conservancy and sanitation at fairs and
other large public assemblies". But the actual rules as framed are to the
effect (1) that no such fair can be held except under a permit of the District
Magistrate, (2) that before issuing a permit the District Magistrate is to
satisfy himself that the applicant is in a position and watch and ward at the
fair, (3) that when issuing a permit the District Magistrate can impose such
terms and conditions as he may deem fit. The net effect of these rules is
merely to establish a system of ad hoc control by the District Magistrate
through the issue of a permit and by the vesting of other powers in him under
the rules. These cannot be said to be rules which in themselves constitute a
system of conservancy, sanitation and watch and ward. Thus the result that is
brought about is not within the intendment of the section which authorises the
making of the rules. A system of ad hoc control of responsible officers may,
possibly be one method of regulating the sanitary and other arrangements at
such large gatherings. But if it is intended to constitute a system of ad hoc
control with reasonable safeguards, the power to make rules in that behalf must
be granted to the rule-making authority by the legislative organ in appropriate
language.
The impugned order of the District Magistrate
being bad on both the above grounds, this is enough to dispose of the appeal
and it is not necessary to express any opinion as to whether the impugned order
infringes also the appellant's fundamental rights under article 19. The appeal
must accordingly be allowed.
Appeal allowed.
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