S.R. Das Gupta, C.J.
(1) This petition is directed against two notifications both dated 7th November 1958, one of which was issued by the Additional District Magistrate, Tumkur, who is the 1st respondent before us and the other by the Tahsildar-Magistrate, Sira Taluk, who is the 2nd respondent before us. By the first notification the District Magistrate purporting to exercise power under Section 39(1) of the Mysore Police act, 1908, prohibited all the people in Sira Town the carrying of arms, cudgels or other weapons, the carrying, collection and preparation of stones or other missiles or other instruments or means of casting or impelling missiles, the exhibition of persons or of corpses or figures thereof, the public utterances of cries, singing of songs, playing of music, delivery of harangues, etc., for a period of one week from 10th November 1958. By the said notification the District Magistrate also ordered that if anybody wanted to take out a religious procession, they should take out a license from the Tahsildar and Ex-officio Second Class Magistrate, Sira, under Section 45 of the Police Act and when going in procession they should not deliver harangues or sing songs or use gestures or mimetic representations or carry symbols or placards which may be of a nature to inflame religious animosity or hostility between different classes.
It was further ordered by the District Magistrate in his said notification that persons carrying on a religious procession should not go through Megalpet road. In the notification of the Tahsildar, which is also of the same date, it was notified that the said Tahsildar by virtue of the powers vested in him under S. 45 of the Mysore Police Act, 1908, prohibited the conduct of all assemblies and processions, the playing of music and beating of drums, tom-toms or other instruments and blowing or sounding of horns or other noisy instruments within the municipal limits of Sira for a period of two months from the said date, i. e., 7-11-1958 except through a license issued by him or any other competent authority. The petitioner before us is a resident of Sira Town and a Councillor of the Municipality of the said town. He challenges both the notifications in this petition on several grounds.
(2) It will be seen that the period mentioned in the notification of the District Magistrate, which came into force from 10th November 1958, has already expired on 17th November 1958. The said notification therefore is no longer operative. The other notification issued by the Tahsildar-Magistrate, Sira Taluk, holds good for a period of two months from the date of the said notification, and the same is now operative.
(3) The learned Advocate appearing on behalf of the petitioner challenged both the notifications. So far as the notification issued by the District Magistrate is concerned, he contended on the authority of a decision of this High Court, which followed a decision of the Bombay High Court, that even though a notification has ceased to be operative the High Court can quash the said notification. I shall deal with this contention hereafter. So far as the notification issued by the Tahsildar-Magistrate, Sira Taluk, is concerned, the learned Advocate for the petitioner attacked the same on various grounds. His principal contention was that Section 45 of the Mysore Police Act, 1908, in pursuance of which the said notification was issued, was ultra vires the Constitution of India inasmuch as it conflicts with Art. 19 of the said Constitution. In order to appreciate this point it would be necessary to set out Section 45 of the Mysore Police Act under which the said notification was issued. The said section reads as follows:
'The District Magistrate, any First Class Magistrate, any Amildar or Deputy Amildar may, within the local limits of his jurisdiction (for the preservation of public peace or public safety) regulate and control by the grant of licenses or otherwise the conduct of all assemblies and processions and playing of music, beating of drums, tom-toms or other instructions and the blowing or sounding of horns or other noisy instruments in or near a street.'
The learned Advocate for the petitioner contended in the first place that Article 19 of the Constitution confers upon the citizens of India the fundamental right, amongst others, of assembling peaceably and without arms and to move freely throughout the territory of India. This right is subject to reasonable restrictions which may be imposed by a State in the interests of public order. The learned Advocate contended before us that Section 45 of the Mysore Police Act, 1908, which empowers the persons named in the said section to require license to be obtained for taking out processions in public streets, conflicts with the provisions of Article 19 of the Constitution inasmuch as it imposes restrictions on processions, which means restriction on the fundamental right of assembling peacefully and moving freely, and such restriction cannot be said to be reasonable restriction.
The said contention of the learned Advocate for the petitioner is based on the fact that by the said section power has been given to one individual to exercise the power of regulating and controlling by the grant of license or otherwise all assemblies and processions. The learned Advocate contended that such conferment of power on an individual to restrict the freedom of taking out processions, which Article 19 of the Constitution confers upon citizens of India, amount to unreasonable restriction on such freedom. I am unable to accept this contention of the learned Advocate for the Petitioner. In fact such a contention was negatived by their Lordships of the Supreme Court in the case of Dr. N. B. Khare v. State of Delhi, : 1SCR519 . In that case the provisions of the Punjab Public Safety Act came to be questioned before their Lordships. One of the contentions urged was that Section 4 of the said Act gives power to make an order of externment to the District Magistrate whose satisfaction is final and not open to review by the Court. It was contended that this is an unreasonable restriction on the exercise of the citizen's right within the meaning of Article 19(5) of the Constitution and is therefore invalid. Their Lordships did not accept this contention. Chief Justice Kania in the course of his judgment observed as follows:
'It was argued ton behalf of the petitioner that under Section 4 the power to make an order of externment was given to the Provincial Government or the District Magistrate whose satisfaction was final. That decision was not open to review by the Court. On that ground it was contended that there was unreasonable restriction on the exercise of the citizen's right. In my opinion, this argument is unsound. This is not legislative delegation. The desirability of passing an individual order of externment against a citizen has to be left to an officer. In the Act such a provision cannot be made. The satisfaction of the Officer thus does not impose an unreasonable restriction on the exercise of the citizen's right.'
In my opinion, these observations apply with equal force to the present case. The present legislation, i.e., the Mysore Police Act, cannot be said to be a legislative delegation nor can it be said that the restriction imposed under Section 45 of the said Act is an unreasonable restriction. In this case also the desirability of passing an order under Section 45 has to be left to an individual officer. Such a provision cannot be made in the section itself. That being so. I cannot accept the contention of the learned Advocate for the petitioner that by conferring such a power an unreasonable restriction has been put on the fundamental right of the citizens.
(4) The next ground urged by the learned Advocate was that the Act abridges the constitutional right under Article 19 because it gives power to impose license. The imposition of license is, according to him, a restriction upon the fundamental right of a citizen which cannot be said to be a reasonable restriction. I am also unable to accept this view. Section 45 provides, in the interests of public order and for the preservation of public peace or public safety, that the persons named in the said section may regulate the conduct of assemblies, processions etc., by a license or otherwise. Requirement of license can be said to be one of the modes by which a possession or assembly can be regulated or controlled. I do not think that such requirement is unreasonable. This contention of the learned Advocate for the Petitioner must therefore also fail.
(5) Although none of the above contentions urged on behalf of the petitioner can be accepted as sound, the notification issued by the said Tahsildar must fail on another ground, which I shall presently indicate. The said notification violates the provisions of Section 45 of the Police Act and is in excess of the powers conferred under the said section. I have already referred to the provisions of the said section 45 of the Mysore Police Act. It permits the officers mentioned in the said section to regulate and control by the grant of licenses or otherwise the conduct of all assemblies and processions, playing of music beating of drums, etc., in or near a street.
The section thus permits the control and regulation of assemblies, and processions by the grant of licenses or otherwise and playing of music, beating of drums, etc., in or near a street. What the Tahsildar has done in his notification is to forbid the conduct of all assemblies and processions, playing of music and beating of drums, etc., throughout the municipal limits of Sira Town for the period mentioned except through a license to be obtained from him or other competent authority.
The net result of this notification is that any body residing in any part of the Municipal town who desires to play music or blow or sound horns or use noisy instruments has to go to the Tahsildar or some competent authority to obtain license before he can do so. This is not what section 45 of the Police Act contemplates. It contemplates control and regulation of processions and playing of music, etc., in or near a street. The order in question therefore clearly violates the provisions of section 45 of the Police Act and is in excess thereof. The said order must therefore the held to have been passed without jurisdiction and should be set aside. On this ground we hold that this petition, so far as it relates to the order of the Tahsildar, Sira Taluk, dated 7th November 1958, must succeed and we make an order accordingly.
(6) With regard to the notification issued by the Additional district Magistrate, Tumkur, the learned Advocate has, as I have already mentioned contended that although the said order has spent its force this court can cancel the same. In support of that proposition he relied on a decision of the Mysore High Court reported in AIR 1951 Mys. 17 at p. 19, Siddegowda v. Kullegowda. On the merits of that order, the learned Advocate contended before us that the same which was made under section 39(1) of the Mysore Police Act was in excess thereof. The said section does not empower the District Magistrate to prohibit processions but the District Magistrate by his said order has prohibited religious processions to be taken out through Megalpet road. The District Magistrate has also imposed restriction on religious processions by ordering that anybody who wanted to take out such processions must obtain license from the Tahsildar. All these the District Magistrate cannot do under Section 39(1) of the said Act. The learned Advocate contended that the said order exceeded the permissible limits of section 39(1) of the Mysore Police Act in imposing such prohibitions.
(7) On these grounds be contended that this order should be set aside. I must confess that there is considerable force in the said contentions urged before us on the merits of the order passed by the District Magistrate. It however seems to us that in view of the fact that the order has already spent its force no useful purpose would be served by giving any decision on the said contentions. This court may have power as observed by their Lordships in AIR 1951 Mys. 17 to quash an order although it has spent its force but whether or not this court would exercise such power would depend on the circumstances of the case. We do not feel justified in the circumstances of this case in making an order quashing the order of the Additional District Magistrate of Tumkur dated 7th November 1958.
(8) The result therefore is that this petition so far as it relates to the notifications of the Tahsildar passed on 7th November 1958 is allowed and we make an order quashing the said notification. The petitioner will be entitled to the costs of this petition.
Narayana Pai, J.
(9) I agree.
(10) Order accordingly.