1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR J U D G M E N T 1. S.B. Civil Writ Petition No.5607 of 2004. Bhagwat Singh Ranawat son of Shri B.S. Ranawat VERSUS Union of India and Others 2 S.B. Civil Writ Petition No.8221 of 2005. Hemant Agarwal son of late Shri Ram Gopal Agarwal VERSUS Union of India and Others 3. S.B. Civil Writ Petition No.7615 of 2005. Prahalad Singh son of late Gulab Singhji & Another VERSUS Union of India and Others Date of Order ::: 19th September, 2008. Hon'ble Mr. Prem Shanker Asopa, J. Mr. Bajrang Lal Sharma, Senior Counsel, assisted by Mr. C.S. Sharma and Mr. R.A. Katta, with Mr.P.S. Tomar,Counsel for Petitioners Mr. Kamlakar Sharma Mr. Kunal Rawat and Mr. Sumit Khandelwal, Counsel for the Respondents **** Reportable/ By the Court :- The common questions of the facts and law are involved in all these three writ petitions relating to 2 the challenge to the notification dated 21st January, 2003 (Annexure-1) issued by the Central Government under Section 29-(a) of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (here-in- after to be referred as the Act of 1958), whereby the Central Government appoints an Additional Director General, (Department of Tourism), Ministry of Tourism as the `statutory authority' under the Act for framing and issuing guidelines, for issuance of the Guide Licenses, approval and registration of qualified persons selected through due process by a Committee constituted for the purpose to operate in the protected monuments of national importance, therefore, same are being decided together. For the purpose of the decision of these present writ petitions, the facts of the writ petition bearing No.5607 of 2004 are taken as leading facts. It is stated in the petition that the petitioner is a duly approved Regional Tourist Guide since 1985 selected, trained and approved by the Government of India through the Department of Tourism and further duly authorized by the Archaeological Officer, Department of Archaeological, Government of India. The petitioner 3 was also the President of the Heritage Tour Guide's Society, Jaipur, an association of duly approved guides operating in the Northern India. The membership of aforesaid society consists of approved tourist guides. It is further stated that the writ petition was filed by the petitioner on his behalf for the collective benefits of the members of the aforesaid Society and for the protection and enforcement of their constitutional and legal rights. The question of law involved in all these three writ petitions is whether under Section 29 (a) of the Act of 1958 the Central Government is competent to appoint an Additional Director General, (Department of Tourism), Ministry of Tourism as the `statutory authority' for framing and issuing guidelines, for issuance of Guide Licenses, approval and registration of qualified persons. The submission of the learned counsel for the petitioners is that in exercise of power conferred by Section 38 of the Act of 1958, the Central Government made rules titled as the Ancient Monuments and Archaeological Sites and Remains Rules, 1959 (here-in- after to be referred as the Rules of 1959). According to the Rule 8 (d) of the Rules 1959 no person shall within a protected monuments show a visitor round for monetary 4 consideration except under the authority of, or under and in accordance with the conditions of a licence granted by, an archaeological officer. The Archaeological Officer defined under Section 2 (c) of the Act of 1958 means an officer of the Department of Archeology of the Government of India not lower in rank than Assistant Superintendent of Archeology. Further, under Section 38 (1) of the Act of 1958, the Central Government may, by notification, in the Official Gazette and subject to the condition of previous publication, make Rule for carrying out the purposes of the Act, which as per Clause 38 (2) (c) of the Act of 1958 pertains to the right of access of the public to a protected monument and the fee, if any, to be charged therefor, and that a conjoint reading of Section 38 (2) (c) of the Act of 1958 and Rule 8 (d) of the Rules of 1959 would reveal that the licence is to be granted by an Archaeological Officer along with the condition of the same, therefore, the general provisions of delegation, as laid down under Section 29 of the Act of 1958 would not apply. The said delegation of powers under Section 29 of the Act of 1958 is to the exclusion of the Rules of 1959, as the Rules of 1959 itself are covered by the terms “Subordinate Delegation”. 5 The submission of the learned counsel for the respondents Shri Kamlakar Sharma is that the notification dated 21st January, 2003 issued under Section 29 (a) of the Act of 1958 is within competence of the Central Government and there is no conflict between the Act of 1958 and Rules of 1959 in this regard. In support of his submission, he cited one judgment of the Hon'ble Supreme Court in the case of B.P. Sharma Vs. Union of India, reported in (2003) 7 S.C.C. 309, wherein the condition in Clause 17 of license, which prescribed that “when a guide attains the age of 60 years the identity card issued to him/her will not be renewed further” has been held to be ultra-vires being contrary to Clause 6 of the Article 19 (1) (g) of the Constitution of India, and the same could not be covered by Section 18 of the Act of 1958, which relates to the public and not employment as guide. I have gone through the record of these writ petitions and further considered the rival submissions made by the learned counsel for the parties. The Hon'ble Supreme Court in the aforesaid judgment i.e. B.P. Sharma (Supra) considered the definition of the Archaeological Officer given under 6 Section 2 (c), the right of access of the public to a protected monument, and further considered Sections 18 and 38 (2) (c) and (d) of the Act of 1958, along with Rule 8 of the Rules 1959 in Para 7 of the aforesaid judgment and further discussed the said provisions of fixing of the age beyond which a person may not allow to carry on the profession of guide beyond the age of 60 years in Para Nos.8 to 12. The relevant Paras i.e. 7 to 12 of the aforesaid judgment, are as follows : “7. “The Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958) was enacted to provide for preservation of ancient and historical monuments and archaeological sites remains of national importance, for the regulation of archaeological excavations and for the protection of sculptures, carvings and other objects of the kind. Our attention is drawn to Section 18 of the Act which reads as under :- “ 18. Right of access to protected monument.-- Subject to any rules made under this Act, the public shall have a right of access to any protected monument.” Section 38 provides for power of the Central Government to frame rules for carrying out the purpose of the Act. Sub-Section (2) provides: “ 38 (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely- (a) – (b) (c) the right of access of the public to a 7 protected monument and the fee, if any, to be charged therefor; (d) the form and and contents of the report of an archaeological officer or a licensee under clause (a) of sub section (1) of Section 23; Consequently, the Government framed rules known as the Ancient Monuments and Archaeological Sites and Remains Rules, 1959. Our attention has been drawn to Rule 8 which is to the following effect; “8. Prohibition of certain acts within monuments.-- No person shall within a protected monument.-- (a) do any act which causes or is likely to cause damage or injury to any part of the monument; or (b) discharge any firearms; or (c) cook or consume food except in areas, if any, permitted to be used for that purpose; or (d) hawk or sell any goods or wares or canvass any custom for such goods or wares or display any advertisement in any form or show a visitor around for monetary consideration except under the authority of, or under and in accordance with the conditions of a license granted by, an archaeological officer; or (e) beg for alms; or (f) violate any practice, usage or custom applicable to or observed in the monument; or (g) bring, for any purpose other than the maintenance of the monument, (i) any animal; or (ii) any vehicle except in areas reserved for the parking thereof.” The main stress is on clause (d) of Rule 8 which provides that no person shall show a 8 visitor around for monetary consideration except under the authority of, or under and in accordance with the conditions of a licence granted by an archaeological officer”. “8. On the basis of the above provisions, it is sought to be explained on behalf of the respondents that by statutory rules framed under the provisions of the Ancient Monuments and Archaeological Sites and Remains Act, 1958, the profession of such persons who may take the visitors around fro monetary consideration can be regulated by laying down conditions of a license for the purpose by an archaeological officer. An archaeological officer is defined under Section 2 (c) of the Act: “ 2. (c) `archaeological officer' means an officer of the Department of Archeology of the Government of India not lower in rank than Assistant Superintendent of Archeology.”l 9. “The learned counsel for the appellant has vehemently urged that the powers derived by virtue of Rule 8 (d) framed under the authority of Section 38 to give effect to Section 18 of the Act by no means empowers an archaeological officer to fix an age beyond which a person may not be allowed to carry on the profession of guide. We find that Section 18 of the Act only creates a right in the public to have access to any protected monument. It would of course, be subject to any rule made under the Act, but by no stretch of imagination this provision can be pressed into service for prescribing any age beyond which a guide shall not have the right to hold a license to carry on his profession. The right of access to monuments given under Section 18 to the public is apparently not connected with the profession which is carried on by the guide holding an identity card/license issued by a competent authority. As a member of the public, even a guide may have a right to visit or enter into a protected monument complying with the rules which may be applicable to any visitor/tourist as a member of the public. It is not compulsory that a tourist must take a guide with him. Therefore, in our view a reference to Section 18 made on behalf of the respondent 9 has no direct bearing on the point under consideration, its indirect impact, however, we may consider a little later.” 10. “Now coming to Section 38, we find that the Central Government under clause (c) of sub section (2) can make rules in respect of the right of access of the public to a protected monument and the fee etc., which may be charged therefor. It is certainly referable to Section 18 of the Act. It may be that by implication, the access to the protected monument may include the entitlement of the members of the public to know about the details of the monument, its historical background and other connected matters, which information they generally obtain through the guides. Therefore, it could be considered necessary to regulate the other related matters of right of access to monuments e.g. matters pertaining to the profession of guides. The Central Government might like to see that the tourists are properly informed and not misguided or fleeced by unscrupulous guides or such elements posing to be guides, though to engage a guide is optional on the part of the tourist. In this light, we now advert to Rule 8 (d) of the Rules which provides certain prohibitions, saying that no person shall show a visitor around for monetary consideration except under the authority or conditions of license granted by an archaeological officer. The purpose of rule 8 (d) is clear that the place may remain protected,be maintained and be kept neat and well and no person may charge a visitor for taking him around the place except one who is authorized as an approved guide. His charge would be as fixed.” 11. “The whole reading of all the three provisions viz., Section 18, 38 and Rule 8(d) leads only to the conclusion that the nature of power is only regulatory. It does not in any manner lead to creation of relationship of master and servant between the State and the approved guides; nor even to any relationship, contractual in nature. It is already indicated earlier in reference to the conditions laid, that minimum standard of basic knowledge has 10 been provide for and the conduct and behavior of guides has been channelized in many ways but it is to be seen as to whether the condition of clause 17 can be said to be within the regulatory power derived from the above noted provisions or not”. 12. “It may be pertinent to mention that one of the submissions made on behalf of the petitioners is that the identity card has been issued and conditions have been laid by the Regional Director, Tourism, Government of India and not by the archaeological officer of the Archaeological Survey of India, Government of India. As a fact, we find that an officer of the Archaeological Survey of India has countersigned the identity card and the conditions laid down by the Department of Tourism. However, it may not be necessary to go into that aspect of the matter since no other objection has been raised before us in respect of any other condition laid down in the identity card for the approved guides. The case of the respondents is that the two departments of Tourism, have to work in collaboration with each other as access to the protected monuments is intimately connected with the tourism and the tourists. Therefore, both the departments are equally involved. An officer of the Archaeological Survey of India has also countersigned the identity card and the conditions laid for their conduct etc. We would like to leave this matter here alone without going into any other detail since it will not be necessary for deciding the validity of clause 17 on the ground we propose to test.” The Controversy raised in this writ petition is to be decided with reference to Section 29 (a) of the Act of 1958, which is as follows : 11 29. Delegation of powers.- - The Central Government may, by notification in the Official Gazette, direct that any powers conferred on it by or under this Act shall, subject to such conditions as may be specified in the direction, be exercisable also by -- (a) such officer or authority subordinate to the Central Government, or (b) such State Government or such officer or authority subordinate to the State Government, as may be specified in the direction. The Hon'ble Supreme Court in Para 12, considered involvement of both the Department of Tourism and Archaeological Department for laying down the condition and countersigned the identity card by Archaeological Survey of India has observed that they are equally involved. However, it was also observed that it may not be necessary to go into that aspect of the matter since no other objection has been raised before them in respect of any other condition laid down in the identity card for approval of the guides and left that matter their alone without going into any other necessary details on the issue that raised in the last part of Para No.7 that the main stress is on Clause (d) of Rule 8, which provides that no person shall show a visitor around for monetary consideration except under the authority of, or under and in accordance with the conditions of a licence granted by 12 an archaeological officer” as the condition of fixing the maximum age 60 years under Clause 17 of the License was declared as ultra-vires on Clause 6 of Article 19 read with Article 19(1) (g) of the Constitution of India, meaning thereby the Hon'ble Supreme Court has not considered the law of the competence of the Government of India under Section 29 to appoint the Regional Director, Tourism, Government of India as the `statutory authority' to frame an issue guidelines, approved and registered guides, therefore, the issue of competence of the Central Government to issue notification under Section 29 of the Act of 1958 is not covered by the said judgment. I have considered the rival submissions made by the learned counsel for the parties with reference to Section 2 (c), 38 (2) (c) of the Act of 1958 and Clause (d) of Rule 8 of the Rules of 1959 and is of the view that once the power has been given to regulate the condition of license to an Archaeological Officer, then the same could have been delegated to the Regional Director, Tourism, Government of India, therefore, the notification dated 21st January, 2003 is without jurisdiction. 13 Before parting with the judgment, I would like to deal with the preliminary objection raised by Shri Kamlakar Sharma, the learned counsel for the respondents that the petitioners have been granted license under the same notification and are continuing as guide, as per the conditions of the said license, which has been renewed and subsequently an advertisement dated 21st January, 2008, which has also been issued on the basis of the same guidelines, therefore, the petitioners are estopped from challenging the notification. On raising query whether estopple is apply against the statutes, Shri Kamlakar Sharma, learned counsel for the respondents has not emphasized on the said preliminary objection for the reason that the law is well settled that their cannot be any estopple against the statute. Accordingly, all these three writ petitions are allowed. The notification dated 21st January, 2003 (annexure-1) is declared without jurisdiction. However, the existing arrangements will continue for a period of three months and in the meanwhile the Central Government take appropriate steps in accordance with the Rule 8 (d) of the Ancient Monuments and Archaeological Sites and Remains Rules, 1959 and 14 framed under Section 38 (2) (c) of the Ancient Monuments and Archaeological Sites and Remains Act, 1958. No order as to costs. (Prem Shanker Asopa) J. ashok/ 15 Court No.21. For pronouncement of judgment on ________ 1. S.B. Civil Writ Petition No.5607 of 2004. ` Bhagwat Singh Ranawat son of Shri B.S. Ranawat VERSUS Union of India and Others 2 S.B. Civil Writ Petition No.8221 of 2005. Hemant Agarwal son of late Shri Ram Gopal Agarwal VERSUS Union of India and Others 3. S.B. Civil Writ Petition No.7615 of 2005. Prahalad Singh son of late Gulab Singhji & Another VERSUS Union of India and Others Mr. Bajrang Lal Sharma, Senior Counsel, assisted by Mr. C.S. Sharma and Mr. R.A. Katta, with Mr.P.S. Tomar,Counsel for Petitioners Mr. Kamlakar Sharma Mr. Kunal Rawat and Mr. Sumit Khandelwal, Counsel for the Respondents By Order Court Master 16 S.B. Civil Writ Petition No.5607 of 2004. Bhagwat Singh Ranawat son of Shri B.S. Ranawat VERSUS Union of India and Others Date of Order ::: 19th September, 2008. Hon'ble Mr. Prem Shanker Asopa, J. Mr. Bajrang Lal Sharma, Senior Counsel, assisted by Mr. C.S. Sharma and Mr. R.A. Katta, with Mr.P.S. Tomar,Counsel for Petitioners Mr. Kamlakar Sharma Mr. Kunal Rawat and Mr. Sumit Khandelwal, Counsel for the Respondents In the result, the writ petition is allowed. (See separate order). By Order Court Master 17 S.B. Civil Writ Petition No.8221 of 2005. Hemant Agarwal son of late Shri Ram Gopal Agarwal VERSUS Union of India and Others Date of Order ::: 19th September, 2008. Hon'ble Mr. Prem Shanker Asopa, J. Mr. Bajrang Lal Sharma, Senior Counsel, assisted by Mr. C.S. Sharma and Mr. R.A. Katta, with Mr.P.S. Tomar,Counsel for Petitioners Mr. Kamlakar Sharma Mr. Kunal Rawat and Mr. Sumit Khandelwal, Counsel for the Respondents In the result, the writ petition is allowed. (See separate order in S.B. C.W.P. No.5607/2004). By Order Court Master 18 S.B. Civil Writ Petition No.7615 of 2005. Prahalad Singh son of late Gulab Singhji & Another VERSUS Union of India and Others Date of Order ::: 19th September, 2008. Hon'ble Mr. Prem Shanker Asopa, J. Mr. Bajrang Lal Sharma, Senior Counsel, assisted by Mr. C.S. Sharma and Mr. R.A. Katta, with Mr.P.S. Tomar,Counsel for Petitioners Mr. Kamlakar Sharma Mr. Kunal Rawat and Mr. Sumit Khandelwal, Counsel for the Respondents In the result, the writ petition is allowed. (See separate order in S.B. C.W.P. No.5607/2004). By Order Court Master