A GIRIDHARILAL Vs. STATE

JUDGEMENT

(1.) The petitioner is a Government approved auctioneer for Madras City and Chingleput carrying on business for 12 years. In this proceeding, he challenges clause (5) in sub-rule (7) to rule 12 in the Tamil Nadu Pawn Brokers' Rules 1944, as amended by G.O. Ms. No. 1259 (Revenue) dated 29-5-1981 as unconstitutional.

(2.) To regulate and control the business of pawn brokers in the State of Tamil Nadu, the Tamil Nadu Pawn Brokers Act, 1943, came to be promulgated. By virtue of the rule making power provided under S.22 of the Act, Tamil Nadu Pawn Brokers Rules 1944, were made by the Governor of Tamil Nadu. According to rule 12, the auctioneer to whom the sale of a pledge by public auction is entrusted, shall be a person approved by the Personal Assistant (General) to the Collector of Madras, in the city of Madras and the Revenue Divisional Officer elsewhere. I had already pointed out that the petitioner is an approved auctioneer. The old clause (v) in sub-rule (7) of rule 12 runs as follows - "The auctioneer shall also send a copy of the printed catalogue by registered post to the pawnor at least a week before the date fixed for the sale". The impugned rule is as follows :-

(3.) Mr. Suresham, learned counsel for the petitioner submits that the impugned rule imposes unreasonable restrictions on the petitioner's right to carry on trade as an auctioneer and, therefore, is violative of Art.19(g) of the Constitution of India. According to the learned counsel, the impugned rule is silent as to who should bear the expenses in effecting affixture and also tom-tom. For example, in Andhra Pradesh, there are no village officers and the rule as such cannot be obeyed in such cases. Referring to the definition of pawn broker in S.2(6) of the Act, the learned counsel pointed out that in a case where the articles of petty nature are involved the expenditure to be incurred by tom-tom and by publication would be inproportionate to the amount to be recovered - indeed in some cases, the expenses would exceed the amount to be recovered. It might be that in most cases, the pawner lives in a rented portion in a house comprising of several tenants. In such cases, if either affixture or tom-tom were to be resorted to either by the auctioneer or any one at his instance, his life and limb would be at stake for various reasons. For instance, even the pawner would not like his indebtedness being proclaimed in such a fashion, or the other inmates in the building would not tolerate such affixture or tom-tom. According to the learned counsel for the petitioner, the rule does not envisage any safeguard while either the auctioneer or any one at his instance were to carry out either affixture or tom-tom. It is, here, the learned counsel for the petitioner referred to Art.21 of the Constitution of India. It is also pointed out by the said learned counsel that the affixture may not be approved by the owner of the building, because such affixture may disfigure the building.