Miabhoy, J. - (1.) The petitioner Shri Indulal Kanaiyalal Yagnik has preferred this petition under Article 226 of the Constitution. He challenges inter alia, the constitutionality of Clause (r), Sub-clause (iii) of Sub-section (1) of Section 33 of the Bombay Police Act, 1951, (hereafter called the 'Act'), and the rules made thereunder. The challenge is on the ground that the clause and the rules are violative of Articles 19 (1)(a) and 14 of the Constitution. The petitioner also challenges an order, dated 8th March 1961, passed by the second respondent, who is the Police Commissioner of Ahmedabad. The challenge is on the same grounds. The petitioner also challenges the act of the third respondent, by which the latter seized a microphone from petitioner's possession.
(2.) A party bearing the name of "Ahmedabad. Janata Samiti" was formed to contest the Municipal elections which were to be held at Ahmedabad in March 1961. The 'Samiti' put up 45 cor.didates at the election. The petitioner, who was the elected President of this 'Samiti', wrote a letter, dated 6th March 1961, to the second respondent, and informed him that he intended to hold a meeting on 8th March 1961 at about 9-00 P.M. in Manek Chawk near a place called 'Tilak Maidan' and requested him to grant him permission to use a loudspeaker thereat. The meeting was obviously intended to carry on propaganda for the 'Samiti'. The permission was sought under the rules framed by the District Magistrate, Ahmedabad, by his notification No. 565, dated 2Sth July 1953, as amended by his notification, dated 16th September 1954. It is common ground that these rules were in force on the date in question. The rules were framed by that officer under the power vested in him by Sub-clause (iii) of Clause (r) or Sub-section (1) of Section 33 of the Act. Rule No. 1 prohibited every person from using a loudspeaker in or near any public place, without obtaining a licence from the District Magistrate. It is not disputed that the powers which were conferred upon the District Magistrate by Section 33 of the Act were exertis-abie by the Police Commissioner of Ahmedabad after the City of Ahmedabad was placed under the charge of a Police Commissioner. It is also not disputed that, on the relevant date, the aforesaid two notifications, dated 28th July 1953 and 16th September 1954, were in force and that the powers conferred upon the District Magistrate by Section 33 and the rules made thereunder were exereisable by the Police Commissioner, the second respondent. The second respondent refused to grant permission for use of a loudspeaker to the petitioner and communicated this decision to the petitioner by his letter, dated 8th March 1961. In spite of this refusal, the petitioner used a loudspeaker at the meeting, which he held on 8th March 1961 at about 9-00 P.M., in pursuance of the intention which he had communicated earlier to the second respondent. Thereupon, G.R. Sindhi, P. S. I., Manek Chowk Police Choki, the third respondent, within whose jurisdiction the meeting was held, went up to the petitioner at the meeting and called upon him to desist from making use of the loudspeaker. The petitioner, however, refused to listen and continued the use of the microphone and the loudspeaker. Thereupon, purporting to act in the exercise of the powers given to him under the Polica Act, the third respondent forcibly seized the microphone and took the same away. Subsequently the third respondent lodged a complaint, being Criminal Case No. 3253 of 1961, under Section 131 of the Bombay Police Act in the Court of Shri Lalani, Judicial Magistrate, First Class, 4th Court, Ahmedabad, the fourth respondent, alleging that ihe petitioner had committed a breach of the rules aforesaid and that, therefore, he was liable to be punished under that section. Thereafter, the petitioner filed the present petition. The petitioner, by this petition, prays for a declaration that Section 33, Sub-section (1), Clause (r), Sub-clause (iii) of the Bombay Police Act and the rules framed thereunder are ultra vires the Constitution of India and that an injunction be issued to all the respondents restraining them from enforcing the section and the rules. He also prays for the issue of a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ or order under Article 226 of the Constitution directing the second respondent not to interfere with his fundamental right to use a microphone at public meetings in the city of Ahmedabad and forbearing him from seizing the mike or taking any other action against the petitioner for use of the mike at public meetings. He also prays for a writ of prohibition or a writ in the nature of prohibition or direction or order under the same Article against the fourth respondent, calling upon him to drop the criminal proceedings aforesaid and for restraining him from entertaining future or further proceedings on similar grounds.
(3.) The impugned part of Section 33 of the Act is as follows: "33. (1): The Commissioner and the District Magistrate, in areas under their respective charges or any part thereof, may make, alter or rescind rules or orders not inconsistent with this Act for: XXX X (r) licensing, controlling or, in order to pre vent obstruction, inconvenience, annoyance, risk, danger or damage of the residents or passengers in the vicinity prohibiting: XX X X (iii) the using of a loudspeaker in or near any public place * * * *". This part of the section confers upon the officers mentioned therein powers to make rules or orders for the use of a loudspeaker in or near a public place. The powers conferred are three in number, viz. (i) the power of licensing, (ii) the power of controlling, and (iii) the power of prohibition. The authorities on whom the powers are conferred are (i) the Commissioner, and (ii) the District Magistrate. The powers are to be exercised by these officers in areas under their respective charges or any part thereof. All the three powers are to be so exercised by making rules and orders and in such, a way that the latter would not be inconsistent with the provisions of the Act. The part of the section itself does not mention the conditions on which and/or the limitations subject to which the powers of granting licence for and control of the use of a loudspeaker are to be exercised. However, the part does mention the limitations to which the power of prohibiting the user of laudspeaker is subject. Prohibition can be imposed to secure all or any of the objects mentioned in the clause. These objects are the prevention of obstruction, inconvenience, annoyance, risk, danger or damage to the residents or passengers in the vicinity. The powers can be exercised only in respect of loudspeakers which are to be used in or near any public place. They cannot be exercised in respect of their user at other places. The powers can be exercised either in respect of the whole of the area in which the officer concerned exercises his jurisdiction or in any part thereof.;