Commissioner of Police, Bombay Vs.
Gordhandas Bhanji [1951] INSC 52 (23 November 1951)
BOSE, VIVIAN FAZAL ALI, SAIYID MAHAJAN, MEHR
CHAND
CITATION: 1952 AIR 16 1952 SCR 135
CITATOR INFO :
D 1954 SC 592 (16) F 1955 SC 661 (7) APL 1958
SC 419 (34) D 1965 SC1740 (18) R 1970 SC1896 (15) RF 1975 SC 550 (9) R 1978 SC
851 (8) D 1982 SC 149 (44) R 1982 SC 691 (11) D 1982 SC1407 (12)
ACT:
City of Bombay Police Act (1 of 1902), s.
22(1)--Rules under the Act, rr. 8, 238 to 257, 263 to 283--Specific Relief Act
(I of 1877), s. 45-Licence for construction of cinema--Duties of Commissioner
of Police--Permission granted by Commissioner--Cancellation of licence by
Government--Validity of cancellation--Discretion of Commissioner--Duty to
exercise discretion--Application for mandamus to order Commissioner to grant
permission--Maintainability--Proper relief--Public
orders--Construction--Reference to explanations given subsequently--Propriety
of.
HEADNOTE:
An application by the respondent for
permission to build a cinema on a site within the City of Bombay was rejected
by the Commissioner of Police, Bombay. The respondent applied for
reconsideration of his application and the Commissioner, acting on the advice
of the Cinema Advisory Committee, granted the application on the 16th July,
1947, though he indicated in an affidavit flied later that but for this advice
he would have refused the application again. Subsequently, under instructions
from Government the Commissioner sent the following communication to the
respondent: "I am directed by Government to inform you that the permission
to erect a cinema at the above site granted to you under the office letter
dated 16th July, 1947, is hereby canceled." The respondent applied to the
High Court of Bombay for an order under s. 45 of the Specific Relief Act
directing the Commissioner of Police, Bombay, to withdraw the cancellation and
to grant permission for the erection of the cinema, and the High Court directed
the Commissioner of Police "to withdraw the order of cancellation passed
by him." The Commissioner of Police appealed to the Supreme Court.
Held, (i) that there was nothing in the
letter dated 16th July, 1947, to indicate that the decision was not that of the
Commissioner himself given in the bona fide exercise of the discretion vested
in him. The sanction was not consequently invalid merely because the
Commissioner decided to accept the advice of the Cinema Advisory Committee even
though without that advice he would not have granted the permission.
(ii) There was no valid cancellation of the
license because (a), the order of cancellation communicated to the respondent
'was one made by the Government of Bombay and not by the Commissioner on his
own authority; he acted in the matter only as a transmitting agent; (b), under
the rules framed under 136 section 22 (1) (f), (1) (g) and (n) of the City of
Bombay Police Act 1902 the Government of Bombay had no power to cancel of
license once issued. The only person vested with authority to grant or refuse a
license for the erection of a building to be used for purposes of public
amusement is the Commissioner of Police.
(iii) The relief sought by the respondent of
an injunction to direct the Commissioner of Police to grant permission for the
erection of a cinema could not be granted because he had already granted
permission and there was no valid order of cancellation.
(iv) The other relief asking for an
injunction directing the commissioner to withdraw the cancellation also could
not be granted because Rule 250 vests the Commissioner with an absolute
discretion in the matter.
(v) Though there was no specific provision of
law compel ling the Commissioner to exercise the discretion vested in him under
Rule 250, inasmuch as the enabling power vested by Rule 250 was vested in the
Commissioner for the welfare of the public at large it was coupled with a duty
to exercise it when the circumstances so demanded. The Commissioner could
consequently be ordered under s. 45 of the Specific Relief Act to exercise his
discretion and decide whether the licence should or should not be cancelled.
(vi) The words "any law" in s. 45
do not mean statutory law alone but embrace all kinds of law whether referable
to a statutory provision or otherwise. Therefore the performance of duties
under the rules can be compelled under the provisions of s. 45.
(vii) There was no other specific and
adequate legal remedy open to the respondent within the meaning of s. 45 for
though the respondent could have ignored the so-called order of cancellation ,
he could only have done so. at his peril as it purported to emanate from the
State Government and was served by a public officer. The remedy of injunction
was not a proper and adequate remedy in the circumstances of the present case.
(viii) The petition was not incompetent under
s. 46 of the Specific Relief Act as there had been a demand of justice and a
denial thereof within the meaning of the section in the circumstances of the
case.
(ix) Public orders, publicly made, in
exercise of a statutory authority cannot be construed in the light of explanations
subsequently given by the officer making the order of what he meant or of what
was in his mind, or what he intended to do. As such orders are meant to have
public effect and are intended to affect the acting and conduct of those to
whom they are addressed' they must be construed objectively with reference to
the language used in the order itself.
137 Julius v. Lord Bishop of Oxford (5 App.
Cas, 214), Alcock, Ashdown & Co v. Chief Revenue Authority (50 I .A.
227) referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 93 of 1951. Appeal from the Judgment and Decree of the Bombay High Court
(Chagla C.J. and Bhagwati J.) dated 6th September, 1949, in Appeal No. 16 of
1949, arising out of the Judgment dated' 2nd February, 1949, of a Single Judge
of the same High Court (Tendolkar J .) in Miscellaneous Application No. 223 of
1948. The facts of the case and arguments of counsel are stated fully in the
judgment.
C.K. Daphtary, Solicitor-General for Indict
(G. N. Joshi, with him)for the appellant.
N.C. Chatterjee (R. M. Hajarnavis, with him)
for the respondent.
1951. November 23. The Judgment of the Court
was delivered by BOSE J.--The question here is whether an order should issue
under section 45 of the Specific Relief Act against the appellant, who is the
Commissioner of Police, Bombay.
The respondent, Gordhandas Bhanji, wanted to
build a cinema house on a plot of land at Andheri in the year 1945.
At that date Andheri did not form a part of
Bombay and under the. rules then in force it was necessary to obtain permission
from the District Magistrate of that area in the form of a No Objection
Certificate. Accordingly, the respondent made the necessary application on the
12th of September, 1945. Permission. was refused on the 30th of September,
1945, on the ground that the public of the locality objected and also because
there was already one cinema theatre at Andheri and so it was not necessary to
have another "for the present." On the 1st of October, 1945, Andheri
became a part of Greater Bombay and the jurisdiction to grant or refuse a
license was transferred to the Commissioner of Police, Bombay. The respondent
accordingly put in a second application on the 21st of November, 1945, and 138
addressed it to the Commissioner of Police. After some correspondence this was
also turned down on the 19th of March, 1946, "owing to public
opposition." Nothing daunted, the respondent applied again on the 1st of
April, 1946, and asked for a "reopening" of his case. One of the
grounds given was that "The Government of Bombay are giving very careful
attention and affording all reasonable facilities to develop the Greater Bombay
into a model one. A modern cinema, therefore, of the type I propose to build is
indispensable." In view of that, not unnaturally, the Commissioner of
Police appears to have consulted the Government of Bombay, for he wrote to the
respondent on the 25th of April, 1946, saying that "the whole question of
considering and approving sites for cinemas is under the consideration of the
Government of Bombay," and he promised that "when a decision is
arrived at, your application will be examined." It seems that somewhere
about this time a Cinema Advisory Committee was constituted by Government. We
have not been enlightened about the scope and extent of its powers but it is
evident from its nomenclature that its functions were purely advisory. Five
members of this Committee appear to have inspected the site on the 12th of May,
1947, and after prolonged discussion they reached the conclusion that "in
view of the location of four schools near by the site, this site is unsuitable
for the purpose required and therefore it should be rejected." A note was
drawn up to that effect and the matter was ordered to be placed on the agenda
of the next meeting of the Committee "for final decision." This final
decision has not been placed on record but the Commissioner of Police tells us
in his affidavit that within a month the Committee advised that the application
should be granted. Accordingly, the Commissioner accorded the necessary
permission by his 139 letter dated the 14/16th of July, 1947. There is no reference
here to the recommendations of the Advisory co Committee and. though they may
have weighed, and rightly, with the Commissioner there is nothing on the face
of the letter to indicate that the decision was not that of the Commissioner
himself given in bona fide exercise of the discretion vested in him.
We refer to this because the Commissioner has
stated in his affidavit that I was fully satisfied that the petitioner's
application should be refused, but that it was only at the instance of the
Cinema Advisory Committee that I granted the said permission on the 14th of
July, 1947." That, however, would not affect the validity of his order.
There is no suggestion that his will was overborne or that there was dishonesty
or fraud in what he did. In the absence of that, he was entitled to take into
consideration the advice thus tendered to him by a public body set up for this
express purpose, and he was entitled in the bona fide exercise of his
discretion to accept that advice and act upon it even though he would have
acted differently if this important factor had not been present to his mind
when he reached a decision. The sanction accorded on the 16th of July, 1947,
was therefore a good and valid sanction.
This sanction occasioned representations to
Government presumably by the "public" who were opposing the scheme.
Anyway, the Commissioner wrote to the
respondent on the 19/20th September, 1947, and direct him "not to proceed
with the construction of the cinema pending Government orders." Shortly
after, on the 27/30th September, 1947, the Commissioner sent the respondent the
following communication:
"I am directed by Government to inform
you that the permission to erect a cinema at the above site granted to you
under this office letter...dated the 16th July, 1947, is hereby
cancelled." 140 It will be necessary at this stage to determine whether
this was a cancellation by the Commissioner of on his own authority acting in
the exercise of some power which was either vested in him or of which he bona
fide believed himself to be possessed, or whether he merely acted as a post
office in forwarding orders issued by some other authority. We have no
hesitation in reaching the conclusion that this is not an order of cancellation
by the Commissioner but merely intimation by him of an order passed and made by
another authority, namely the Government of Bombay.
An attempt was made by referring to the
Commissioner's affidavit to show that this was really an order of cancellation
made by him and that the order was his order and not that of Government. We are
clear that public orders, publicly made, in exercise of a statutory authority
cannot be construed in the light of explanations subsequently given by the
officer making the order of what he meant, or of what was in his mind, or what
he intended to do. Public orders made by public authorities are meant to have
public effect and are intended to affect the acting and conduct of those to hum
they are addressed and must be construed objectively with reference to the
language used in the order itself.
Turning now to the language used, we are clear
that by no stretch of imagination can this be construed to be an order which in
effect says :-"I, so and so, by virtue of the authority vested in me, do
hereby order and direct this and that." If the Commissioner of Police had
the power to cancel the license already granted and was the proper authority to
make the order, it was incumbent on him to say so in express and direct terms.
Public authorities cannot play fast and loose
with the powers vested in them, and persons to whose detriment orders are made
are entitled to know with exactness and precision what they are expected to do
or forbear from doing and exactly what authority is making the order.
141 But if there is ambiguity or doubt in the
language used here a glance at the surrounding circumstances will dispel it.
What was the position at the time ? Permission was first refused and then
granted, then suspended and the respondent was told to await, not the
Commissioner's orders, but those of Government. Then comes the letter in
question which conveys those orders. So also there is the conduct of the
Commissioner not long after. The respondent's solicitors placed the same
construction on the order of the 30th September as we do and asked the
Commissioner how Government could interfere with a permission granted by him.
They said on the 18th November 1947 :"Our client has been advised that the
authority to grant permission is in you acting in consultation with the Advisory
Board. It is difficult to understand how the Government can interfere with the
permission granted by you." The Commissioner's reply dated 3/4th December,
1947, was:-"I write to inform you that permission granted to your client
was cancelled under the orders of the Government who may be approached..."
We are clear that this roundabout language would not have been used if the
order of cancellation had been that of the Commissioner. We do not mean to
suggest that it would have been improper for him to take into consideration the
views and wishes of Government provided he did not surrender his own judgment
and provided he made the order, but we hold on the material before us that the
order of cancellation came from Government and that the Commissioner acted only
as a transmitting agent.
It is next necessary to determine whether the
Government of Bombay had the power to cancel a license once issued.
That depends on a consideration of the Rules.
They are framed under section 22 (1) (f) (i) (g) and (h) of the City of Bombay
Police Act, 1902. They regulate the "licensing, controlling, keeping and
regulation" of places. of public amusement in 19 142 the City of. Bombay.
Rule 8 applies to any person desirous of "erecting" a cinema,
building.
There is, in our opinion, a distinction of
principles between the erection and use of buildings for purely private and
residential purposes and those intended to be used as places of public
amusement. Considerations arise regarding the latter which would not be
applicable to the former, among them the right to withdraw or modify a license
once issued. Ordinarily, a man can do what he likes with his property subject
of course to specific laws regulating his use of it, therefore in the case of a
private residence he would in a general way have a right to build if he
complies with all the rules and regulations and restrictions which may be
imposed by law, and if permission is withheld when all the conditions are
fulfilled he would normally have a right to demand that the necessary
permission be given. But that sort of consideration does not apply to a place
intended to be used for public performances. There, questions affecting the
safety, convenience, morality and welfare of the public must be given
overriding precedence and it is. usual in these cases, on grounds of public
concern, to vest some public authority with a discretion to grant or refuse
such licences and to modify or cancel ones already granted. It is necessary to
bear this distinction in mind when construing the present rules. 'Therefore,
when Rule 8 speaks of "erecting" such premises, it must be borne in
mind that the rule is not a mere building rule affecting the erection of a
building in the abstract but applies to a building intended to be used for a
particular purpose and the license applied for is not merely for permission to
build but also to use structure, when erected, for a particular purpose
affecting the public at large and the residents of the locality in particular.
Rule 8 falls under Part II which is headed :"Preliminaries
to obtaining license for premises." These preliminaries include(a) the
making of an application in writing to the Commissioner of Police, and 143
(b)the giving of a certain notice as a preliminary to the application.
This notice has to be in the form prescribed
in Schedule A and has to be maintained on a certain board "until the
application has been dealt with by the Commissioner" and the rule
prescribes that" no application shall be considered before the expiration
of one fortnight after the receipt by the Commissioner of a copy of the notice
etc." Schedule A shows 'that the object of the notice is to enable the
Commissioner to receive objections to the proposed erection.
The rest of the rules in Part II specify the
matters which the application shall contain and the documents which must accompany
it including plans and specifications of the proposed building.
Part III prescribes various structural
details with which the building must conform. They include fire resisting
material for the roof, stage staircases and dressing rooms of a certain type,
seating arrangements, Corridors, exits and so forth. This part of the rules
would apply to a building already in existence but not yet licensed for public
performance as well as to one which has yet to be erected.
Part IV relates to the "Use of
cinematograph Apparatus and other optical Lanterns." The rules prescribed
there are mainly for purposes of health and safety.
Parts V and VI do not concern us. They
prescribe special rules for Circuses and for exhibitions of Boxing and
Wrestling.
Then comes Part VII which is material for
present purposes. It is headed "Licenses". Rule 237 prescribes that
"The person being the owner, tenant or occupier of such premises and the
person who proposes to give any public performance, entertainment or exhibition
on 144 such premises shall each take out a license under these rules" Then
follows a sub-heading "Licenses for Premises" and under that come
Rules 238 to 257. Rule 23S prescribes that :"No such premises shall be
opened, or kept open for use as a place of public amusement unless the person
being the owner, tenant or occupier thereof shall have obtained from the
Commissioner the necessary license." Rule 248 invests the Commissioner
with "absolute discretion in refusing any license etc... if such place
appears to him likely to cause obstruction, inconvenience, annoyance, risk,
danger or damage to residents or passers-by in the vicinity of such
premises." Then follows Rule 250 which is crucial here. It says :
"The commissioner shall have power in
his absolute discretion at any time to cancel or suspend any license granted
under these Rules..." After Rule 257 comes a second sub-heading entitled
"Performance License" and Rules 258 to 28:3 set out the requirements
relating to the holding of performances as distinct from the requirements
relating to the building or premises in or on which they are to be held. The
rest of the rules do not concern us.
It is clear to us from a perusal of these
rules that the only person vested with authority to grant or refuse a license
for the erection of a building to be used for purposes of public amusement is
the Commissioner of Police. It is also clear that under Rule 250 he has been
vested with the absolute discretion at any time to cancel or suspend any
license which has been granted under the rules. But the power to do so is
vested in him and not in the State Government and can only be exercised by him
at his discretion. No other person or authority can do it.
It was argued that Rule 250 did not apply to
licenses to erect buildings but only referred to other matters 145 such as
their maintenance and the kind of performances to be given in them. We are
unable to agree.
The preamble to the rules states that the
Rules are for the "licensing, controlling, keeping and regulation" of
places of public amusement in the City Bombay. Part II which deals with the
erection cinema houses nowhere authorises the issue of a license but it does
indicate that a license is necessary. For instance, the heading states that the
rules which follow in Part II are only the "preliminaries to obtaining
license for premises" and Rule 21 sets out that "Before a license is
granted...for such premises" certain certificates must be produced. All of
which indicates that a license is necessary. But the only provision the actual
issue of the license is in Part VII, and Rules 237 and 238 in that part require
the owner, tenant or occupier of premises intended to be used for a cinema
house for public amusement to take out a license as well as for the person who
proposes to give a public performance on such premises. In our opinion, Rule
250 does authorise the cancellation of a license already issued but the only
person who can effect the cancellation is the Commissioner of Police.
It was contended that this would work great
hardship in some cases and that if money had already been expended on the
building an estoppel at least would arise. No question of estoppel has been
raised here, so that is not a question we need consider nor need we answer the
converse question whether an estoppel would hold good in the face of a law
enacted for the public good on grounds of public policy;
also whether there can be an estoppel when a
person builds knowing the risk he runs of cancellation at any time under Rule
2S0.
The next question is whether an order in the
nature of a mandamus can issue under section 45 of the Specific Relief Act. It
is necessary to emphasise that the present case does not fall either under
article 32 (2) or article 226(1) of the Constitution. We are confined here to
section 45 of the Specific Relief Act.
146 The jurisdiction, conferred by. that
section is very special in kind and is strictly limited in extent though the am
but of the powers exercisable within those limited is wide.
Among the limitations imposed are the
following: First, the order can only direct some specific act to be done or
some specific ,act to be forborne. It is not possible therefore to give a mere
declaratory relief as under section 42. Next, because of the proviso, the order
can only be made if the doing or the for bearing is clearly recumbent upon the
authority concerned under any law for the time being in force. And thirdly,
there must be no other specific and adequate legal remedies available to the applicant.
Now applying these rules to the present case,
the applicant must show what specific act he wants to. be done or to be
forborne. That can only be gathered from the petition.
The reliefs specifically sought there are (1)
an order directing the Commissioner to withdraw the cancellation and/or (2)
directing him to grant permission for the erection of a cinema.
Taking the second. first, it is evident from
the rules that there is no specific law which requires the Commissioner to
grant a license on the fulfillment by the petitioner of certain conditions. He
is vested with a discretion to grant or to refuse a license and all that the
law requires is that he should exercise that discretion in good faith.
But that he has done. In the exercise of that
discretion he granted a license and that license still holds good because, on
the view we have taken, there has been no valid order of cancellation.
Accordingly, this relief cannot be granted.
Turning next to the first relief, that cannot
be granted in the form in which it is sought because the rules vest the
Commissioner with an absolute discretion to cancel at any time a license once
granted. There is no specific law which compels him to forbear from canceling a
license once granted in fact that would be an impossibility; still less is
there any law which compels him to withdraw a cancellation already effected:
that would fetter the absolute discretion 147 vested in him by Rule 250.
Therefore, this relief cannot be granted in the way it is asked for. But we are
of opinion that we are free to grant the respondent a modification of that
relief in a different form. It is to be observed that the petitioner did ask
that he be granted "such further and other relief as the nature and
circumstances of the case may require." We have held that the Commissioner
did not in fact exercise his discretion in this case and did not cancel the
license he granted. He merely forwarded to the respondent an order of
cancellation which another authority had purported to pass. It is evident from
these facts that the Commissioner had before him objections which called for
the exercise of the discretion regarding cancellation specifically vested in
him by Rule 250. He was therefore bound to exercise it and bring to bear on the
matter his own independent and unfettered judgment and decide for himself
whether to cancel the license or reject the objections.
That duty he can now be ordered to perform
under section 45.
It was objected as to this that there is no
specific law which compels him to exercise the discretion. Rule 250 merely
vests a discretion in him but does not require him to exercise it. That is
easily met by the observations of Earl Cairns L.C. in the House of Lords in
Julius v. Lord Bishop of Oxford(i), observations which have our full and
respectful concurrence :-"There may be something in the nature of the
thing empowered to be done, something in the object for which it is to be done,
something in the conditions under which it is to be done, something in the
title of the person or persons for whose benefit the power is to be exercised,
which may couple the power with a duty, and make it the duty of the person in
whom the power is reposed, to exercise that power when called upon to do
so." The discretion vested in the Commissioner of Police under Rule 250
has been conferred upon him for public reasons involving the convenience,
safety, (1) 5 App. Cas. 214 at 222, 223.
148 morality and welfare. of the public at
large. An enabling power of this kind conferred for public reasons and for the
public benefit is, in our opinion, coupled with a duty to exercise it when the
circumstances so demand. It is a duty which cannot be shirked or shelved nor
can it be evaded; performance of it can be compelled under section 45.
It was then objected that performance cannot
be compelled for another reason. Section 45, it was said, is limited to duties
which must be performed or forborne "under any law for the time being in
force," and it was argued that this means statute law. There is authority
for this point of view, but we see no reason for limiting the clear words of
the section or for reading into it matter which is not there. The provision is
a beneficent one to compel the performance of public duties by public officers.
It is intended to open up a swift and summary remedy to the subject against, on
the one hand, certain kinds of abuse or excesses on the part of public officers
or, on the other, of laziness, incompetence, inertia or inaction on their part.
We can see no reason why statutory duties should be placed on any different
plane from other duties enjoined by any other kind of law, especially as some.
statutory duties are slight or trivial when compared to certain other kinds of
duties which are not referable to a statutory provision. In our opinion, the
words "any law" are wide enough to embrace all kinds of law and we so
hold.
The only other point we need consider is
whether "the applicant has no other specific and adequate legal
remedy." It was contended on behalf of the appellant that the respondent
could have ignored the so called order of cancellation if he considered it was
of no effect; alternatively, he had the specific legal remedy of suing for an
injunction which could have accorded him adequate relief.
In our opinion. the first is neither a
specific nor an adequate legal remedy. Here is an order purporting to 149
emanate from the State Government itself served on the respondent by a
responsible public officer. Whether, the order is his order or an order of the
State Government it is obviously one which primarily compels obedience as a
matter of prudence and precaution. It may in the end prove to be ineffective,
as has happened in this case, but it would be wrong to expect a person on whom
it is served to ignore it at his peril however much he may be legally entitled
to do so. Also, the very fact that this order was served on him, especially
when it followed on the Commissioner's letter of the 19/20th September, 1947,
indicated that objections of a serious nature which it was the Commissioner's
duty to consider had been raised. The respondent had a right to expect the
Commissioner to make up his mind and reach a decision, otherwise it left him in
a state of uncertainty.
If he commenced to build, the Commissioner
would have a right to take action under Rule 250 and tell him to stop, and at
best that would involve the respondent in a long and expensive litigation which
he might or might not win. We are clear that he had a right to be told
definitely by the proper legal authority exactly what he might or might not do,
so that he could adjust his affairs. We are clear that the dangerous course of
ignoring an official order at one's peril is not the kind of adequate and
specific legal remedy contemplated by section 45.
Next, as regards the relief of injunction. We
do not say that would not be a proper and adequate remedy in certain cases.
Each case must necessarily depend on its own facts and we have no intention of
laying down any hard and fast rule. But we do not think that would be adequate
to meet the exigencies of the present case. In the first place, a suit, if
lodged, would require notice under section 80 of the Civil Procedure Code as it
would be a suit against a public officer in his official capacity, and that
would at once import delay; so would the long drawn out procedure of civil
litigation with its concomitant appeals. In a commercial undertaking of the
kind we have here, inordinate delay might well spell ruin to the project. Large
sums of money have necessarily to be tied up 20 150 so long as the matter
remains in abeyance, the prices of land and materials are constantly rising and
there is in the vicinity a rival theater which is all the while acquiring
reputation and goodwill, two undefinable but important considerations in
commercial undertakings. It is therefore desirable that questions of the kind
we have here should be decided as soon as may be It may be that any one of
those considerations taken separately might not be enough to fulfil this
requirement of section 45, but considered cumulatively we are of opinion that
the applicant has no other adequate remedy in tiffs case. In any event, there
are many cases of a similar nature in which section 45 has been applied without
objection despite the fact that an injunction could have been sought. We need
only cite a decision of the Judicial Committee of the Privy Council (A1cock,
Ashdown & Co. v. Chief Revenue Authority, Bombay) (1) where Lord Phillimore
says at page 233 :"To argue that if the Legislature says that a public
officer, even a revenue officer, shall do a thing, and he without cause or
justification refuses to do that thing, yet the Specific Relief Act would not
be applicable, and there would be no power in the Court to compel him to give
relief to the subject, is to state a proposition to which their Lordships must
refuse assent." Their Lordships then issued an order under section 45.
Lastly, it was urged that the petition is
incompetent because the provisions of section 46 of the Specific Relief Act
have not been complied with, namely, the petitioner has not shown that he made
a demand for justice and that it was denied.
The demand and denial which section 46
requires are matters of substance and not of form. In our opinion, there was a
substantial demand here and it is clear that there was a denial. Soon after the
order of cancellation was intimated to the petitioner he instructed his
solicitors to write to the Commissioner and enquire (1) 50 I.A. 227 at 233.
151 why the permission granted had been so
arbitrarily cancelled. This was on the 18th November, 1947. The reply dated
3/4th December, 1947, was that the cancellation was under the orders of
Government and that they should be approached in the matter. Government was approached.
The petitioner's solicitors wrote to the Home Minister on the 9th December,
1947, and said :-"Our client has not been informed of any reasons which
had moved the Government to direct the cancellation of the permission. Our
client was really entitled to be heard in the matter...Our client desires to
present his case before you and he shall feel obliged if you give him an
interview..." The Secretary to the Home Department replied on the 12th of
January, 1948, that the Commissioner was directed to cancel the permission in
view of numerous protests which Government received. This was replied to on the
16th of February, 1948, and the petitioner's solicitors said :-"Our client
feels that he has not been treated fairly and that justice has been denied to
him." The only reply to this was :-"I am directed to inform you that
Government does not wish to add anything to the reply already given to
you." The correspondence read as a whole contains a clear demand for
justice and a denial. It is true the actual demand was not made to the
Commissioner nor was the denial by him but he clearly washed his hands of the
matter by his letter of the 3rd/4th December, 1947, and referred the petitioner
to Government under whose orders he said he was acting. The demand made to
Government and the denial by them were therefore in substance a demand made to
the Commissioner and a denial by him.
In any event, an evasion or shelving of a
demand for justice is sufficient to operate as a denial within the meaning of
section 46. In England the refusal need not be in so many words All that is
necessary is to 152 show that the party complained of has distinctly determined
not to do what. is demanded (See 9 Halsbuy's Laws of England, Hailsham edition,
page 772). And in the United States of America a demand is not required
"where it is manifest it would be but an idle ceremony" (See Ferris
on Extraordinary Legal Remedies, page 281). The law in India is not different
except that there must be a demand and a denial in substance though neither
need be made in so many words The requirements of section 46 were therefore
fulfilled.
The result is that in substance" the
appeal fails though it will be necessary to effect a modification of the High
Court's order. The High Court directed the Commissioner of police to
"Withdraw the order of cancellation passed by him." We have held that
he did not make the order and that even if he did, a direction of that sort
would not lie because of the discretion vested in him by Rule 250. The following
will accordingly be substituted for what the High Court has ordered:
The Commissioner of Police be directed to
consider the requests made to him for cancellation of the license sanctioned by
his letter dated the 14/16th of July, 1947, and, after weighing all the
different aspects of the matter, and after bringing to bear his own unlettered
judgment on the subject, himself to issue a definite and unambiguous order
either canceling or refusing to cancel the said license in the exercise of the
absolute discretion vested in him by Rule 250 of the Rules for Licensing and
Controlling Theaters and Other Places of Public Amusement in Bombay City, 1914.
As the appeal fails except for the slight
modification indicated above, the appellant will pay the respondent's costs.
Decree modified.
Agent for the appellant: P.A. Mehta.
Agent for the respondent: Rajinder Narain.
Back
