Full Judgment Text
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PETITIONER:
MUNICIPAL COMMITTEE, AMRITSAR & ANR.
Vs.
RESPONDENT:
STATE OF PUNJAB & ORS.
DATE OF JUDGMENT:
30/01/1969
BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
RAMASWAMI, V.
GROVER, A.N.
CITATION:
1969 AIR 1100 1969 SCR (3) 447
1969 SCC (1) 475
CITATOR INFO :
RF 1970 SC 564 (70,179)
R 1970 SC2182 (12)
E 1971 SC 481 (46)
RF 1973 SC 588 (27)
RF 1973 SC 974 (12)
RF 1973 SC1461 (435,1709)
E 1991 SC 101 (70,278)
ACT:
Punjab Cattle Fairs (Regulation) Act (6 of 1968) as amended
by Amending Act 18 of 1968, ss. 2(bb), 4, 15 and 23-Original
Act without definition in s. 2(bb) of cattle fair, if vague-
Whether Act can be struck down on the ground of vagueness
and effect of striking down-If Act ceases to have existence
in law-Decision before amendment if res judicata between
parties after amendment-Act creating monopoly in State if
violates Art. 19(1) (b), (d), (f) and (g) of the
Constitution-Scope of s. 4-S. 15 if violative of Art.
19(1)(f)-Municipal Committee if citizen-If can complain of
violation of Art. 19-Direction regarding property of
Municipal Committee amounting to requisition-If violative of
Art. 32-Directions regarding amenities-If authorised by Act.
HEADNOTE:
In the State of Punjab local authorities and individual
owners of land were holding cattle fairs. The Punjab Cattle
Fairs (Regulation) Art, 1967, was passed by the State
Legislature in exercise of powers under entry 28 of List II
of VII Schedule to the Constitution, declaring a monopoly in
the State to hold cattle fairs and prohibiting all local
authorities and individuals from holding cattle fairs at
’any place in the State’. There was no definition of the
expression ’cattle fair’ in the Act. The validity of the
Act was challenged on the ground that the provisions of the
Act were ’vague and ambiguous’, and the High Court, in
Mohinder Singh Sawhney v. State of Punjab, A.I.R. 1968 Punj.
391, accepted the contention. ’Me State Legislature
thereupon, by Amendment Act 18 of 1968 introduced s. 2(bb)
defining the expression ’cattle fair’ to mean ’a gathering
of more than 25 persons for the purpose of general sale or
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purchase of cattle’. Fair Officers were appointed under s.
4(1) of the Act, and under s. 4(2) they declared certain
areas as fair areas. ’Some of the areas so declared
belonged to a Municipal Committee in the State. The Munici-
pal Committee, a lessee from the Municipal Committee and
some residents in the State, challenged the Act in this
Court on the following grounds
(1) Since the Act was struck down in Mohinder Singh
Sawhney’s case, the Act ceased to have any existence in law
and could not therefore be amended;
(2) The order of the High Court in that case operated as
res judicata between the parties and could not be enforced
without a re-enactment of the Act;
(3) The Act violated Arts. 19(1)(b), (d), (f) and (g); and
(4) Section 15 (if the Act, which authorises the State to
call upon a Panchayat Samiti or a Municipal Committee within
whose jurisdiction the fair is held to deposit a prescribed
amount in the Cattle Fair Fund to cover the initial expenses
of the fair and compels the local authority to abide by the
directions, was invalid.
The Municipal Committee also challenged the demand by the
Fair Officer, asking the Municipal Committee to supply
water, electricity and to make sanitary arrangements and to
make the staff articles and offices of the Municipal
Committee available to the Fair Officer.
448
HELD: (i) The Act as originally enacted was not vague. ,
When the Legislature did not furnish a definition of ’cattle
fair’ it must be deemed to have used the expression in its
ordinary signification, as meaning a periodical concourse
of buyers and sellers in a place, generally for sale and
purchase of cattle, at times or on occasions ordained by
custom. [454 C-E]
But even if it was vague it could not have been struck down
on that ground. The High Court in Mohinder Singh Sawhney’s
case struck down the Act on the ground of vagueness on the
assumption that the validity of the Act was liable to be
adjudged by the test of ’due process of law’. But this
Court, in A. K. Gopalan v. State of Madras, [1950] S.C.R.
88, held that the doctrine of due process has no place in
our Constitution. Superior Courts in India may declare a
law invalid, if the Legislature has no power to enact the
law or if the law violates any of the fundamental rights
guaranteed in Part III of the Constitution or is
inconsistent with any constitutional provision, but not on
the ground that it is vague. Therefore as a result of the
judgment of the High Court the Act did not cease to have
existence in law. [453 C-D, G; 454 A-B]
Kehar Singh v. The State of Punjab, (1969) 71 P.L.R. 24,
approved.
(2) The decision in Mohinder Singh Sawhney’s case does not
operate as res judicata even in favour of the petitioners in
that case. Its effect was only that the Act was in law non-
existent so long as there was no definition of the
expression ’cattle ’fair’ in the Act. But that defect has
been remedied by the Amending Act. [454 B-C]
(3) (a) The Act does not impose unreasonable restrictions
upon the fundamental rights guaranteed under Art. 19(1)(b)
and (d). It prohibits an individual or local authority from
arranging a gathering of more than 25 persons for the
purpose specified in the definition. The restriction was
only for the purpose of making the monopoly effective, and
must be regarded as a reasonable restriction within the
meaning of cls. 19(3) and (5) upon the freedom of assembly
and of free movement. [456 C-E]
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(b) The Act is restricted in its scope and the freedoms
guaranteed by Art. 19(1) (f) and (g) are also not infringed.
(i) A law which is ’basically and essentially necessary’
for creating a State monopoly and thereby deprives the
citizens of the right to carry on he same business is not,
by virtue of Art. 19(6), open to challenge on the ground
that it infringes the fundamental right guaranteed by Art.
19(1) (g). In the present case, the primary object of the
Act is to give a monopoly to the ’State to hold cattle fairs
and as a necessary concomitant of that monopoly, holding of
cattle fairs by local authorities and individuals is
prohibited. The law will not also be exposed to attack on
the ground that the right to carry on business is property,
for, the validity of restrictions on the right to carry on
occupation, trade or business, or to practice any profession
must be adjudged only in the light of Art. 19(6). Moreover,
the presumption of reasonableness of a statute creating a
monopoly in the State applies not only in respect of the
right under Art. 19(1)(g) but also under Art. 19(1)(f). [456
E-G; 457 A-C]
Akadasi Padhan v. State of Orissa, [1963] Supp. 2 S.C.R.
691, followed.
State of Bihar v. Rameshwar Pratap Narain; [1962] 2 S.C.R.
382 and M. V. P. Ramunni Kurup v. Panchayat Board, Badagara,
A.I.R. 1954 Mad. 754, referred to.
449
(ii) The prohibition imposed upon all persons and
authorities is in respect of only cattle fairs and not in
respect of cattle markets, that is, places where the
business of see or purchase is regularly conducted by
private parties and not as a fair. The Act does not
prohibit anyone from carrying on the business of cattle
market on his own land. [455 E-F; 461 E]
When the business is in the nature of a market for sale of
sheep and goats brought by intending sellers ’for slaughter,
such a place cannot be called a fair. A person carrying on
his business in a cattle market on his own land need not
take out a licence under s. 9 of the Act even though he was
collecting brokerage and was carrying on the business of a
broker, because, it is only a person carrying on his
business within a fair area, lawfully declared, that is
required to obtain the licence. [460 F-H]
(iii) Though the words used in s. 4 are wide and are
capable of the interpretation that the State could hold a
cattle fair at any place, it is implicit in ss. 3 and 4 that
the monopoly acquired by the State to hold and manage cattle
fairs is confined to property belonging to the State and
does not extend to the property of local authorities or
private owners. [456 A-C]
A Municipal Committee is not a ’citizen’ within the meaning
of Art. 19 and therefore, is not entitled to claim
protection of any of the fundamental ’rights under Art.
19.But a direction to make municipal property available for
holding a cattle fair by the ’State is a threat to
requisition municipal property without authority of law and
is not a mere direction to regulate the fair held on behalf
of the Municipal Committee. Such a taking possession of
property without payment of compensation as required by Art.
31(2) must be deemed unauthorised and s. 23, giving the pro-
visions of the Act a paramount operation notwithstanding
anything inconsistent in any other law, will not supersede
the constitutional guarantee. [458 E-G]
(4) Under s. 17(d), out of the Cattle Fair Fund, the amount
recovered from a local authority may be reimbursed but the
provision in s. 15, authorising the State to call upon a
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local authority to pay a sum of money towards the Cattle
Fair Fund is an unreasonable deprivation of property and
violates the right under Art. 19(1) (f) and hence is
invalid. [457 C-E]
Also the demand made by the Fair Officer for assistance of
the staff, articles and offices of the Municipality for
holding a fair, and the demand for supply of water and
electricity and making suitable sanitary arrangements are
not warranted by any provision of the Act, and must be de-
clared invalid. [459 A-C]
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petitions Nos. 295, 362, 365,
443 and 444 of 1968.
Petitions under Art. 32 of the Constitution of India for the
enforcement of the fundamental rights.
H. R. Gokhale and Naunit Lal, for the petitioners (in W.
P. No. 295 of 1968).
H. R. Gokhale, Jagjit Singh Chawla, S. K. Mehta and K. L.
Mehta, for the petitioner (in W.P. No. 362 of 1968).
R. K. P. Shankar Dass Bishambar Lal and H. K. Puri, for
the petitioners (in W.P. No. 365 of 1968).
450
Jagjit Singh Chawla, S. K. Mehta and K. L. Mehta, for the
petitioners (in W.P. Nos. 443 and 444 of 1968).
Niren De, Attorney-General, V. C. Mahajan and R. N. Sach-
they, for the respondents (in W.P. Nos. 295 and 362 of
1968).
V. C. Mahajan and R. N. Sachthey, for the respondents (in
W.P. No. 365 of 1968).
R. N. Sachthey, for the respondents (in W.P. Nos. 443 and
444 of 1968).
The Judgment of the Court was delivered by
Shah, J. Cattle fairs are held for the last many decades in
different parts of the territory of the State of Punjab, by
local authorities and individual owners of land. The person
or authority holding. the cattle fair provides facilities to
cattle owners for board and lodging and for stabling their
cattle generally in consideration of charges including a
percentage on the price realised by sale or purchase of
cattle.
The Governor of Punjab with a view to control and regulate
cattle fairs promulgated Ordinance No. 14 of 1967 on
November 4, 1967, declaring a monopoly in the State of
Punjab to hold cattle fairs and prohibiting all local
authorities and individuals from holding cattle fairs "at
any place in the State". This Ordinance was replaced by the
Punjab Cattle Fairs (Regulation) Act 6 of 1968. By s. 3 of
the Act it is provided :
"(1) The right to hold a cattle fair at any
place in the State of, Punjab and to control,
manage, and regulate such fair shall vest
exclusively in the State Government and shall
be exercisable by it, in accordance with the
provisions of this Act and the rules made
thereunder, through such persons or
authorities as it may deem fit.
(2) Notwithstanding anything contained in
any other law for the time being in force and
save as provided by sub-section (1), it shall
be unlawful for any person or local authority
to hold, control, manage or regulate a cattle
fair at any place in the State of Punjab."
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The expression "Cattle" is defined by S. 2(b) as including a
buffalo, camel, cow, donkey, elephant, goat, horse mule,
sheep and their young-ones and such other animals as the
State Government may by notification specify. By S. 4(1)
authority is vested in the State Government to appoint Fair
Officers for holding, controlling, managing and regulating
tattle fairs in a district. By sub-s. (2) the Fair Officer
is made responsible for making arrangements in respect of
all matters connected with the holding of a cattle fair and
its proper control, management and regulation
451
and has also the power of- (i) defining the fair area; (ii)
reservation of sites or places for latrines, urinals, baths,
shops, exhibitions, shows, demonstrations, foot-baths for
animals, water supply for drinking purposes, shelters, green
and dry fodder, entertainment and similar other purposes
necessary in connection with the cattle fair; (iii)
allotment of sites temporarily for commercial or other
purposes in connection with the cattle fair, authorisation
of raising of structures on such sites, and fixation of
rents for such sites in the prescribed manner; (iv)
arrangements for watch and ward, lighting, medical first
aid, veterinary aid, sanitation, tentage and other
facilities as may be necessary in connection with the cattle
fair; and (v) construction of temporary offices for the
purpose of collecting taxes and fees imposed and levied in
connection with the cattle fair. The expression "fair area"
is defined in s. 2 (d) as meaning "such area within a
district as may be specified by a fair officer for the
purpose of holding a cattle fair". By s. 5 power is
conferred upon the State Government to impose in a fair area
during the continuance of a cattle fair, tolls on vehicles
entering such area for business purposes and octroi duty on
goods brought for sale within such, area. Jurisdiction of
the local authorities to levy taxes and fees in any fair
area in connection with the fair is excluded by s. 6. By s.
8 it is provided that no person shall sell cattle at a
cattle fair unless the has obtained a registration
certificate in respect of cattle to be sold. Section 9
provides for licensing of brokers. By s. 15 the State
Government is authorised to direct the Panchayat Samiti or
Municipal Committee, in whose jurisdiction the fair is to be
held, to deposit in the Cattle Fair Fund the prescribed
amount, not exceeding one thousand rupees, to cover the
initial expenses of the fair and the local authority so
directed is enjoined to comply with the direction. Section
16 provides for the setting up of a Cattle Fair Fund in
which all fees, rent or other sums of money (not being tolls
and taxes) received or realized under the provisions of the
Act or the rules made thereunder, and all donations or
grants made to the Fund by the State Government, a local
authority or any other person are to be credited. By s. 18
penalties are prescribed for contravention of the provisions
of sub-s. (2) of s. 3. Power is conferred by s. 21 to make
regulations to provide against the outbreak or spread of
fire and for certain other matters. By s. 22 the State
Government is authorised to make rules for carrying out the
Purposes of the Act. The Act, however, as originally
enacted contained no definition of the expression "cattle
fair".
Validity of the Punjab Cattle Fairs (Regulation) Act, 1967
was challenged in a group of petitions moved before the High
Court of Punjab by persons interested in holding cattle
fairs: Mohinder Singh Sawhney v. State of Punjab and
Others(1) Before the High Court one of the contentions
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raised by the
(1) A.I.R. [1968] Punjab 391.
452
petitioners was that the provisions of the Act were "Vague
and ambiguous", and on that account the Act. was ultra
vires. The Court accepted that contention. The Court
observed that there was a distinction between a "cattle
market" and a "cattle fair’ and since no definition of
"cattle fair" was supplied by the Act it was left to the
executive authorities to determine what a "cattle fair" was
and on that account "the infirmity went to the root of the
matter, and the Act was liable to be struck down in its
entirely on the ground of vagueness, even if some of its
provisions were unexceptionable in themselves".
The State Legislature then enacted the Punjab Cattle Fairs
(Regulation) Amendment Act 18 of 1968 which, introduced by
s. 2(bb) a definition of the expression "cattle fair" as me
"a gathering of more than twenty-five persons for the
purpose of general sale or purchase of cattle". Fair
Officers were appointed by the State Government and they
issued notifications. declaring certain areas as "fair
areas".
A number of petitions were again moved in the High Court of
Punjab for an order declaring invalid the Art as amended.
The High Court of Punjab dismissed the petitions, upholding
the validity of the Act: Kehar Singh v. The State of Punjab
& Another(1). The Court in that case held that the
definition of "cattle fair" was not intended to bring within
its compass sales by private individuals outside fair areas:
it was intended only to apply where in general, people
assemble at some place for the purpose of buying and selling
cattle and the number of persons exceeds twenty-five, and
that Act 6. of 1968 as amended by Act 18 of 1968 "does not
contravene the provisions of Arts. 19(1)(f) & (g) of the
Constitution".
Certain persons interested in conducting cattle fairs have
filed writ petitions in this Court. Arguments which are
common in all the petitions may first be considered.
We are unable to accept the argument that since the High
Court of Punjab by their judgment in Mohinder Singh
Sawhney’s case (2 ) struck down the Act, Act 6 of 1968 had
ceased to have ,any existence in law, ’and that, in any
event, assuming that the judgment of the Punjab High Court
in Mohinder Singh Sawhney’s. case (2 ) did not make the Act
non-existent, as between the parties in whose favour the
order was passed in the earlier writ petitions, the order
operated as res judicata, and on that account the Act could
not be enforced without re-enactment. The High Court of
Punjab in Mohinder Singh Sawhney’s case(2)
(1) (1969) 71 P.L.R. 24.
(2) A.I.R. [1968] Punjab 391.
453
"...... in our opinion the petitions must
succeed on the ground that the legislation is
vague, uncertain and ambiguous.",
and also (at p. 394) that-.
".........as the infirmity of vagueness goes
to the root of the matter, legislative
enactment has to be struck down as a whole
even if some of its provisions are un-
exceptionable in themselves."
But the rule that an Act of a competent legislature may be
"struck down" by the Courts on the ground of vagueness is
alien to our Constitutional system. The Legislature of the
State of Punjab, was competent to enact legislation in
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respect of "fairs" vide entry 28 of List 11 of the Seventh
Schedule to the Constitution. A law may be declared invalid
by the superior Courts in India if the legislature has no
power to enact the law or that-the law violates any of the
fundamental rights guaranteed in Part III of the
Constitution or is inconsistent with any constitutional
provision, but not on the ground that it is vague. It is
true that in Claude C. Connally v. General Construction
Company(1) it was held by the Supreme Court of the United
States of America that
"A statute which either forbids or requires
the doing of an act in terms so, vague that
men of common intelligence must necessarily
guess at its meaning and differ as to its
application violates the first essential of
due process of law."
But the rule enunciated by the American Courts has no
application under our Constitutional set up. The rule is
regarded as an essential of the "due process clauses"
incorporated in the American Constitution by the 5th & the
14th Amendments. The Courts in India have no authority to
declare a statute invalid on the ground that it violates the
"due process of law". Under our Constitution, the test of
due process of law cannot be applied to statutes enacted by
the Parliament or the State legislatures. This Court has
definitely ruled that the doctrine of "due process of law"
has no place in our Constitutional system: A. K. Gopaian v.
The State of Madras(2). Kania, C.J., observed (at p. 120).
"There is considerable authority for the
statement that the Courts are not at liberty
to declare an Act void because in their
opinion it is opposed to a spirit supposed to
pervade the Constitution but not expressed in
words. . . . . it is only in express
constitutional provisions limiting legislative
power and controlling the temporary will of a
majority by a permanent and paramount law
settled by the deliberate wisdom of the nation
that one
(1) 70 L. Edn. 322.
(2) [1950] S.C.R. 88-
454
can find a safe and solid ground for the
authority of Courts of Justice to declare void
any legislative enactment."
The order made by the High Court in Mohinder Singh Sawhney’s
case(1) striking down the Act was passed on the assumption
that the validity of the Act was liable to be adjudged by
the test of "due process of law". The Court was plainly in
error in so assuming. We are also unable to hold that the
previous decision operates as res judicata even in favour of
the petitioners in whose petitions an order was made by the
High Court in the first group ,of petitions. The effect of
that decision was only that the Act was in law, non-
existent, so long as there was no definition of the
expression "cattle fair" in the Act. That defect has been
remedied by the Punjab Act 18 of 1968.
We may hasten to observe, that we are unable to agree that
the Act as originally enacted was unenforceable even on the’
ground of vagueness. It is true that the expression "cattle
fair" was not defined in the Act. The Legislature, when it
did not furnish the definition of the expression "cattle
fair" must be deemed to have used the expression in its
ordinary signification, as meaning, a periodical concourse
of buyers and sellers in a place generally for sale and
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purchase of cattle at times or on occasions ,ordained by
custom.
We agree with the High Court that by enacting the Act the
State was not attempting to prevent all transactions for
sale and purchase of cattle. The State took upon itself by
the Act a monopoly of conducting fairs, but it did not
thereby seek to monopolise all transactions of sale and
purchase in cattle. This is now made clear the definition
of "cattle fair" in s. 2(bb).
A law which vests in the State a monopoly to carry on a
certain trade or business to the extent that it has direct
relation to the creation of the monopoly, is not open to
challenge on the ground of violation of the freedom
guaranteed by Art. 19(1) (g). As pointed out by this Court
in Akadasi Padhan V. State of Orissa (2) (at p. 707)
"A law relating to’ a State Monopoly Cannot,
in the context [of Art. 19 ( 1 ) (g) ] include
all the provisions contained in the said law
whether they have direct relation with the
creation of the monopoly or not. . .
expression should be construed to mean the law
relating to the monopoly in its absolutely
essential features. If a law is passed
creating a State monopoly, the Court should
enquire what are the provisions of the said
law which are basically and essentially
necessary for creating the
(1) A.l.R. [1968] Punjab 391
(2) [1963] Supp. 2 S.C.R. 691.
455
State monopoly. It is only those essential
and basic provisions which are protected by
the latter part of Art. 19(6). If there are
other provisions made by the Act which are
subsidiary, incidental or helpful to the
operation of the monopoly, they do not fall
under the said part and their validity must be
judged under. the first part of Art. 19(6).
In other words, the effect of the amendment
made in Art. 19(6) is to protect the law
relating to the creation of monopoly and that
means that it is only the provisions of the
law which are integrally and essentially
connected with the creation of the monopoly
that are protected. The rest of the
provisions which may be incidental do not fall
under the latter part of Art. 19(6) and would
inevitably have to satisfy the test of the
first part of Art. 19(6)."
The provisions of the Act which seek to monopolise for the
State the, right to carry on cattle fairs are protected
against the challenge that they put an unreasonable
restriction upon persons carrying on the occupation of
holding cattle fairs. What is implicit in the grant of a
monopoly to the State is expressly enacted in s. 3(2) that
no other person or authority may conduct a cattle fair at
any place in the State of Punjab. But the restriction
operates only in respect of cattle fairs and not other
trades or occupations relating to dealings in cattle. The
Act is restricted in its scope: the prohibition imposed upon
all persons and authorities restraining them from holding,
controlling managing and regulating cattle fairs at any
place in the State of Punjab extend only to cattle fairs
strictly so-called, and not to cattle markets. The be
monopoly declared by the Act does not invest the State with
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the monopoly to conduct cattle markets, i.e., places where
the business of sale or purchase is regularly conducted by
private parties and not as a fair. Any attempt made by the
Officers of the State claiming to exercise authority under
the Act to prohibit cattle markets is without authority of
law.
The Act also does not invest the State with authority to de-
clare private property of an individual or of a local
authority, a fair area. Section 4(2). enables the Fair
Officer to define a fair area, to reserve sites or places
for certain facilities, to make temporary allotment for
commercial and other purposes and to arrange for watch and
ward and for construction of temporary offices. The Cattle
Fair Officer is not thereby authorised to hold fairs on
lands not belonging to the State. In defining a "fair area"
and in making reservation, allotment, construction and
arrangements of the nature mentioned in cls. (i) to (v) of
sub-s. (2) of s. 4 the Cattle Fair Officer cannot trespass
upon private property. It is implicit in the provisions of
the Act that the State will hold cattle fairs on its own
lands and not on private lands.
456
The words used in s. 4 are wide and may be capable of the
interpretation that the right to hold, control, manage and
regulate a cattle fair at any place in the State of Punjab
under S. 3 (1 ) authorises the State to hold, control,
manage and regulate fairs in all places including private
lands. But it would be reasonable to interpret the Act, so
as not to authorise violation of the fundamental rights
guaranteed by Arts. 19 and 31 of the Constitution. It is
implicit in the provisions of ss. 3 & 4 of the Act that the
monopoly acquired by the State to hold and manage cattle
fairs may be held on property belonging to the State and
does not extend to the property of local authorities or
private owners.
The contention that the provisions of the Act, and
especially the definition of "cattle fair" in s. 2(bb),
impose unreasonable restrictions upon the fundamental rights
guaranteed under Art. 19(1) (b) & (d) has, in our judgment,
no substance. The definition of cattle fair in s. (bb) does
not infringe the right of citizens under Art. 19(1)(b) to
assemble peaceably and without arms, and the right under
Art. 1 9 ( 1 ) (d) to move freely throughout the territory
of India. By the definition clause concourse of twenty five
persons is not prohibited: the Act does not place
restrictions upon the freedom of assembly or of free
movement either under cl. (b) or cl. (d) of Art. 19(1). The
Act only prohibits an individual or local authority from
arranging a gathering of more than twenty-five persons for
the purpose specified in the definition of "cattle fair".
The restriction for the purpose of making the monopoly
effective must be regarded as reasonable within the meaning
of cls. (3) & (5) of Art. 19.
By imposing restrictions upon the right to hold a fair, the
citizens are not deprived of their property, and the freedom
guaranteed by ’Art. 19(1)(f) is not infringed. The primary
object of the Act is to give a monopoly to the State to hold
cattle fairs. As a necessary concomitant of that monopoly,
holding of cattle fairs by local authorities and individuals
is prohibited. The prohibition flows directly from the
assumption of monopoly by the State and falls within the
terms of At. 19 (6) of the Constitution. It is a provision
of the law creating monopoly "basically and essentially
necessary" for creating the State monopoly to prevent other
persons from conducting the same business.
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Our attention was invited to the decision of this Court in
State of Bihar v. Rameshwar Pratap Narain Singh and
Others(1) and to a decision of the Madras High Court in
Mandivil Vania Pudukudi Ramunni Kurup and Others v.
Panchayat Board, Badagara and Others(2 ) in support of the
plea that a right to hold a fair is property. But those
cases have no bearing on the question arising in these
petitions. A law which creates a monopoly to
(1) [1962] 2 S.C.R. 382.
(2) A.I.R. [1954] Mad. 754.
457
carry on a business in the State and thereby deprives the
citizens of, the right to carry on that business by virtue
of Art. 19(6) is not open to challenge on the ground that it
infringes the Fundamental right guaranteed by Art. 19(1) (g)
: The law win not also be exposed to attack on the ground
that the right to carry on business is property, for the
validity of restrictions on the right to carry on
occupation, trade or business, or to practise any profession
must be adjudged only in the light of Art. 19(6). In any
event the presumption of reasonableness of a statute
creating a monopoly in the State may come to aid not only in
respect of the claim to enforce the right under Art.
19(1)(g) but under Art. 19(1)(f) as well.
Section 15 which authorises the State to call upon a Pancha-
yat Samiti of a Municipal Committee, within whose
jurisdiction the fair is to be held to deposit in the Cattle
Fair Fund the prescribed amount, not exceeding one thousand
rupees to cover the initial expenses of the fair and
compelling the local authority to abide by the directions,
is invalid. It is clearly a provision for deprivation of
property. Reasonableness of such a provision was not set up
either in the affidavit or in the arguments before us. It is
true that under s. 17 (d) out of the Cattle Fair Fund the
amount which has been recovered from a local authority may
be reimbursed, but the provision authorising the State to
call upon a local authority to pay a sum of money towards
the Cattle Fair Fund is, in our judgment, unreasonable and
must be declared invalid. The learned Attomey-General
appearing on behalf of the State of Punjab did not seek to
support the provision.
To sum up, the power which the State Government may exercise
to declare a fair area and to make provision for reservation
of sites, allotment of sites temporarily for commercial or
other purposes, and to arrange for watch and ward and to
construct temporary offices may be exercised only on lands
belonging to the State. No such power may be exercised in
respect of lands owned by local. authorities or individuals.
The monopoly which is acquired by the State by s. 3 is a
monopoly to hold, control, manage and regulate a fair and
not a cattle-market business. An attempt to prevent persons
from conducting the business of cattle. markets and from
holding, controlling, managing and regulating cattle markets
is unauthorised, for by s. 3 private individuals, local
authorities and associations incorporated or not are
prohibited only from holding cattle fairs and not cattle
markets.
In the light of these principles we proceed to examine the
claims made in the five petitions.
The Fair Officers have not made any declaration of fair
areas which include the lands of the petitioners in Writ
Petitions Nos.
458
362, 443 & 444 of 1968. In respect of the lands of the
petitioners in Writ Petitions Nos. 295 and 365 of 1968 a
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notification defining a fair area has been made.
Writ Petition No. 295 of 1968
This petition is filed by the Municipal Committee, Amritsar.
By letter dated August 26, 1968, the Deputy Commissioner,
Amritsar, informed the Municipal Committee that a cattle
fair was intended to be held as scheduled on the "Cattle
Fair Ground (Mal Mandi)", under the management of the
District Fair Officer, and the Municipal Committee was
required to arrange to supply water and electricity, to make
suitable sanitary arrangements, to deposit the income from
Baisakhi Cattle Fair in Government Treasury in Cattle Fair
Fund and to deliver the record in that behalf to the Fair
Officer. The Section Officer, District Amritsar, also
served an order, purported to be made under s. 4 (2) (i)
read with s. 2 (d) of the Punjab Cattle Fairs (Regulation)
Act, 1967, specifying the fair area, for the purpose of con-
trolling, managing, regulating and holding the Cattle Fair
from October 16, 1968 to October 27, 1968, at Ram Talui Ki
Mandi described as "2 Kilometres from the main building
situated in Cattle Fair Ground at Ramtabi’ (Mal Mandi)
Amritsar".
A Municipal Committee is not, according to the decisions of
this Court, a "citizen" within the meaning of Art. 19. The
Municipal Committee is, therefore, not entitled to claim
protection of. any of the fundamental rights under Art. 19.
But the State is incompetent to declare land belonging to
the Municipal Committee as falling within the fair area, and
to take possession of that land in exercise of the power
conferred by the Act, without providing for payment of
compensation guaranteed by Art. 31(2). The Municipal
Committee is by order of the Fair Officer deprived of its
property for the duration of the fair. The Act does not
authorise the holding of cattle fairs on the land of local
authorities, individuals or associations. A direction to
make Municipal property available for holding a cattle fair
by the State is a threat to requisition municipal property
without authority of law and without payment of
compensation, and must be deemed unauthorised. Section 23
of the Act which gives the provisions of the Act a paramount
operation, notwithstanding anything inconsistent therewith
contained in any other law for the time being in force will
not supersede a constitutional guarantee.
It was argued on behalf of the State that by the order only
directions to control, manage and regulate the fair held on
behalf of the Municipal Committee were intended to be given.
But that is not the effect of the order passed by the Deputy
Commissioner. The Deputy Commissioner informed the
Municipal Committee that possession of its land should be
handed over so that the State
459
may, be able to hold the fair under the provisions of the
Punjab Cattle Fairs (Regulation) Act, 1967. Section 3(1) is
intended only to provide for a monopoly in the State to hold
cattle fairs. and to control, manage and regulate such
fairs. The demand. made by the Fair Officer asking the
Municipal Committee to supply water, electricity and to make
sanitary arrangements and make the staff, articles. and
offices of the Municipal Committee available to the Fair
Officer is not warranted by any provision of the Act. The
notification issued by the Fair Officer defining the fair
area. inclusive of the land of Mat Mandi is, therefore,
unauthorised. The demand made by the Fair Officer for
assistance of the "staff, articles and offices of the
Municipality" for holding the fair and’ the demand for
supply of ’water and electricity and making suit-. able
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sanitary arrangements is also uncalled for and
unauthorised.. The directions must, therefore, be declared
invalid.
Writ Petition No. 362 of 1968
The petitioner is Sardara Singh. He claims that he is in
lawful possession of a piece of land situated in village
Hussainpur, Tahsil and District Rupar (Punjab), and that for
the last ten years he holds a cattle market on that piece of
land from the first to the fourth of every month. He also
asserted that he has been holding cattle markets on the
lands, in his lawful possession at Kurali, Anandpur Saheb,
Marunda (District Rupar) within the State of Punjab.
According to the petitioner, for the purpose of holding
cattle markets on the lands.in his occupation at Hussainpur,
the petitioner had constructed a well for providing water
to. the cattle, with sheds, and mangers. He further claimed
that he provides chaff cutters, tents, charpais and all
other amenities which are essential for the cattle and the
merchants. It appears from the averments made by the
petitioner that he is holding cattle fairs. No declaration
was made defining any fair area which included’ the lands of
the petitioner. The State, for reasons already set out, is
not entitled to hold a cattle fair on the land in the
occupation of the petitioner without providing for
compensation as guaranteed under Art. 31(2). But on that
account the petitioner is not entitled to hold a cattle fair
even on his own lands.
Writ Petition No. 365 of 1968
The petitioner is Jagtar Singh. He claims that he has
obtained for the period April 1, 1968 to March 31, 1969,
from the Municipal Committee, Amritsar, a piece of land on
lease called the Ahata near the."Butcher Khana" known as
"Adda BakarMandi". The land is used for an enclosure for
sheep and goats brought for sale. The petitioner states
that he has constructed near the Butcher-Khana ten kothas
around a vacant. piece of land for enclosure of goats and
sheep brought by prospective sellers and
460
has also constructed some rooms where he provides board and
lodging to the merchants who come to Adda Bakar Mandi in
connection with their business. He has set out in his
petition the manner in which the business is carried on and
the charges made by him. It may be sufficient to mention
that the petitioner claims that he conducts a cattle market
and not a cattle fair.
The Fair Officer issued a declaration under s. 4(2)(i) read
with s. 2(d) of the Punjab Cattle Fairs (Regulation ) Act,
1967, specifying "2 Kilometres from the main building
situated in the Cattle Fair Ground at Bakar Mandi outside
Lahori Gate" as a fair area for the purpose of controlling,
managing, regulating ’and holding the Cattle Fair, Amritsar,
at Bakar Mandi outside Lahori Gate. The Fair Officer also
addressed a letter to the petitioner dated October 25, 1968,
informing him that the Punjab Government had exclusively
undertaken the work of holding, managing, controlling and
supervising the Cattle Fairs under s. 3 of the Punjab Cattle
Fairs (Regulation) Act, 1967, and that the petitioner who
was carrying on the business of holding a cattle fair should
stop running the Bakar Mandi. The Fair Officer informed the
petitioner that the ground of the Bakar Mandi had already
been specified as fair area by him and on that account the
petitioner was prohibited to work as commission agent,
unless he got a broker’s licence under, the Act.
The land in, respect of which the declaration has been made
as fair area. is the land of the Municipal Committee, of
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which under a licence or a lease the petitioner is in
possession. For reasons which we have already set out, the
Government of Punjab is not competent to declare the land of
the Bakar Mandi a fair area. The notification declaring the
Bakar Mandi as fair area is, therefore, invalid.
By s. 3 of the Act the cattle fairs can be held in the State
of Punjab only by the State and by no other person. But
prima facie the business carried on by the petitioner is in
the nature of a market for sale of sheep and goats brought
by intending sellers for slaughter. Such a place cannot be
called a fair.
It was urged on behalf of the State that since the
petitioner was collecting brokerage and carrying on the
business of a broker, he was bound to take-out a licence
under s. 9 of the Act. But a person carrying on his
business within the fair area lawfully declared is required
to obtain a licence, but not in respect of his business in a
cattle market.
The petition filed by Jagtar Singh must, therefore, be
allowed and the order declaring the petitioner’s land as
fair area and the intimation calling upon him to stop his
business of cattle market is unauthorised.
461
Writ Petition Nos. 443 & 444 of 1968
The petitioner in these petitions are Narain Singh and
another. They claim that they are in ,legal possession" of
different pieces of land taken oil lease within the State of
Punjab at Khanna, Doraha (District Ludhiana), sunam
(District Sangrur) and also in other Districts where they
have been holding cattle markets for the last many years.
They claimed that they provide the Prospective sellers and
purchasers facilities like cots for resting, drinking water,
sheds,, mangers, chaff-cutters, tents, light, chowkidars,
dry fodder and all other essential amenities. They further
claimed that the intending vendors come to their lands with
cattle and sell the, cattle, bargains being struck. through
brokers in the market arranged by the Petitioners on those
pieces of land.
It is not clear from the averments made, in the petitions
whether the so-called market is of the nature of a fair.
the Petitioners are prohibited from holding or conducting a
cattle fair, since the enactment of Punjab Act 6 of 1968.
The lands belonging to the petitioners have not been
included in a cattle fair area under the notification issued
by the Fair Officer. Without deciding the question whether
the business carried on by the petitioners is in the nature
of a fair or a market, we declare that the petitioners are
not entitled to carry on the business of a cattle fair and
the, relief claimed by them in Paragraph-21(b) cannot be
granted. We deem it necessary to add that the petitioners
are not prohibited from carrying on the business of cattle
market on their own lands.
There will be no order as to costs in these petitions.
V.P.S.
sup CI/69-11
462