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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.

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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

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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

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"(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-

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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

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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,

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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.