Captain Ganp Ati Singhji v. The State of Ajmer and Another.

Venkatarama Ayyar JJ. was delivered by Bose J. The judgment of Das and Jagannadhadas J. was delivered by Jagannadhadas J.

Bose J .-The appellant 1s the Istimrardar of Kharwa. According to him, he has he1d 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 per-mit from the District Magistrate. Accordingly the ap-pellant 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 Commissioner's Court at Ajmer for the issue of a writ 1954 directing the authorities concerned to permit the ap-Captain Ganpati peilant to hold his fair as usual. He contended that Singhji his fundamental rights under the Constitution were v. The State of Ajmer infringed and also that the rules promulgated by the and Another Chief Commissioner were ultra vzres the Regulation Bose]. 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 m the foilowing terms:

"I am of opinion that the question whether the regulation and the bye-laws framed thereunder amount to a reasonable restriction on the appeilant's fundamental right to hold a cattle fair m 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 at-tack the validity of the District Magistrate's action as well.

It is admitted that the land on which the fair 1s normally held belongs to the appellant. That being so, he has a fundamental right under article 19(1) (£) 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 arti-cle 19(1) (g), therefore, the appellant also has a funda-mental right to engage in that occupation on his land provided it does not infringe any law imposing "rea-_, sonable restrictions on that right m 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 1s sections 40 and 41 of Regulation III of 1877. Under section 40, the Chief Commissioner is empowered, among other things, to make rules about- ' 1954 " (a) the maintenance of watch and ward, and the Captain Ganpati establishment of a proper system of conservancy and

Singhji sanitation at fairs and other large public assemblies;

v.

Th< State of Ajmer (b) the imposition of taxes for the purposes men-

and Another tioned in clause (a) of this section on persons holding

-l or joining any of the assemblies therein referred to ; Bose:J.

( e) the registration of cattle".

Section 41 provides for penalties m 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 en-ure from such breach, a punishment, on conv1ct1on 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 1 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 ass1gnmg 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, re-gretted 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 Regn-lation in at least two respects. The Regulation em-powers the Chief Commissioner to make rules for the Captain Ganpati establishment of a system of conservancy and sanita-Singhji v. tion. He can only do this by bringing a system into The State of Ajmer existence and incorporating it in his rules so that and Another all concerned can know what the system is and make Bose]. 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. There-fore, in effect, the rules empower the District Magis-trate 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 Magis-trate. 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 1 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 tor 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 witl1 the right arbitrarily to prohibit that which the law and the Constitution, not only allow, but guarantee.

As these sub-rules of Rule 1 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 1954 empowering him to impose the ban, he has no power Captain Ganpati in himself to do it. The matter is covered by the

Singhji decision of this Court in Tahir Hussain v. District

v.

The State of AjrMr Board, Muzafarnagar(').

and Another The appeal is allowed and the order of the Judicial

Bose]. 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.

]AGANNADHADAS 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.

¶1The 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 estab-lish 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 w111ch he has done.

¶2The 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 or 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 1s to satisfy himself that the applicant is in a position to establish a proper system of conservancy, sanita-1954 tion and watch and ward at the fair, (3) that when Captain G{lflpati issuing a permit the District Magistrate can impose Singhji such terms and conditions as he may deem fit. The v. The State of Ajmer net effect of these rules is merely to establish a system and Another ·of ad hoc control by the District Magistrate through Jagannadhwfas J. 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 con- .servancy, 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 be-ing bad on both the above grounds, this is enough to dispose of the appeal and it is not necessary to ex-press 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.

DUNI CHAND RAT ARIA 1954

v.

December 3

BHUW ALKA BROTHERS LTD.

[MEHR CHAND MAHAJAN C.J., BHAGWATI, JAGAN-

NADHADAS and VENKATARAMA AYYAR JJ.]

West Bengal Jute Goods Future Ordinance, 1949, s. 2(1) ( b) (i) -Actual delivery of possession-Whether includes symbolical as well as constructive delivery of pos.<ession-lndian Sale of Goods Act, 1930 (111 of 1930), s. 2(2)-Delivery-Meaning of.

Delivery has been defined in s. 2(2) of Indian Sale of Goods Act, 1930, as meaning voluntary transfer of possession from one per-