Seetharama Reddy, J.
1. The petitioners, 114 in number, complain that the Executive Officer, Tirumala Tirupathi Devasthanams, by a stroke of pen, under the guise of unguided statutory provision, put an end to their age-old business of bartering (tonsuring and haircutting) in Tirumala Hills area abridging thereby the fundamental right resulting in violation of Article 19(1)(g) of the Constitution of India.
2. The case is concerned with the rights of barbers in respect of their calling, viz., tonsuring and hair-cutting, vis-a-vis the Tirumala Tirupathi Devasthanams. But we must say something about 'tonsuring' as disclosed by the papers placed before us.
3. 'Tonsuring' denotes the well established concept of devotive offerings by pilgrims of their hair. In this case, it pertains to the 10-1/3 square miles of the Tirumala Hills, area wherein the main shrine of Lord Venkateswara is located and where pilgrims offer their hair to be shaven by barbers, to the deity. The Tirumala Hills area was alienated by the East India Company in favour of the Temple, and in fact, it was in exclusive possession of the shrine ever since 1874. The title of the Tirumala Tirupathi Devasthanams (for short TTD) for the entire area of 10-1/3 square miles was recognised by the State Government by G. O. Ms. No. 1784, Revenue Department, dated 4-11-1965 and G. O. Ms. Nos. 1605 and 1606 dated 2-12-1975. Centres of Kalyanakatta were established, where the hair offered by the pilgrims to the Lord is shaved and no hair-dressing or hair-cut-ling is carried on at the Kalyanakatta maintained by the TTD. Right to tonsure was the exclusive right of the TTD. In fact, the tonsure was performed through the agency of Mirasis. In the year 1975, when a dispute arose between the mirasidars and the other barbers, a suit was filed; and eventually, it was decided that the Mirasi office-holders of the Tirumala Kalyanakatta are solely and exclusively entitled to render tonsure to the pilgrim votaries, and the barbers have no manner of right to render tonsure to any pilgrim votary and they shall not induce any pilgrim votary to have tonsure. Therefore, the barbers were restrained by a permanent injunction from rendering the service of tonsure to any pilgrim votary offering his hair in discharge of a vow, either by themselves or through their agents. This was, in fact, confirmed by the High Court in 1963. See the judgment dated 23-7-1963 in S. A. No. 156 of 1960. For over a century, beginning from a decision reported in (1887) ILR 12 Bom 247 followed up by the decisions in (1896) ILR 23 Cal 645 and ILR 31 Mad 771 (sic) down to the decision of a Division Bench of the Madras High Court in A. S. No. 105 of 1977 dated 22-1-1979, the principle enunciated that under the law the Temple is the owner of the hair which its pilgrims leave behind after tonsure and that the barber, and for that matter, even the Pujaris and other service-holders attached to the temple, have no title to the hair, is well trenched. Therefore, the hair offered to the deity is the exclusive property of the TTD and the persons other than those authorised by the TTD cannot tonsure the heads of the pilgrims and appropriate the proceeds. The entire Tirumala Hills area surrounding the temple of Lord Venkaieswara is considered sacred and holy. Pilgrims are expected to have their tonsure immediately after their arrival at Tirumala at the place known as Kalyanakatta located at the entrance of the Tirumala Hills. Originally, 44 families of barbers by caste were rendering service of tonsure; and with the increase in the number of pilgrims, more than 500 barbers are now said to be rendering the service of tonsure under the direct control of the TTD and the emoluments for the service are paid by the TTD. It has been also stated across the bar that the income out of the sale proceeds of the said hair runs into several lakhs every year.
4. Now, the events, minimally necessary, that led to the filing of this Writ Petition may be narrated. It is averred in the petition that the petitioners have been carrying on the barber's profession in the Tirumala Hills since over 30 years. They have their residential houses in the Tirumala village. They have been catering to the needs of the residents of the village as well as the pilgrims in hair shaving and hair-cutting. The Tirumala Hills was declared as a village for the purposes of the Madras Village panchayats Act, 1950 within the meaning of Section 84 (3) of the Madras Hindu Religious and Charitable Endowments Act (Act 19 of 1951). Act 19 of 1951 was repealed by the A. P. Charitable and Hindu Religious Institutions and Endowments Act (Act 17 of 1966). By Act 17 of 1966, the Tirumala Hills area was not declared as a village by extending the A. P. Gram Panchayats Act, 1974. However, the A. P. Charitable and Hindu Religious Institutions and Endowments (Amendment) Act (Act 20 of 1976) came into force on 11-10-1975. Section 90 of the principal Act was amended and the Tirumala Hills Area once again became a village for the purposes of the A. P. Gram Panchayats Act. On 20-4-1976, a G. O. was passed implementing certain provisions of the A. P. Gram Panchayats Act, one of them being the obtaining of licences for carrying on business or trade. In pursuance thereof, a notification was issued on 4-5-1976 by the Executive Officer, TTD, imposing licence fee for using the place for hair shaving or hair-cutting. As things stood thus, the 2nd respondent, who is the Executive Officer of the TTD, passed a resolution dated 26-7-1976 resolving not to grant licences for shaving saloons or keeping shaving saloons in the Tirumala Hills area. The reason give was that it was in the interests of public health, safety and convenience of the residents and the pilgrims. On its heels came another resolution to close down the shaving saloons within three days from the notified date failing which prosecutions would ensua By virtue of the A. P. Gram Panchayats (Second Amendment) Act (Act 46 of 1976), Schedule III to the A. P. Gram Panchayats Act was amended and item ('O') i. e., 'keeping a hair dressing saloon' was omitted with effect from 19-8-1976. Hence the notification and the resolutions had no force. However, representations were vainly made to the Government Eventually W. P. No. 5531 of 1978 was filed in this Court; and this Court, by its order dated 30-11-1978 in W.P.M.P. No. 7588 of 1978, directed the respondents therein not to inten fere with the carrying on of the business of the petitioners in pursuance of the resolutions dated 26-7-1976. Rule Nisi was made absolute in the said writ petition by an order dated 28-9-1979. In the meantime, the Tirumala Tirupathi Devasthanams Act (Act 20 of 1979) was passed and published on 16th July, 1979, and by deeming provision, it came into force on 18-5-1979. However, an Ordinance, A. P. Ordinance No. 15 of 1979, published in Andhra Pradesh Gazette dated 3-12-1'979 was promulgated, which Ordinance has now become Act 8 of 1980. By Clause (4) of the said Ordinance, sub-sec, (3) of Section 27 of the Tirumala Tirupathi Devasthanams Act, 1979 (Act 20 of 1979) was amended by duly introducing item (vii) after item (vi) by way of addition. Item (vii) reads,
'(vii) tonsuring or hair cutting or opening and running of a heir dressing saloon by any person, other than a person authorised or employed by the Executive Officer.'
Under this amended Section 27 (3) of Act 20 of 1979, the 2nd respondent issued a notification on 6-12-1979 prohibiting the tonsuring or hair cutting or opening and running of hair dressing saloons by any person without authorisation. It is this amended provision that is sought to be declared as null and void.
5. The chief contention of Sri E. Manohar, learned counsel for the petitioners is two fold: (1) Licensing is essentially a legislative function and, therefore, the same cannot be delegated to the Executive Officer without guidelines. Any delegation without guidance would amount to arbitrary exercise of the power by the Executive Officer. Hence. Section 27 (3) of Act 20 of 1979 is constitutionally invalid as suffering from excessive delegation of legislative power. (2) The very existence of untrammelled power in Section 27 (3) without any guidance results in the imposition of unreasonable restrictions which offends the fundamental rights of the petitioners resulting in violation of Articles 14 and 19(1)(g) of the Constitution of India.
6. The counter-contention of the learned Advocate General is that it is not the mere existence of the unguided power but the actual exercise of it that should be judged with reference to arbitrariness, and if such power is exercised in accordance with the policy and object laid down by the Act, then it will not amount to offending Articles 14 and 19(1)(g) of the Constitution.
7. The relevant statutory provisions and also the judicial pronouncements may now be noticed. The object of the Tirumala Trupathi Devasthanjms Act, 1979, hereinafter referred to as 'the Act', is laid down in the preamble as under:
'An Act to provide for the better administration and governance of the Tirumala Tirupathi Devasthanams.'
Section 2 (m) of the Act defines 'Tirumala Tirupathi Devasthanams' as under:
' 'Tirumala Tirupathi Devasthanams' means the temples specified in the First Schedule and the endowments and properties thereof and shall include the educational institutions and the other institutions specified to the Second Schedule and the endowments and properties thereof and the Tirumala-Tirupathi Devasthanams shall be deemed to be constituted into a single religious institution for the purposes of the Act.'
Chapter II is titled as 'Tirumala Tirupathi Devasthanams Board and Tirumala Tirupathi Devasthanams Management Committee'. Section 5 under this Chapter lays down the powers and functions of the Board; it reads,
'The Board shall, in addition to the powers and functions entrusted to it by this Act. exercise such other powers and perform such other functions as may be prescribed in regard to matters of policy and general superintendence and review in relation to the administration of Tirumala Tirupathi Devasthanams having due regard to public interest and the services and amenities to be provided to, and welfare and safety measures to be undertaken for, the pilgrims, devotees and worshippers resorting to Tirumala Tirupathi Devasthanams.'
Ss. 6 and 7 speak of the constitution and the powers and functions of the Committee. Section 7 (2) and (5) reads.
'7. Subject to the provisions of this Act and the rules made thereunder-
(i) x x x
(ii) The Committee shall manage the properties, funds and affairs of the Tirumala Tirupathi Devasthanams and arrange for the conduct of the daily worship ana ceremonies and of the festivals in every temple according to its customs and usage;
(iii) & (iv) xxxxx
(v) the Committee shall exercise the general superintendence and control over the administration of the Tirumala Tirupathi Devasthanams in conformity with the policy laid down by the Board.'
8. Chapter III deals with officers and other staff of Tirumala Tirupathi Devasthanams. Under Section 17, the Government has the power to appoint an executive officer, a Joint Executive Officer, a Special Grade Deputy Executive Officer, a Financial Adviser and Chief Accounts Officer. Section 18 says,
'18 (1). A person to be appointed as Executive Officer shall be one who is holding or has held a post of the District Collector or a post not lower in rank than that of a District Collector in any other service in the State.'
Under Section 20 (1) (a), the Executive Officer is the Chief Administrative Officer of the Tirumala Tirupathi Devasthanams and he shall, subject to the control of the Committee have general power to carry out the other provisions of this Act, Section 20 (1) (b) lays down that the Executive Officer shall, inter alia, arrange for the proper collection of the offerings made in the temples specified in the First Schedule. Under Section 20 (2), the Executive Officer may delegate any of the powers conferred on or functions entrusted to or duties imposed on him by or under this Act to the Joint Executive Officer or Special Grade Deputy Executive Officer appointed under Sub-secticon (1) of Section 17 or to such other officer of the Tirumala-Tirupathi Devasthanams as the Executive Officer may deem fit subject to such restrictions and control as the Government may, by special or general order, lay down and also subject to such limitations and conditions, if any, as may be specified in the order of delegation.
9. Chapter IV deals with funds of Tirumala-Tirupathi Devasthanams and their utilisation. Section 23 (1) and (2) reads.
23. (1) The Tirumala-Tirupathi Devasthanams shall have its own funds the corpus of which shall include all the amounts received by it by way of donations, gifts, kanukas including offerings deposited in Hundis and any income from any other source and all payments by Tirumala Tirupathi Devasthanams shall be made from the said funds.
(2) The said funds shall be operated by an Officer or Officers authorised by the Committee in such manner and subject to such conditions as may be prescribed.'
10. Chapter V is titled as 'Civic Administration for Tirumala Hills area'. It starts with Section 27 which, in so far as it is relevant, may, however, be extracted:
'27. (1) The Government may, from time to time, notify in the Andhra Pradesh Gazette the limits of the Tirumala Hills area for the purposes of civil administration.
(2) (a) The Government may, by notification in the Andhra Pradesh Gazette, declare that any of the provisions of the Andhra Pradesh Gram Panchayats Act, 1964, or of the Andhra Pradesh (Andhra Area) Public Health, Act, 1939 and the rules made thereunder shall be extended to, and be in force in the Tirumala Hills area as notified under Sub-section (1) with such modifications not affecting the substance as may be necessary or proper for the purpose of adopting them to the Tirumala Hills area; and any such notification may likewise be cancelled or modified by a subsequent notification.
(b) without prejudice to the generality of the foregoing provision-
(i) the Tirumala Hills area as notified under sub-sec. (1) shall be deemed to b* a village for the purposes of the Andhra Pradesh Gram Panchayats Act, 1964 and a local area for the purposes of the Andhra Pradesh (Andhra Area) Public Health Act, 1939;
(ii) All references to a Gram Panchayat, the Sarpanch, executive officer or executive authority thereof in the Andhra Pradesh Gram Panchayats Act, 1964; and all references to a local authority, executive authority or executive officer in the Andhra Pradesh (Andhra Area) Public Health Act, 1939. shall, subject to the provisions of Sub-clause, (iii) and (iv), be construed as references to the Executive Officer in the said Tirumala Hills area;
(iii) Any appeal provided for by or under the Andhra Pradesh Gram Panchayats Act, 1964, from an order or decision of the Sarpanch, executive authority or executive officer of a Gram Panchayat, shall lie instead to the Commissioner of Panchayati Raj;
(iv) any appeal provided for by or under the Andhra Pradesh (Andhra Area) Public Health Act, 1939, from an order or decision of the executive authority or executive officer of a local authority to the local authority, shall lie instead to the Director of Medical and Health Services.
(3) (a) Subject to such rules as may be prescribed it shall be lawful for the Executive Officer by order to prohibit within the Tirumala Hills area notified under sub-sec. (1)-
(i) begging by any person; (ii) straying of any cattle, pigs or dogs; (iii) possession, use or consumption of any intoxicating liquor or drug;
(iv) possession, preparation or consumption of meat or other foodstuffs containing meat;
(v) slaughter, killing or maiming of any animal or bird for any purpose;
(vi) gaming with cards, dice, counters, money or other instruments of gaming.'
11. Chapter VIII deals with Appeals, Revision and Review. Sections 32, 33 (1) and 34 (1) read,
'32. Any person aggrieved may, within ninety days from the date of receipt by him of an order, appeal against such order, where it is passed by-
(i) The Joint Executive Officer or Executive Officer under any provision of this Act or any rules made thereunder, to the Committee;
(ii) The Committee under any provision of this Act or any rules made thereunder, to the Government:
Provided that where an appeal against an order of the Executive Officer is being heard by the Committee, the Executive Officer shall not participate in the deliberations of the Committee in relation to the said appeal. 33. (1) The Government may, either suo motu, or on application call for and examine the records from the Board or Committee or the Commissioner in respect of any administrative or quasijudicial decision taken or order passed under this Act to satisfy themselves as to the correctness, legality or propriety of such decision or order taken or passed and if in any case it appears to the Government that such decision or order should be modified, annulled, reversed, remitted for reconsideration they may pass orders accordingly.
Provided that every application to the Government for the exercise of the powers under this section shall be preferred within ninety days from the date on which the decision or order to which an application relates was communicated to the applicant:
Provided further that the Government shall not pass any order adversely affecting any person unless such person has been given an opportunity of making his representation.
34. (1) The Government may, either suo motu or on application from any person interested made within ninety days of the passing of the order under Section 32 or Section 33, review any such order if it was passed by them under any mistake whether of fact or of law or in ignorance of any material fact:
Provided that the Government shall not pass any order adversely affecting any person unless such person has been given an opportunity of making his representation.'
Section 4 (2) of Act 8 of 1980 which is an amendment to the Tirumala Tirupathi Devasthanams Act, 1979, reads:
'4. In Section 27 of the principal Act, in clause (a) of sub-sec. (3),--
(1) xx xx
(2) after item (vi), the following item shall be added, namely:-- '(vii) tonsuring or hair cutting or opening and running of a hair dressing saloon by any person, other than a person authorised or employed by the Executive Officer.'
12. At the outset, however, it may be stated that admittedly the petitioners have not chosen to apply to the Executive Officer for due licence to be accorded to them. They are making a grievance on the very existence of such a provision, After the notification dated 6-12-1979, permission to establish hair-cutting saloons was in fact granted to nine persons who applied for the same.
13. We shall presently turn to the authorities. But, authorities apart, on a construction of the provisions enacted in Section 27 (3) of the Act as amended by Act 8 of 1980, it seems to us that it is erroneous to suggest that an arbitrary and unbridled discretion has been conferred upon the Executive Officer to refuse or grant licence to the person who applies for it. From the various provisions of the Act, and in particular, Sub-section (3) of Section 27, it is evident that the Legislature did not have as its object in enacting this provision, to prohibit totally the business contemplated by them. The object was to regulate the business. It is equally clear that in the exercise of discretion, the Executive Officer cannot withhold a licence from a person who wishes to carry on business unless he does so for good reasons. When a statutory discretion is conferred upon an authority, that discretion does not permit that authority to do what he likes, to act with caprice or to act without reason or without fairness and justice. The limits of a statutory discretion have been well settled over a long time and in the very act of conferring a discretion upon an officer, the Legislature clearly requires that discretion must be exercised with reason, according to law, and fairly and justly so as not to prejudice the rights of any party who will be affected by the exercise of the discretion by that authority.
14. This is reinforced by Maxwell on the Interpretation of Statutes, Tenth Edition, page 123, wherein he says.
'Where, as in a multitude of Acts, something is left to be done according to the discretion of the authority on whom the power of doing it is conferred, the discretion must be exercised honestly and in the spirit of the statute, otherwise the act done would not fall within the statute. 'According to his discretion' means, it has been said, according to the rules of reason and justice, not private opinion; according to law and not humour; it is to be, not arbitrary, vague and fanciful, but legal and regular; to be exercised, not capriciously, but on judicial grounds and for substantial reasons.'
In other words, even though the Legislature may not indicate the nature of that discretion and how it should be exercised it is now fairly settled, that, if the act sufficiently formulates the legislative policy, the legal principles which are to govern the authorities in the exercise of the discretion vested in them under the Act, and as to how the provisions of the Act were to be carried out, then the discretion, be it unfettered, uncontrolled and Absolute, was not bad.
15. But, it is argued, placing reliance on the decision of the Supreme Court in Harakchand Ratanchand Banthia v. Union of India, AIR 1970 SC 1453, that the Supreme Court has taken a contrary view. In that case, the Supreme Court was concerned with the provisions enacted in the Gold (Control) Act, 1968; and some of the provisions were held to be constitutionally invalid being in excess of delegation of legislative powers and also under ground that they place unreasonable restrictions on the right to carry on trade.
16. Firstly, such provisions in the Gold (Control) Act are not in pari materia with the Act on hand. Secondly, the powers conferred on the Administrator under the Gold (Control) Act were that he could impose conditions, limitations and restrictions as he thought fit for different classes of dealers. Section 5 (2) (b) of the Gold (Control) Act, which has been struck down as excessive in delegation, clothes the Administrator with an authority to regulate by licences, the manufacture, distribution, use or consumption of gold in so far as it appeared to him to be necessary or expedient for carrying out the provisions of the Act. This apart, a parallel legislation is also conferred on the Central Government under Section 114. In those circumstances, therefore, the Supreme Court held that the power to regulate granted to the Administrator under Section 5 (2) (b) suffers from excessive delegation of legislative power. Likewise, with regard to the powers conferred on the Administrator for imposition of certain restrictions and conditions, they vary from dealer to dealer and, therefore, were held to be unreasonable restrictions offending Article 14 of the Constitution. It may, however, be stated that in the very same Judgment, it has been observed as under:
'When a law is challenged as violative of Article 14 of the Constitution, it is necessary in the first place to ascertain the policy underlying the statute and the object intended to be achieved by it Having ascertained the policy and object of the Act, the Court has to apply a dual test in examining its validity (1) whether the classification is rational and based upon an intelligible differentia which distinguishes persons or things that ara grouped together from others that ara left out of the group and (2) whether the basis of differentiation has any rational nexus or relation with its avowed policy and object.'
The next case is State of Punjab v. Khan Chand, AIR 1974 SC 543, wherein the Supreme Court by the majority judgment of four Judges, Mathew, J. dissenting, held:
'We may state that the vesting of discretion in authorities in the exercise of power under an enactment does not by itself entail contravention of Article 14. What is objectionable is the conferment of arbitrary and uncontrolled discretion without any guidelines whatsoever with regard to the exercise of that discretion.
XXXXX The enactment must, however, prescribe the guidelines for the furtherance of the objects of the enactment and it is within the framework of those guidelines that the authorities can use their discretion in the exercise of the powers conferred upon them. Discretion which is absolute, uncontrolled and without any guidelines in the exercise of the powers can easily degenerate into arbitrariness.'
In this majority judgment itself. It has been observed.
'It is the absence of any principle or policy for the guidelines of the authority concered in the exercise of discretion which vitiates an enactment and makes it vulnerable to the attack on the ground of violation of Article 14.'
Further, the majority judgment referred to the decision in Harishankar Bagla v. State of Madhya Pradesh, AIR 1954 SC 465, which dealt with the provisions of the Essential Supplies (Temporary Powers) Act, 1949, in the following terms;
'It was observed that 'the legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law'. This Court in that context examined the various provisions of the Essential Supplies (Temporary Powers) Act, 1946 and found that 'the Legislature had laid down such a principle in the Act and that the said principle was the maintenance or increase in supply of essential commodities and of securing equitable distribution and availability at fair prices.'
'The preamble and the body of the sections of the aforesaid Act, it was observed, sufficiently formulated the legislative policy and the ambit and the character of the Act.'
'This case can hardly be of any assistance to the appellants because as would appear from the above, the Legislature has not declared the policy of the Law and the legal principles which are to govern the authorities in the exercise of the discretion vested in them under the Act with which we are concerned in the present case.'
Again, the majority judgment referred to the decision of the Supreme Court in P. J. Irani v. State of Madras, : 2SCR169 . In that case, the constitutional validity of Section 13 of the Madras Buildings (Lease and Rent Control) Act, 1949 under which exemption could be granted to a building or class of buildings from the operation of all or any provisions of the Act was assailed on the ground that the said section violated Art 14 of the Constitution. The Supreme Court upheld the validity of that section on the ground that enough guidance was afforded by the preamble and the operative provisions of the Act for the exercise of the discretionary power vested in the Government. It was observed that the power under Section 13 of the Act for exempting any building or class of buildings was to be exercised in cases where the protection given by the Act caused hardship to the landlord or was the subject of abuse by the tenant. After such reference. Supreme Court observed.
'As the provisions of the impugned Act in the present case do not afford any guidance for the exercise of the discretionary power, the above case, in our opinion cannot be of much assistance to the appellants.'
17. The next case cited was Himat Lal v. Police Commr., Ahmedabad, AIR 1973 SC 37. That case was concerned with Section 33 (1) (o) of the Bombay Police Act and Rule T of the Rules framed thereunder. Section 33 (1) (o) conferred on the Government the rule-making power to regular the conduct of assemblies and processions. Rule 7 lays down that no public meeting shall be held on the public street unless the necessary permission has been obtained from the officer authorised by the Commissioner of Police. The Supreme Court upheld the provisions enacted in Section 33 (1) (o) but held, so far as R. 7 was concerned, that it gave power to the Commissioner to refuse permission to hold a public meeting, thus traversing beyond the scope of Section 33 (1) (o). In those circumstances, the said rule was struck down by observing thus:
'There is no mention in the rule of the reasons for which an application for licence can be rejected. 'Broad prophylactic rules in the area of free expression and assembly are suspect. Precision of regulation must be the touchstone in an area so closely touching our precious freedoms' (See National Association for the Advancement of Colored People v. Button, (1963) 371 US 415 at p. 438).'
To the same effect, we find the observations in the following decisions. The regulation leaves a trader not only at the mercy of the Committee but also without any remedy. Therefore even if the Sixth Schedule can be said to contain a policy and the Regulation may be said to have been enacted in pursuance of such a policy the analysis of the Regulation shows that that is not sufficient. Even if a statute lays down a policy it is conceivable that its implementation may be left in such an arbitrary manner that the statute providing for such implementation would amount to an unreasonable restriction, A provision which leaves an unbridled power to an authority cannot in any sense be characterised as reasonable. See Harichand Sarda v. Mizo District Council, : 1SCR1012 . Where power is entrusted to an administrative agency to grant or withhold a permit or licence in its uncontrolled discretion, the law ex facie infringes the fundamental right under Article 19(1). Imposition of restriction on the exercise of a fundamental right may be in the form of control or prohibition, but when the exercise of a fundamental right is prohibited, the burden of proving that a total ban on the exercise of the right alone may ensure the maintenance of the general public interest lies heavily upon the State. See Mohd. Faruk v. State of M. P., : 1SCR156 .
18. A long line of authorities has taken the view to the contrary. In Municipal Health Officer, Ongole v. Ranga-nayakulu, AIR 1962 Andh Pra 379, a Bench of this Court referred to the decision in P. J. George v. Municipal Commr., Trichur, (AIR 1957 Trav-Co 249) wherein it was observed.
'As adequate checks and controls are available, the provision does no more than strike a proper balance between the freedom guaranteed under Article 19(1)(g) and the social control permitted by Clause (6) of Article 19.'
The Bench also referred to the decision in Harishankar Bagla v. State of Madhya Pradesh : 1954CriLJ1322 (supra), wherein it is held.
'In the present control order there is no such provision as existed in the Uttar Pradesh Coal Control Order. Provisions of that Control Order bear no analogy to the provisions of the present Control Order. The policy underlying the order is to regulate the transport of Cotton textile in a manner that will ensure an even distribution of the commodity in the country and make it available at a fair price to all. The grant or refusal of a permit is thus to be governed by this policy and the discretion given to the Textile Commissioner is to be exercised in such a way as to effectuate this policy. The conferment of such a discretion cannot be called invalid and if there is an abuse of the power there is ample power in the courts to undo the mischief.'
And then, the Bench held.
'Thus even in a case where there was no right of appeal provided it was held that the conferment of a power on the executive where the policy of the legislation was evident, was not in violation of the fundamental rights guaranteed under the Constitution.'
It further held,
'In the instant case, however, there is a right of appeal provided and the authorities exercising the powers under Section 249 (3) are directed to pass a 'Speaking order' i. e., an order giving grounds for refusal or grant of the licence. It could not be said in the circumstances that the vesting of such powers in the Municipality was arbitrary or capricious.'
Vishnu Dayal Mahendra Pal v. State of U. P., : 1SCR376 , is concerned with the issue of licence by a Marketing Committee. The concerned rule, which is Rule 70 (4) (i) of the Rules framed under the U. P, Act No. 25 of 1964, reads,
'On receipt of such application together with the amount of fee prescribed under Rule 67, the Market Committee may issue him the licence applied for, if-
(a) it is satisfied that the applicant is solvent;
(b) it is satisfied that the applicant is a desirable person to whom a licence may be granted.'
Adverting to this, the Supreme Court held,
'There is sufficient guidance from the preamble and other provisions of the Act with which the members of the Committee owe their duty to be conversant.'
The Supreme Court further held.
'At any rate with the help of the Government officials in the Committee there is no reason to think that the work of the Committee will not function smoothly and that there will be any reason to apprehend that licences would be refused arbitrarily, x x Even the scope for such an apprehension is sought to be done away with by providing a provision of appeal igainst the decision of the Committee and also a further revision to the State Government. There is a further limitation on the power of the Committee by insisting upon recording of reasons while refusing a licence. It is, therefore, clear that a speaking order has to be passed when refusing a licence.'
And also held,
'Although perhaps a more expressive guidance could have been given, we have already observed that the Act itself provides sufficient guidance to the Committee in the matter of deciding whether a particular applicant is or is not a proper person to hold a licence and we cannot accede to the submission that the two criteria taken with the other guidelines from the provisions of the Act and the rules offer no proper guidance to the Committee in the matter of grant of licence.'
In Khatki Ahmed v. Limdi Municipality, : 2SCR338 , the Supreme Court, while distinguishing the ratio laid down in Mohd. Faruk v. State of M. P. : 1SCR156 (supra), held,
'That decision hardly helps. There a bye-law was challenged as violative of Article 19(1)(g). Here there is no law whatever which bans the grant of meat licences. Indeed, there are three other licensed meat stalls and the petitioner himself had a meat licence in a shop leased to him by the same municipality earlier which by efflux of time had expired. The law vests a discretion to be reasonably exercised in the context of citizen's fundamental right. The ground on which the Municipal body has refused licence here is not irrelevant and cannot be described as unreasonable within the meaning of Article 19(6) of the Constitution.'
It was further held,
'The bye-laws permit the Municipality, as the licensing authority, to grant or to refuse licences. No butcher, baker or circus manager can say that he has the unqualified right to get a licence on mere application. It is open to the licensing council -- indeed, is obligatory on its part -- to take note of all relevant circumstances and then decide whether, in the particular spot chosen by the particular applicant, a licence should be granted. Various factors enter the verdict and the local authorities are the best judge on these factual factors, not the court, especially this Court sitting at the third tier.'
19. In Govindji Vithaldas & Co. v. Municipal Corporation, Ahmedabad, : AIR1959Bom26 , Chagla, C. J., speaking for the Division Bench, held,
'Therefore, it is clear from this judgment (Dwaraka Prasad Laxmi Narain v. State of U. P., : 1SCR803 ) that if the Court can discover a policy underlying the law and if a discretion is conferred under that law, then the Court must hold that the discretion is to be exercised not in an arbitrary manner, not in a capricious manner, not in an uncontrolled manner, but in a manner so as to effectuate the policy of the law............... if the discretion is not exercised in this manner, then there is no exercise of power at all, there is an abuse of the power, and the Court has ample jurisdiction to rectify that abuse of power.'
Chagla, C. J., further held,
'If, on the other hand, the question was one of policy underlying the law as to how the law was to be enforced, and as to how the provisions of the Act were to be carried out, then a discretion, be it unfettered, uncontrolled and absolute, was not bad.'
20. The same is reflected in Harishankar Bagla v. State of Madhya Pradesh : 1954CriLJ1322 (supra), Glass Chatons Imports and Users' Association v. Union of India, : 1SCR862 , Daya v. Joint Chief Controller of Imports and Exports, : 2SCR73 and many other cases which need not be multiplied.
21. On a conspectus of case-law, the cardinal principles that emerge are: when the discretion conferred upon the Executive Authority in the matter of according permits or licences is complained of as being unbridled and unfettered and, therefore, offensive to Article 14 and also Article 19, it has to be seen whether the exercise of discretion is in accord with the policy underlying the statute and the object intended to be achieved by it. If, therefore, such policy and the object could be ascertained and the discretion exercised is reasonable and impartial and in conformity with the said policy and object, then, even if no guidelines are laid down for the exercise of discretionary power, the provision which confers the discretion, be it unbridled, unfettered and untrammelled, cannot be struck down unless, the actual exercise is demonstrably unreasonable and discriminatory. In other words, even if a power is discretionary, it need not necessarily result in a discriminatory exercise of it, unless it is shown to have been so exercised. The statute may also provide for checks and balances in the matter of exercise of such discretion, in that, it may make a provision for appeal or revision against such discretionary orders.
22. We will now examine, bearing in mind the principles stated above vis-a-vis the provisions of the Act and the discretionary power therein. It is manifest from the preamble and the other provisions of the Act, which have been extracted earlier, that the policy of the Act is to provide for the better administration and governance of the Devasthanams. The Executive Officer, is not only the Head of the civic administration of the Tirumala Hills area but also is in charge of and responsible for the proper maintenance and properties and also the proper collection of the offerings made in the temples. The Board of which the Executive Officer is the ex officio Secretary, has the overall power not only in regard to matters of policy and general superintendence; it has also got the power of review in regard to the administration of the TTD having due regard to public interest and the services and amenities to be provided to, and welfare and safety measures to be undertaken for, the pilgrims, devotees and worshippers resorting to the TTD.
23. In the context of historical background, we have already seen that votive offerings, which include tonsured hair requiring to be converted into cash before gaining entry into the temple Hundi, belong to the Deity. Therefore, in order to safeguard the interests of the Deity, which is one of the adjuncts of the policy viz., the better administration and governance of the TTD, guarding and augmenting its income which includes the offerings made in the temple, and also having due regard to public interest in the matter of not only providing services and amenities but also undertaking welfare and safety measures for the pilgrims visiting the temple and making offerings, the Executive Officer has exercised that discretion conferred on him under Sub-section (3) (a) of Section 27. The discretion so conferred, is not absolute in itself as the Executive Officer has stated in his notification which is quite in accord with the provisions of the statute itself. He has not placed complete embargo. What he has explicitly stated is that without authorisation, no person should resort to tonsuring or hair-cutting or opening a hair-cutting saloon in the Tirumala Hills Area. It is, therefore, evident that persons interested in carrying on such business or profession may apply for according the necessary permission and that permission will either be accorded or withheld depending upon the circumstances of the case, having due regard to public health, safety measures and also safeguarding the income and interest of the Deity. It has been brought to our notice that pursuant to the said notification, about 12 persons applied and out of them, 9 got licences to have hair-cutting saloons. It is, therefore, manifest from the above that the discretion which is said to be residing in the section is not so naked as it was sought to be made out
24. It may also be seen that the Act has provided remedial measures by way of appeal, revision and review to the Committee and the Government against the orders passed by the Executive Officer, which are, by way of safeguards, conspicuous constraints on the discretion so exercised by the Executive Officer.
25. The further submission of the learned Counsel for the petitioners is that even the tonsuring cannot be prohibited absolutely nor can it be carried on through the agency of the Devasthanams to the exclusion of others like the petitioners. To buttress the argument further, it is also submitted that it is the fundamental right of every pilgrim to have tonsured through any agency he liked and it is for the authorities to make suitable arrangements for the proper collection of the hair tonsured. The submission, though at first flush appears to be attractive, is, in our judgment, devoid of merit and substance.
26. It is well settled that just as the Government through its trading corporation, can, by a scheme of canalisation, carry on trade to the exclusion of other traders by refusing licences to them, without being violative to Articles 14, 19 or 31 of the Constitution, as the scheme of canalisation is not acquisition of right to carry on trade; so also it would be perfectly legal and constitutional for the TTD to create a centralised agency under its direct control, to the exclusion of all others, for tonsuring the hair of the pilgrims. This neither abridges any right of the petitioners, much less fundamental right, nor infringes Article 14 of the Constitution, as there is neither any competition nor choice in the matter of grant of licence. It is a total exclusion of the others in order to enforce effectively in the matter of collection of tonsured hair through a single agency.
27. In Daruka & Co. v. Union of India, : 1SCR570 , a constitutional Bench of the Supreme Court held,
'If the Government decides on an economic policy that import or export should be by a selected channel or through selected agencies the court would proceed on the assumption that the decision is in the interest of the general public unless the contrary is shown.
XXXXX Therefore, the dominant purpose of the scheme is canalisation of export and not to acquire the business or goodwill of traders in favour of the Corporation. The restriction on traders is reasonable. There is no acquisition of property of traders. The Corporation is an agency through which export is canalised to the total exclusion of citizens.
The contention that the impugned notice showed preference for the Corporation in the infringement of Article 14 is unsound. The Corporation is a State owned body. The Corporation is appointed to undertake this export scheme. No preference is shown to the Corporation. Where canalisation is decided no licence is granted in favour of any one. Therefore, there is neither any competition nor any choice in the matter of grant of licence. It is a total exclusion of citizens in order to enable all the country's exports to be made by one licencee.'
28. We need not multiply the authorities, as this decision gave a complete quietus to the query raised against by reiterating the ratio laid down earlier in Glass Chatons Imports and Users' Association v. Union of India, (AlR 1961 SC 1514) (supra) and Daya v. Joint Chief Controller of Imports and Exports : 2SCR73 (supra).
29. In sum,
(1) The mere existence of a discretion provided in the statute to be exercised by an Executive Authority, be it unguided, unfettered and untrammelled is not discriminatory unless it is shown to have been so exercised.
(2) If the discretion, unguided though, has been exercised reasonably and impartially and in accordance with the guiding principles of the policy laid down by the Act itself, then it will be beyond the pale or vice of arbitrariness and discrimination.
(3) If the licensing authority decides to canalise trade through special or specialised agency or channel to the complete exclusion of all others as per the policy disclosed in the Act, it amounts to neither acquisition of property nor abridgement of any fundamental right nor arbitrariness resulting in discriminatory exercise of the power conferred by the statute. It is a reasonable restraint on trade.
30. In view of the above, the contentions of the petitioners are rejected as devoid of merit and substance holding that,
(a) Sub-section (3) of Section 27 of the Act does not suffer from the vice of excessive delegation to the Executive Officer when it conferred the right of issuing licences or permits as there is sufficient guideline in the policy underlying the act.
(b) Sub-section (3) of Section 27 is not bad because of the mere existence of unbridled and unfettered discretion conferred on the Executive Officer as it has not been shown that the same has been exercised arbitrarily and capriciously.
(c) The Act of tonsuring canalised through the common agency of Mirasis employed by and under the control of the TTD to the complete exclusion of all others including the petitioners herein, is a reasonable restraint on trade; and so is not violative of Articles 14, 19 or 31 of the Constitution.
31. In the result, the Writ Petition is dismissed. No costs.
32. An oral application is made by Mr. E. Manohar for leave to appeal to the Supreme Court. We do not see any substantial question of law or of general importance which required consideration by the Supreme Court, involved in this Writ Petition. The oral application for leave is rejected.
33. Mr. E. Manohar also applies for suspension of this judgment. The status quo will continue for a period of six weeks so as to enable the petitioners to obtain appropriate orders from the Supreme Court, if so advised.