1 REPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.5391 OF 1998. The Tourist Operator Association of Aurangabad, 168/A, Shastrinagar, Garkheda Road, Aurangabad, through the Secretary. ... Petitioner. Versus 1.The Manager, Government of India, Tourist Office, Station Road,Aurangabad. 2. The Regional Director, Government of India Tourist Department, 123, N Jarve Road, Opp.Churchgate, Mumbai-20, Maharahstra. 3. The Union of India, Department of Tourism, Government of India, Parliament Street, New Delhi-110001, through the Standing Counsel, High Court of Judicature of Bombay, at Aurangabad. ... Respondents. 4. Aurangabad Tourist Guides Welfare Association, "Rajgriha" Samtangar, Aurangabad through it's President Mohd.Ali Hashmi, Age major, Occ.Guide ... Intervenor. ... 2 Mr.T.K.Prabhakaran, advocate for the petitioner. Mr.Alok Sharma, Asstt.Solicitor General of India, for Respondent Nos.1 and 3. Mr.Pravin C.Wagh, advocate for the Respondent No. 4 - Intervener. WITH WRIT PETITION NO.5509 OF 1998. 1. Ramkrishna Baburao Pitambare, Age 43 years, Occ.Tourist Guide, R/o Begampura, Aurangabad. 2. Shaikh Ayasuddin Gayasuddin, Aged 32 years, Occ.Tourist Guide, H.No.1888, Opp.Jamamazjid, Buddilane, Aurangabad. 3. Inder Narayan Sethi, Aged 46 years, Occ.Tourist Guide, H.No.3-12-55, Rajabazar, Aurangabad. 4. Mohammed Raees Iqbal, Aged 43 years, Occ.Tourist Guide, H.No.3-5-106, Mullamchi Bazar, Aurangabad. 5. Abdul Gani S/o Mabud, Aged 35 years, Occ.Tourist Guide, H.No.1-24-8, Kala Darwaza Road, Near Noble Driving School, Aurangabad. 6. Shaikh Mustafa Shariff S/o Ahmed Hussain, Aged 50 years, Occ.Tourist Guide, H.No.3-1-36, Barud Ghar Nala, Aurangabad. 7. Ashok Balaram Bedekar, Aged 45 years, Occ.Tourist Guide, Aurangpura, Aurangabad. 8. Shaikh Quadeer Sk.Bashir, 3 Aged 40 years, Occ.Tourist Guide, H.No.4/11/60/P, Roshan Colony, Kiradpura, Aurangabad. 9. Nasim S/o Osman Khan Durrani, Aged 46 years, Occ.Tourist Guide, H.No.5-17-33,Samtanagar, Aurangabad. 10. Khalilkhan S/o Dadekhan, Aged 48 years, Occ.Tourist Guide, H.No.316, Dana Bazar, Cantonment, Aurangabad. 11. Ignatius Raphel Kapse, Aged 44 years, Occ.Tourist Guide, Bungalow No.25, Cantonment, Aurangabad. 12. Milind Kasinath Wagh, Aged 36 years, Occ.Tourist Guide, R/o Sonchafa, 171, Tilaknagar, Aurangabad. 13. Sudhir Kasinath Wagh, Aged 46 years, Occ.Tourist Guide, H.No.1888, Opp. Jamamazjid, Buddilane, Aurangabad. 14. Sayyad Hamid Ali, Aged years, Occ.Tourist Guide, Aurangabad. 15. Tejinder Singh Gulati, Aged 43 years, Occ.Tourist Guide, H.No.N3/405, Cidco, Aurangabad. ... Petitioners. Versus 1. The Manager, Government of India, Tourist Office, Station Road, Aurangabad. 2. The Regional Director, Government of India Tourist Department, 123, N Jarve Road, Opp.Churchgate, Mumbai, Maharashtra. 4 3. The Union of India, Department of Tourism, Government of India, Parliament Street, New Delhi-110001, through the Standing Counsel, High Court of Judicature of Bombay, at Aurangabad. ... Mr.T.K.Prabhakaran, advocate for the petitioner. Mr.Alok Sharma, Asstt.Solicitor General of India, for Respondent Nos.1 and 3. ... WITH WRIT PETITION NO.311 OF 1999. Aurangabad Transport Syndicate, P.B.No.98, Juna Bazar, Aurangabad-431 001, through The Managing Partner ... Petitioner. Versus 1. The Government of India, Tourist Office, 'Krishna Vilas', Station Road, Aurangabad. through the Manager. 2. The Union of India, through the Standing Counsel for U.O.I. ... Respondents. ... Mr.R.V.Ghuge, advocate for the petitioner. Mr.Alok Sharma, Asstt.Solicitor General of India for Respondent Nos.1 and 2. ... 5 WITH WRIT PETITION NO.1155 of 1999. 1. Liyakat Ali S/o Sadat Ali Khan, Aged 46 years, Occ.Tourist Guide, R/o H.No.1-22-65, Kabadipura, Aurangabad. 2. Mohd. Asif-Ur-Rehman S/o Wahid-Ur-Rehman, Aged 56 years, Occ.Tourist Guide, R/o H.No.994/A, Cantt.,Aurangabad. 3. Shankar B.Borale (Patil), Aged 46 years, Occ.Tourist Guide, R/o 45, New Nandanvan Colony, Cantonment Area, Padegaon Road, Aurangabad. 4. Siddharth Tularam Pradhan, Aged 48 years, Occ.Tourist Guide, R/o Sheku Niwas, Paithan Gate, Aurangabad. ... Petitioners. Versus 1. The Govt. of India, Tourist Office, 'Krishna Vilas', Station Road, Aurangabad, through the Manager. 2. The Union of India, through the Standing Counsel for U.O.I. ... Respondents. ... Mr.R.V.Ghuge, advocate for the petitioner. Mr.Alok Sharma, Asstt.Solicitor General of India for Respondent Nos.1 and 2. ... 6 CORAM : B.R.GAVAI AND : S.V.GANGAPURWALA,JJ. Date : 11.08.2010. JUDGMENT (Per S.V.Gangapurwala,J.) 1. All these Writ Petitions involve common question of law, as such are decided together. 2. W.P.No.5391/1996 is filed by the Association of Tourist Operators. W.P.No. 5509/1998 is filed by approved Tourist Guides. W.P.No.311/1999 is filed by the excursion agents and Tour Operators. W.P.No.1155/1999 is filed by the Tourist Guides. 3. The petitioners have assailed the Circular dated 9.12.1998, issued by the Manager, Government of India, Tourist Office, Aurangabad. 4. Vide the said impugned Circular dated December 9, 1998, the Respondent NO.1 in W.P.No. 5391/1998 has directed that all guide assignments would be directly handled by the Manager, Government of India, Tourist Office, Aurangabad. 7 It is further directed in the said Circular that all the Travel Agents, Tour Operators and other concerned to send their requisitions of guides at its office. 5. We have heard respective counsels for the parties. 6. Mr.T.K.Prabhakaran, learned counsel for the petitioners in W.P.No.5391/1998, W.P.No. 5509/1998 and Mr.R.V.Ghuge, learned counsel for petitioners in W.P.No.311/1999 and W.P.No. 1155/1999 have canvassed following propositions : (i) The Manager who has issued the said Circular does not have any jurisdiction on the Tour Operators. (ii) The Manager who has issued the Circular has no power to issue such Circular as against the directions of the Regional Director. The Regional Director vide its order dated 25.2.1995, had issued directions that all Guide assignments in the jurisdiction of Manager, Government of 8 India, Tourist Office, Aurangabad will be handled directly by Guides/Guides' Association, Travel Agencies/Tour Operators, Government of India, Tourist Office will cease to assign Guides on requisition to Travel Agents and Tour Operators. (iii) The impugned Circular is violative of Article 19(1)(g) of the Constitution of India. (iv) Even executive instructions issued in 1996 do not lay down such restrictions as is imposed by the impugned Circular. (v) If the impugned Circular is implemented then the said practice which is sought to be followed would not be feasible and viable. The Guide may be required at the 11th hour, at that time, the Tourist office may be closed, as such said practice would not be practicable. 7. Mr.Alok Sharma, learned Assistant Solicitor General of India, appearing for the Union of India submitted : 9 (i) It is within the competence of the authorities to provide for regulations regulating the functioning of the Guide by virtue of powers U/s 18 and 38 of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (hereinafter referred to as Ancient Monuments Act, 1958 for short) and the Rules framed thereunder, more particularly Rule 8(d) of the Ancient Monuments and Archaeological Sites and Remains Rules, 1959 (hereinafter referred to as the Ancient Monuments Rules 1959 for short) and for the said purpose relied on the judgment of the learned Single Judge of the Delhi High Court in case of "Anuj Johri Vs. Union of India". (ii) The said Circular is in consonance with the instructions and the guidelines effective from February 1996. (iii) The apprehension of the petitioners that the said practice would not be viable is improper as the Tour Operators and excursion agents know well in advance their requirements. The Circular impugned would not be violative of 10 Article 19(1)(g) of the Constitution of India. The same is subject to reasonable restrictions. The right to carry on profession of Guide is not a fundamental right. For the said purpose relies on the judgment of the Allahabad High Court in a case of "Pavan Kumar and others Vs. Union of India and others" AIR 1995 Allahabad 440. 8. Mr.Pravin Wagh, the learned counsel for the Intervener i.e. Aurangabad Tourist Guides Welfare Association supported the arguments of Mr.Alok Sharma, the learned Asstt. Solicitor General of India, for Union of India. 9. Before adverting to the arguments advanced by the learned counsels for the respective parties, it would be appropriate to refer to the relevant provisions of the Ancient Monuments Act and Ancient Monuments Rules 1959. "Section 18. Subject to any rules made under this Act, the public shall have a right of access to any protected monument. 11 Section 38(1). The Central Government may, by notification in the Official Gazette and subject to the condition of previous publication, make rules for carrying out the purposes of this Act. (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) the prohibition or regulation by licensing or otherwise of mining, quarrying, excavating, blasting or any operation of a like nature near a protected monument or the construction of buildings on land adjoining such monument and the removal of unauthorized buildings; (b) the grant of licenses and permissions to make excavations for archaeological purposes in protected areas, the authorities by whom, and 12 the restrictions and conditions subject to which, such licenses may be granted, the taking of securities from licensees and the fees that may be charged for such licenses; (c) the right of access of the public to a protected monument and the fee, if any, to be charged therefor; (d) the form and contents of the report of an archaeological officer or a licensee under clause (a) of sub- section (1) of section 23; (e) x x x x (f) x x x x (g) x x x x (h) x x x x (i) x x x x (3) x x x x (4) All rules made under this section shall be laid for not less than thirty days before each House of Parliament as soon as possible after they are made, and shall be subject to 13 such modifications as Parliament may make during the session in which they are so laid or the session immediately following." 10. Rule 8 of Ancient Monuments Rules 1959 prohibits certain acts within the precincts of the monuments. It reads as follows : "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 fire-arms; 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 round for monetary consideration, except under the authority of or under and in accordancew3ith the conditions of a 14 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." 8. Clause (d) of Rule 8 was subsequently substituted, vide notification dated 16th February, 1971, as follows : "(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 round or take his photograph for monetary consideration, except under the authority of, or under, and in accordance with the conditions of a license granted by an Archaeological 15 Officer; or" 11. It would also be appropriate to refer to some of the clauses of the revised guidelines of 1996 issued by the Department of Tourism, Government of India for direct selection of guides more particularly Annexure III governing the terms and conditions regulating the conduct and performance of approved guides. "11. The guide will not refuse without valid reasons any assignment given to him/her by the Tourist Offices of the Central/State Governments or other agencies such as travel agents/tour operators/hoteliers, etc. 15. The guide will accept all assignments including those for FITs. groups, coach tours,k excursions, etc. These will be accepted as per the rules and on prescribed fee. 25. The approved guide will accept 16 assignments only to the region for which a guiding license has been granted by the Govt. of India Tourist Office. He will be entitled to accompany tour groups on all India basis as an escort on payment of fees by travel agents to be mutually negotiated. On escort duty, a guide will only conduct sightseeing of monuments under the area of jurisdiction which will be spelled out in his guiding license. At all other places the services of approved guides of that relevant region/area shall have to be engaged. 27. The guide will abide by the existing rules and any other rules and conditions that may be framed from time to time by the Department of Tourism and the Archaeological Survey of India, failing which the identity card issued to him/her shall be withdrawn." 17 12. Section 38 of the said Act of 1958, gives power to the Central Government to make rules for carrying out the purpose of the Act. It also lays down the matters in respect of which the Rules can be framed. It is the contention of the Respondents that pursuant to these powers U/s 38, the Rules of 1959 have been framed and Rule 8 has given ample power to the authorities to restrict the activities of the persons. Perusal of Rule 8(d), which is relied upon by the learned Asstt. Solicitor General of India, while contending that the said Circular was within the province of the Manager, it is manifest that no person shall within a protected monument shall show a visitor around or take his photograph for monetary consideration except under the authority of or under, and in accordance with the conditions of a license granted by an Archaeological Officer. In view of the powers vested under the rules, licenses have been issued to the guides by the competent authority. We have perused the license produced on record issued to the Guides. There is no condition in the said license that the Guides to whom the 18 license is issued shall be allotted the work only by the Tourist Office. From the perusal of the guidelines issued by the authority more particularly, the clauses quoted above, it would be evident that an obligation is cast on the guide that he will not refuse without valid reasons any assignment given to him/her by Tourist Offices of the Central/State Government or other agencies such as Travel agents/Tour operators. Clause 15 also mandates the same. 13. When the guidelines which are issued lays down a mandate that the Guides will have to accept the assignment given to them even by Travel agents/Tour operators and when the license issued by the competent authority does not impose any such restriction then the impugned Circular would be against the dictate of the said guidelines and the license. 14. It is also evident that the Regional Director of Government of India, Bombay had issued directions that all guide assignments in the jurisdiction of Manager, Government of India 19 Tourist Office will be handled directly by guides/guides' association, Travel agencies/Tour operators then in the face of said directions. In the light of these directions by a superior authority, the Manager of the Government of India, Tourist Office, Aurangabad would not have any jurisdiction to over-ride said directions. The said Circular is without authority, arbitrary as such is violative of Article 14 of the Constitution of India. 15. It has also been brought to our notice that subsequently the Director, Ministry of Tourism vide its Circular July 28, 1999 has clarified that the Ministry of Tourism has no longer any control on either the guide assignments or guide fees to be charged by the guides. In view of the said communication, the impugned Circular would also lose its efficacy and the same would not remain in force. 16. The authorities relied on by the learned Asstt. Solicitor General of India, does not in any way assist the Respondents. The 20 judgment in a case of "Pavan Kumar and others Vs. Union of India and others" cited supra lays down that no person has a right to act as a guide inside any national monument except under the license granted under and in accordance with the provisions of Rule 8(d). It has further held that the Tourism Department of the Government of India, is empowered to issue executive orders laying down the conditions on fulfillment of which the license can be issued. There can not be any debate on the said aspect. In the present case, the license is issued to the guide and the issue is when once a license has been issued to the guides and there is no condition in license that the work would be allotted to them only by Tourist Office then in such circumstances, the Manager of a Tourist Office at Aurangabad can not have the jurisdiction to issue such fiat. The judgment of the Delhi High Court in a case of "Anuj Johri Vs. Union of India and others" referred above is on different issue. It deals with conduct of examination/test every year for the grant of license to work as a Tourist 21 Guide/Escort. Same is not an issue in the present matter. 17. When the license issued to the guide does not lay down condition that the work would be assigned to them only by the Tourism Department, so also no provision in the statute lay down such a restriction upon functioning of a guide, then the said Circular laying down such restrictions would be curbing the rights of the Guides to carry on their avocation thereby infringing their fundamental rights guaranteed by Article 19(1)(g) of the Constitution of India. Though reasonable restrictions are permissible, the same has to be in consonance with the statutory provisions. In the present case, there is no statutory provision or a Rule which lays down a condition or qualification that the work to the guides would only be assigned by the Tourist Office. In such circumstances, the impugned Circular would be certainly violative of Article 19(1)(g) of the Constitution of India. 18. For the aforesaid reasons, that is : 22 (a) The said Circular is against the directives issued by the Regional Director vide its order dated 25.2.1995 (b) The same is not in consonance but contrary to the revised guidelines issued in 1996 regarding the terms and conditions regulating the conduct and performance of approved guides and license. (c) The Circular is without authority, arbitrary as such violative of Article 14 of the Constitution of India. (d) Subsequently, the Director of Ministry of Tourism on July 28, 1999 issued instructions that the Ministry of Tourism has no longer any control on either guide assignments or guide fees. (e) The said Circular infringes the fundamental rights of the Guides guaranteed under Article 19(1)(g) of the Constitution of India. 23 We hold that the impugned Circular dated December 9, 1998 is bad in law, interalia, we quash and set aside the said Circular. 19. Rule made absolute accordingly with no order as to costs. The Civil Applications are disposed of. (S.V.GANGAPURWALA,J.) (B.R.GAVAI,J.) asp/office/wp539196