S. Velu Pillai, J.
1. An auction of the right to vend meat was held by the first respondent Panchayat, in the year 1959, at which, the petitioner was the highest bidder for a sum of Rs. 5,005/-, out of which, he paid Rs. 1,251.25 pursuant to the auction. He was vending meat exclusively within the limits of the Panchayat. Subsequently, he came to learn, that auctions of such right are not valid.
All the same, the Panchayat was taking steps to realise the balance due from him. He has therefore filed this petition under Article 226 of the Constitution, to bring up the records relating to the auction to have it quashed, to prohibit the Panchayat from interfering with the petitioner's business and to direct the second respondent, the Executive Officer of the Panchayat, to issue a licence to him for the sale of meat for the year 1959-60.
2. It was common ground, that the auction was held by the Panchayat before the necessary bye-laws were framed by it and that it was not valid. The bye-laws were subsequently framed and it is now for the petitioner to apply to the panchayat under the bye-laws, for the .requisite licence. The only prayer, which was pressed for the petitioner was, that the auction may be quashed, as otherwise the Panchayat may enforce payment of the balance due from the petitioner.
The learned counsel for the respondents contended, that having enjoyed a monopoly, as it Were, of vending meat, for the year in question in pursuance of the auction, the petitioner is estopped from challenging it and in any event, whatever contentions the parties may have in a civil suit, the petitioner ought not to be allowed any relief in the exercise of the discretionary jurisdiction of this Court under Article 226. On the other hand, it was maintained, that the petitioner has a fundamental right under Article 19(1)(g) of the Constitution, to practise any trade or profession unhampered by any restriction imposed on him by an illegal auction and that there can be no waiver by him of his fundamental right.
3. The learned counsel for the petitioner invited my attention to a few decided cases, but only Busheshar Math v. Commissioner of Income-tax, Delhi and Rajasthan, AIR 1939.SC 149, has dealt with the subject of waiver of a fundamental right. In the above case, the question arose in relation to the right under Article 14 of the Constitution. The learned Chief Justice of India and Kapur, J., were of the opinion, that 'whatever breach of other fundamental right a person or a citizen may or may not waive, be cannot certainly give up or waive a breach of the fundamental right' under Article 14.
Bhagwati and Subba Rao, JJ,, held, that it is not open to a citizen to waive any of his fundamentalrights conferred on him by Part III of the Constitution, but S. K. Das, J., dissented from this view and held, that where the right or privilege guaranteed is primarily intended for the benefit of the individual, it can be waived by him. There is thus no conclusive opinion in the above case regarding the waiver of a fundamental right under Article 19(1)(g).
For the disposal of this petition, it is not necessary to consider more than, whether the petitioner having enjoyed the monopoly under the auction can be granted relief under Article 226. In deciding this question, the judgment of Bhagwati, J., in the above case, furnishes an answer. While laying down that a fundamental right can be waived, S. K. Das, J., cited the following illustration :
'Suppose a man obtains a permit or a licence for running a motor vehicle or an excise shop. Having enjoyed the benefit o the permit for several years, is it open to him to say when action is proposed to be taken against him to terminate the licence, that the law under which the permit was granted to him was not constitutionally valid? Having derived all the benefit from the permit granted to him, is it open to him to say that the very Act under which 'a permit was granted to him is not valid in law?'
His Lordship was of the view, that startling results would follow if it is decided, that a fundamental right can never be waived. Bhagwati, J., answered the question raised, in the following manner:
'If a citizen wanted to assert his fundamental right under the circumstances envisaged for instance in the judgment of my brother S. K. Das, J., and made an application for a writ under Article 32 or Article 226 of the Constitution he would be promptly confronted with the argument that the Court should in the exercise of its discretion refuse him the relief prayed for. The remedy is purely discretionary and no Court in those circumstances would exercise its discretion in his favour....... Even then he might merely obtain a relief declaring the legislation ultra vires the Constitution and the Court would not grant him any consequential relief. For that relief he would have to approach the regular Court of law, when all questions of law, apart from the mere constitutionality of the provision would be considered by the Court on a contest between the parties, e.g., estoppel, acquiescence limitation and the like.'
Even though Bhagwati;, J. was of the view, that a fundamental right under Part III of the Constitution cannot be waived, His Lordship did not consider, that interference under Article 32 or Article 226 would he warranted under all circumstances. In the case of Thomas George v. Pazhavangadikara Panchayat, 1957 Ker LT 342: (AIR 1957 Kerala 85) the petitioner was not even one of the bidders at the impugned auction, and there was nothing on record to show, that 'he acquiesced in the proceedings or that he did anything, in respect of the said auction, which will estop him from filing this petition under Article 226 of the Constitution'.
4. The petitioner leaving virtually excluded all other competitors in the field, by offering the highest hid at the auction and having enjoyed the benefit for the full term, I am of the view, that I will notba justified in exercising the discretion under Article 226 in favour of the petitioner. He may have to work out his rights in a civil suit properly framed for the purpose. This petition is dismissed, but without costs.