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PETITIONER: CAPTAIN GANPATI SINGHJI

       Vs.

RESPONDENT: THE STATE OF AJMER AND ANOTHER.

DATE OF JUDGMENT: 03/12/1954

BENCH: MAHAJAN, MEHAR CHAND (CJ) BENCH: 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.  40- Chief 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

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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.

JUDGMENT: 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

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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 about- 137 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 Regu- 1069 lation  in at least two respects.  The  Regulation  empowers the  Chief Commissioner to make rules for the  establishment

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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

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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 (1)  A.I.R. 1954 S C. 630, 1071 tion 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  intend- ment  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.