Vinod Khanna and Others; Ramesh Chandra Sharma and Another vs Union of India and Others

In these petitions the petitioners claim themselves to be the professional guides and under Article 226 of the Constitution they have sought for issuance of a writ in the nature of mandamus directing the respondents not to interfere with their working as professional guides. Further relief sought in these petitions is for issuance of a writ of certiorari quashing Rule 8 (d) of the rules framed under the Ancient Monuments and Archaeological Sites and Remains Act, 1958.

Since both the petitions involve common questions of law and fact, they are being disposed of by a common order to which the learned Counsel for the parties have no objection.

Learned Counsel for the petitioners urged that Rule 8 (d) is ultra vires inasmuch as it is repugnant to Articles 14 and 19 of the Constitution. Learned Counsel elaborated this argument by saying that no criterion has been indicated in rule for grant of licence. As regards the guidelines relied on by the respondents, the learned Counsel submitted that the Executive has no power to lay down guidelines in the matter of grant of licence. This argument is untenable. Rule 8(d) being regulatory in nature cannot be said to be destructive of the fundamental rights guaranteed by Article 19. Nor is the rule violative of Article 14 in that exercise of discretion in the matter of grant K licence is regulated by the guidelines which have been issued in discharge of executive function and as such the rule cannot be said to be suffering from the vice of arbitratiness.

Rule 8 (d) provides thus ;

"8 (d) Hawk or sell any goods or wares or canvass any customer for such goods or wares or display any advertisement in any form or show a visitor round for monetary consideration, except under the authority of, or under and in accordance with the conditions of a licence granted by an archaeological officer."

Rule 13 of the said rules further provides that on receipt of an application under Rule 12, the Director General may grant a licence in Form III if he is satisfied that having regard to the status of the applicant, the competence of director of excavation operation, the adequacy of the staff to be employed and other relevant factors, the licence may be granted to the applicant. Thus guidance has been provided for framing guidelines under the rules.

In writ petition No. 10714 of 1991 a counteraffidavit and supplementary counteraffidavit have been filed on behalf of the Union of India, in which it has been stated that in addition to the Statutory Rules the Department has laid down certain guidelines. In view of these averments it cannot be said that no guidelines have been provided in the matter of grant of licence under the rules. Learned Counsel for the petitioner then urged that the department has no power to lay down guidelines in the face of the Statutory Rules. This argument too does not impress us.

In Union of India v. H. R. Pathak, AIR 1984 SC 1587, the Hon''ble Supreme Court has laid down that in case of statutory rules if the rules are silent on any particular subject, it is competent to the Government by executive order to make rules to fill in the lacuna in the status of rules. It is not asserted that the guidelines framed by the Government are repugnant to the Act or the rules. This argument too is of no avail to the petitioners. The controversy in question has been concluded by Division Bench decision in case Virendra Kumar Chaddha v. Union of India and others CMW P. No. 10714 of 1991 decided on 1091992. In this view of the matter we find no merit. Accordingly we dismiss the writ petition.