Ganpatisinghji Istimrardar of Kharwa vs The State of Ajmer and another

Nigam, J.C.

This is a petition for permission to appeal to the Hon''ble Supreme Court.

The facts in brief are that the petitioner is the Istimrardar of Kharwa and used to hold a tattle fair in village Lamana. It is stated that this cattle fair used to be held in accordance with the rules framed by the Chief Commissioner under Ss. 40 and 41 of Regulation III of 1877. In accordance with these rules, the petitioner applied for a permit to the District Magistrate. This was refused on 18-9-1952. A reference made to the Chief Commissioner was rejected by him. Against that refusal to grant the necessary permit, the petitioner moved for a writ of mandamus on the ground that the action of the District Magistrate was arbitrary and that the rules promulgated by the Chief Commissioner under Ss. 40 and 41 of Regulation III of 1877 were ultra vires. The petition for a writ was contested and was rejected by my learned predecessor on 22-11-1952 on the ground that the power to grant permission included the power to refuse it to any particular person and that a purely administrative act could be interfered with only if the public officer concerned had no jurisdiction to do or failed to do something which was incumbent upon him to do and the Court could not interfere with the exercise of the discretion unless that discretion had been exercised mala fide. No malice or corrupt motives have been alleged in the case. In the application, I have heard the learned counsel for the applicant and the learned Government Pleader.

The application is under Arts. 132 and 133 of the Constitution of India. The learned counsel for the applicant has, however, conceded that Art. 133 has no application. He has confined his arguments to the applicability to Art. 132(1) of the Constitution of India.

The arguments before me have been confined to the question whether a substantial question of law as to the interpretation of the Constitution is involved or not. The contention of the learned Government Pleader is that as the validity of Regulation III of 1877 is not challenged and the only contention is that the rules framed under the authority of Ss. 40 and 41 of the Regulation are in excess of the powers conferred under those sections, no question as to the interpretation of the Constitution is involved. The contention of the learned counsel for the applicant is that the question for determination is whether the petitioner has the fundamental right to hold fairs and whether this right can be limited by any law. The learned counsel for the petitioner has referred me to -- Sarayoo Prosad Sinha Vs. Joint Secretary to the Government of West Bengal, In this case it was held:

A person who speaks in favour of the interest of the inhabitants of one particular province or state as against the interest of the inhabitants of another province or State, cannot be regarded as endangering "communal harmony".

This question was held to involve a substantial question of law as to the interpretation of the Constitution of India.

The learned Government Pleader has referred me to -- Lachhman Prasad Bhagat Vs. Government of Bihar and Others, . In this case, it was held that even if the High Court be held to have rejected the application of the petitioner for the issue of a writ of mandamus on a wrong interpretation of the statute, leave to appeal cannot be granted under the provision of Art. 132(1) of the Constitution, because no question of law as to the interpretation of the Constitution arises. I have also been referred to -- ''Kishorilal Bahati v. State'', AIR 1951 Ass 169 (SB) (C). In this ruling it was held that where the case merely involved the interpretation of certain sections of the Preventive Detention Act 4 of 1950, as amended by Act 4 of 1951 and not the Constitution of India and the short point for determination is whether a detenu is entitled to be released forthwith when his case has not been considered within the period prescribed by all the three members of the Advisory Board, it is not a fit case for appeal to the Supreme Court.

The learned counsel for the applicant has, however, pointed out that in the Assam ruling relied upon by the learned Government Pleader, it was, as a matter of fact, held that no question involving the interpretation of the Constitution arose. The suggestion of the learned counsel is that in this particular case the question whether the applicant has the fundamental right of holding the cattle fair and whether the restriction imposed on that fundamental right by Regulation III of 1877 and the bye-laws framed thereunder is a reasonable restriction is involved and this is a question of interpretation of the Constitution. The learned counsel argues that in -- '' AIR 1961 Cal 424 (A)'', the question under consideration was held to involve a substantial question of law as to the interpretation of the Constitution.

On a consideration of the matter, I am of opinion that the question whether the regulation and the bye-laws framed thereunder amount to a reasonable restriction on the applicant''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. I am, accordingly, of the view that the applicant is entitled to a certificate under Art. 132(17 of the Constitution.

Certificate granted. The applicant should furnish a cash security in the sum of Rs. 4,000/- within six weeks of today and also deposit Rs. 400/- towards translation and printing charges within the same period.