TaxTMI 
TaxTMI 
2003 (8) TMI 542
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.... tourists, tourist parties and many dignitaries visiting the places. They charge for rendering such services. In this background it appears that it was thought necessary to regulate this profession and a need also seems to have been felt to issue identity cards to those persons who may act as authorized guides and charge fee for the service rendered. So as the guides may be presentable, well-up in their knowledge and their conduct towards the tourists may be cultured and ethical, certain conditions have been laid down including one relating to holding a test which any of such person is required to pass before being entitled to be issued an identity card as a guide. Detailed instructions in that connection have been issued in 1979 by the Ministry of Tourism and Civil Aviation, Department of Tourism, Government of India. A few of the conditions are that they should charge their remuneration only at the rates fixed by the Department of Tourism; they would not solicit tips or other material gains from the tourists; they would maintain good conduct and behaviour; they would carry out the assignments as may be made by the Department of Tourism for conducting any tour or site seeing etc. ....
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....rist guide is required to perform the function which is basically physical or manual. The improvement of general health standard is no ground for not fixing the upper age limit. In most of the employments (Government as well as private), the persons are retired at the age of 58. It is true that there is no such thing as retirement in a profession. In that sense a private tourist guide, who does not bother about the Government's approval, is free to carry on his profession as long as he wants. There would be no age bar. However, the considerations are different when it comes to the approval of guides by Government. A guide who has crossed the age of sixty years may not develop any physical handicap. But if the younger guides are available they would be more energetic and would ultimately be of greater assistance to the tourist. The validity of the age limit prescribed by clause 17 cannot be tested merely on the basis of the physical fitness of a particular guide. Young, energetic guide would certainly promote better tourism business in comparison. I, therefore, hold that clause 17 is neither arbitrary nor unreasonable." The Court then observed in the case of Virendra Kumar Ch....
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....r monetary consideration except under the authority of, or under and in accordance with the conditions of a licence by, an archaeological officer; or (e) beg for alms; or (f) violate any practice, usage or custom application 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 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. 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 visitors around for monetary consideration can be regulated by laying down conditions of a licence granted for the purpose by an archaeological officer. An Archaeological Offi....
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....rists are properly informed and not misguided or fleeced by unscrupulous guides or such element 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 licence granted by an archeological officer. The purpose of rule 8(d) is clear that the place may remain protected, be maintained and be kept and well and no person may charge a visitor for taking him around the place except one who is authorized as approved guide. His charges would be, as fixed. The whole reading of all three provisions viz. Sections 18, 38 and Rule 8(d) lead 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 in reference to the conditions laid, that minimum standard of basic knowledge has been provided for and the conduct and behaviour of guides has been chann....
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....he interest of the visitors and tourists seeking access to the protected monuments. But otherwise the State or the Government of India does not figure into the picture in any role whatsoever. There is no relationship of master and servant between them nor there exists any contractual relationship. No benefit is conferred nor any emolument etc. is payable to the guides by the Government. No kind of protection nor any other benefit is provided to them by the Government. This is as much a matter of self-employment and private profession, as many others. In absence of any such relationship as that of master and servant or contractual in nature, ordinarily there would be no good reason for the State to completely prohibit at its choice, to carry on a private profession or self-employment, on attaining a certain age. The High Court expressed its agreement with an earlier decision of Allahabad High Court in the case of Virender Kumar Chadha, (supra) which in turn expressed its agreement with reasons given in the case of J.K. Agarwal, (supra), a passage from which has been quoted earlier. In the case of J.K. Agarwal, (supra), a distinction has been sought to be made between the profession ....
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....ra) with which agreement has been expressed in the case of Virender Kumar Chadha, (supra) followed in the impugned judgment does not appeal to reason. Regulatory measures may be for better efficiency, conduct and behaviour in the public interest, but ordinarily it cannot prohibit a person totally debarring him from carrying on his profession at an age chosen by the Government unless there may be special reasons for it. The right which is guaranteed to all citizens under Article 19(l)(g) of the Constitution of India is to practice any profession or to carry on any calling, trade or business. Clause (6) of the article 19(1) however, places a restriction that nothing would prevent the State from making any law imposing reasonable restrictions in exercise of the right in the interest of general public Sub-clauses (i) and (ii) further provide that professional and technical qualification as may be thought necessary for practicing the profession can always be prescribed and exclusion of carrying on of any calling, trade or business etc. is also envisaged which is also carried on by a State or by a Corporation owned and controlled by the State. Subject to above noted restrictions the v....
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.... AIR (1957) SC 414 State of Assam and Ors. and etc. etc. v. Sristikar Dowerah and etc. etc., stability of the country, equitable distribution of essential commodities at fair prices (AIR (1960) SC 475, Union of India and Ors. v. M/s Bhanamal Gulzarimal Ltd. and Ors.), for maintenance of purity in public life, prevention of fraud and similar considerations. On consideration of a catena of decisions on the point, this Court, in a case reported on [1998] 8 SCC p. 227, M.R.F. Ltd. v. Inspector, Kerala Government and Ors., has laid certain tests on the basis of which reasonableness of the restriction imposed on exercise of right guaranteed under Article 19(l)(g) can be tested. Speaking for the Court, Saghir Ahmad, J. (as he then was), laid such considerations as follows : "(1) While considering the reasonableness of the restrictions the court has to keep in mind the Directive Principles of State Policy. (2) Restrictions must not be arbitrary or of an excessive nature so as to go beyond the requirement of the interest of the general public. (3) In order to judge the reasonableness of the restrictions, no abstract or general pattern or a fixed princi....