Captain Ganpati Singhji vs The State Of Ajmer And Another

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 43 of 1954

Decision Date: 3 December 1954

Coram: Mehar Chand Mahajan, B.K. Mukherjea, Vivian Bose, Natwarlal H. Bhagwati, B. Jagannadhadas, Venkatarama Ayyar, Das

In the matter of Captain Ganpati Singhji versus The State of Ajmar and another, the Supreme Court of India delivered its judgment on the third day of December, nineteen fifty-four. The opinion was authored by Justice Mehar Chand Mahajan, who was the Chief Justice, and was heard by a Bench consisting of Justices Mehar Chand Mahajan, B. K. Mukherjea, Vivian Bose, Natwarlal H. Bhagwati and B. Jagannadhadas. The case is reported in the 1955 volume of the All India Reporter at page one hundred eighty-eight and also bears the citation 1955 SCR (1) 1065. The dispute involved the application of the Ajmer Laws Regulation of 1877, specifically Regulation III of 1877, section 40, which authorises the Chief Commissioner to make rules for establishing a system of conservancy and sanitation at fairs. Under the rules framed by the Chief Commissioner, Rule 1 contains four sub-rules. The first three sub-rules prohibit the holding of any fair unless a permit is issued by the District Magistrate, and the magistrate must be satisfied that the applicant is capable of establishing 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 at any time without giving any reason and without prior notice. Captain Ganpati Singhji applied for a permit to hold a fair, but the District Magistrate refused the request on the ground that no further permits would be issued to private individuals. The petitioner challenged the refusal, arguing that the sub-rules were beyond the authority granted by the Regulation.

The Court examined whether the rules made by the Chief Commissioner and the powers conferred upon the District Magistrate were within the scope of the Regulation. It held that the power to frame rules under section 40 belongs exclusively to the Chief Commissioner and that the Chief Commissioner had no authority to delegate that power to the District Magistrate. Consequently, the rules framed by the Chief Commissioner were deemed ultra vires the Regulation. The Court further observed that the fourth sub-rule, which allowed the District Magistrate to revoke a permit without reason or notice, effectively gave the magistrate the power to prohibit a citizen’s constitutionally protected right to hold a fair. This, too, was found to be ultra vires. Accordingly, the order of the District Magistrate that refused the permit was declared invalid, because without a valid rule or any other law empowering him, the magistrate possessed no authority to impose such a ban. Justice Jagannadhadas, concurring with Justice Das, reiterated that the impugned order was bad because the rules did not authorize the magistrate to reject an application on the grounds presented, and because the effect of the rules was to create an ad-hoc system of control inconsistent with the intended scope of section 40.

The concurring judge observed that the order issued by the District Magistrate was legally infirm for two principal reasons. First, the rules did not empower the Magistrate to reject an application for a permit, and therefore his action exceeded the authority granted by those rules. Second, the effect of the rules was to create an ad hoc system of control whereby the District Magistrate could issue permits and retain additional powers, a result that was not contemplated by the provision authorising the making of the rules. The judge further noted that this outcome fell outside the intended scope of the section that permitted rule-making. In support of this reasoning, the judgment referred to the earlier decision in Tahir Hussain v. District Board, Muzafarnagar (A.I.R. 1954 S.C. 630), which had examined similar questions of statutory authority and the limits of delegated power.

The appeal was presented before the Civil Appellate Jurisdiction as Civil Appeal No. 43 of 1954, filed under Article 132(1) of the Constitution of India. The appellant, who held the title of Istimrardar of Kharwa, had organised a cattle fair on his estate annually for about twenty years. On 8 January 1951 the Chief Commissioner of Ajmer promulgated certain rules to regulate cattle and other fairs in the State, invoking sections 40 and 41 of the Ajmer Laws Regulation of 1877 (Regulation III of 1877). One of those rules required any person wishing to hold a fair to obtain a permit from the District Magistrate. The appellant applied for such a permit, but the application was refused on the ground that no further permits would be issued to private individuals. Consequently, the appellant filed a petition under Article 226 of the Constitution before the Judicial Commissioner’s Court at Ajmer, seeking a writ directing the authorities to allow him to conduct his fair as before. He argued that his fundamental rights under the Constitution were being infringed and contended that the rules made by the Chief Commissioner were ultra vires the Regulation under which they were issued. The Judicial Commissioner declined to grant the writ but permitted an appeal under Article 132(1), stating that the question of whether the Regulation and the bye-laws constituted a reasonable restriction on the appellant’s fundamental right to hold a cattle fair involved a substantial question of law concerning constitutional interpretation. The leave was expressly limited to the validity of the Regulation and the bye-laws, yet the appellant was also allowed to challenge the legality of the District Magistrate’s action. It was established that the land on which the fair was normally held belonged to the appellant, giving him a fundamental right under Article 19(1)(f), which could be restricted only in accordance with sub-clause (5). The holding of an annual fair was characterized as an occupation or business within the meaning of Article 19(1)(g), thereby conferring upon the appellant a fundamental right to engage in that occupation on his own land, provided that any restriction complied with the requirements of reasonable limits in the public interest.

The Court observed that holding a cattle fair on one’s own land qualified as an “occupation or business” within the meaning of article 19 (1) (g), and therefore the appellant possessed a fundamental right to pursue that occupation on his land, provided that such activity did not contravene any law imposing reasonable restrictions in the interests of the general public or any law relating to the professional or technical qualifications necessary for practising or carrying on the said occupation, as articulated in article 19 (6) as amended in 1951. The only statutes directly applicable, the Court noted, were sections 40 and 41 of Regulation III of 1877. Section 40 authorized the Chief Commissioner, among other powers, to make rules concerning (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) on persons holding or joining any of the assemblies so mentioned; and (c) the registration of cattle. Section 41 provided that the Chief Commissioner, in making any rule under the Regulation, could attach to a breach of that rule, in addition to any other consequences, 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. The Court pointed out that these sections were not contested in the arguments before it nor were they attacked in the petition presented to the Judicial Commissioner, and consequently the Court turned its attention to the rules promulgated by the Chief Commissioner. The first three sub-rules of Rule I dealt with permits; they barred the holding of a fair except under a permit issued by the District Magistrate and required the Magistrate to satisfy himself, before granting any permit, that the applicant was in a position to establish a proper system of conservancy, sanitation and watch and ward at the fair. The fourth sub-rule authorized the District Magistrate to revoke any such permit without assigning any reasons or giving any prior notice. When the appellant applied for a permit on 9 July 1952, the District Magistrate responded that, as a matter of policy, permits to hold fairs would be issued only to local bodies and not to private individuals, and therefore the appellant’s request could not be accommodated and he was asked to abandon the idea. In the Court’s view, these rules exceeded the scope of the Regulation in at least two ways. The Regulation vested in the Chief Commissioner the power to make rules for establishing a system of conservancy and sanitation, and required the Commissioner to define that system in his rules so that all concerned could understand and comply with it. Instead, the Commissioner had delegated to the District Magistrate the authority to determine whether persons desiring to hold a fair were in a position to meet those requirements, thereby extending the Regulation beyond its intended limits.

The Court observed that the phrase “to establish a proper system of conservancy, etc.” in the rule required a determination of what constituted a proper system. The language of the rule made it clear that the District Magistrate was the authority expected to decide the adequacy of such a system. Consequently, the effect of the rule was to empower the District Magistrate to devise his own system of conservancy and to enforce it. However, the Regulation itself assigned the power to formulate the system of conservancy, sanitation and watch-and-ward to the Chief Commissioner, not to the District Magistrate. The delegation of this authority by the Chief Commissioner to the District Magistrate therefore exceeded the scope of the Regulation and was held to be ultra vires. In addition, the fourth sub-rule of Rule I allowed the District Magistrate to revoke a permit “without assigning any reasons or giving any previous notice”. The Court characterised this power as absolute and arbitrary, lacking any discretionary control, and consequently also ultra vires. The Regulation presupposed a right of persons to hold fairs, subject only to compliance with the requirements of conservancy and sanitation. To inform applicants of those requirements, the Regulation entrusted the Chief Commissioner—rather than a subordinate officer—with the power to draw up the necessary rules. Once an applicant could satisfy those rules, the Regulation entitled the applicant to hold the fair, and no other law restricted that entitlement. Accordingly, the Chief Commissioner could not, by rule, grant the District Magistrate the unfettered discretion to prohibit a fair that the law and the Constitution protected. Because the sub-rules of Rule I were ultra vires, the order of the District Magistrate that effectively barred the fair was also invalid. The Court noted that, without the aid of those void rules or any other lawful authority, the District Magistrate possessed no power to impose such a ban. The matter was decided in line with the precedent set in Tahir Hussain v. District Board, Muzafarnagar (1).

The Court allowed the appeal and set aside the order of the Judicial Commissioner. It declared that the rules were void to the extent described and consequently quashed the District Magistrate’s order dated 18-9-1952. No order regarding costs was made because the issue on which the Court ruled had not been raised at the appropriate time. Justice Jagannadhadas noted that the District Magistrate’s order of 18 September 1952, which refused a permit for the cattle fair on the basis that permits were to be issued only to local bodies and not private individuals, was defective for two reasons. First, the rules governing the grant or refusal of permits authorized the Magistrate merely to ensure that the applicant could establish an appropriate system of conservancy, sanitation and watch-and-ward, and to impose any terms and conditions he deemed necessary; they did not empower him to reject an application on the ground he had used. The second ground, though not fully stated in the excerpt, further underscored the unlawfulness of the Magistrate’s refusal. Thus, the Court’s decision nullified the prohibited order and affirmed the applicant’s right to obtain a fair permit, subject only to compliance with the proper conservancy and sanitation requirements as set by the Chief Commissioner.

In this case the Court observed that the regulations on which the permit had been sought and on the basis of which the District Magistrate had refused to grant the permit did not fall within the scope of the authority to make rules. The Court noted that the regulations were said to have been made under the powers conferred by sections 40 and 41 of the Ajmer Laws Regulation, 1877. Section 40, according to the statute, empowered the Government to make rules for the purpose of maintaining watch and ward and for establishing a proper system of conservancy and sanitation at fairs and other large public assemblies. However, the Court found that the actual substance of the regulations was limited to three main provisions: first, that no fair could be held except under a permit issued by the District Magistrate; second, that before granting such a permit the District Magistrate must be satisfied that the applicant was capable of providing a proper system of conservancy, sanitation and watch and ward at the fair (as noted in A.I.R. 1954 S C. 630); and third, that the District Magistrate could impose any terms and conditions that he deemed appropriate when issuing the permit. The effect of these provisions, the Court explained, was merely to create an ad hoc system of control in the hands of the District Magistrate, by requiring a permit and by vesting additional powers in him under the regulations. The Court held that these provisions could not be said to constitute a rule that itself created a system of conservancy, sanitation and watch and ward, and therefore the result achieved by the regulations was not within the intention of section 40, which authorized the making of rules for a substantive system of public health and safety. While acknowledging that an ad hoc system of control by responsible officers might be one method of regulating sanitary arrangements at large gatherings, the Court emphasized that if such a system were intended, the legislature must expressly grant the rule-making authority the power to do so, using clear language. Because the order of the District Magistrate was found to be invalid on both of these grounds, the Court concluded that it was unnecessary to consider whether the order also infringed the appellant’s fundamental rights under article 19. Accordingly, the Court allowed the appeal.