1951 (11) TMI 17 - SC - Indian Laws

Commissioner alone has power under 1914 Rules to grant, suspend or cancel public amusement licenses; Rule 250; Section 45

COMMISSIONER OF POLICE, BOMBAY Versus GORDHANDAS BHANJI.

SC held the Commissioner of Police alone had authority under the 1914 Rules to grant, suspend or cancel a license for a public amusement building; the ... Jurisdiction to grant or refuse a license - distinction of principles between the erection and use of buildings for purely private and residential purposes - Whether an order should issue under section 45 of the Specific Relief Act against the appellant, who is the Commissioner of Police, Bombay? Held that:- It is clear to us from a perusal of the 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. 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. 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 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. 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. Issues Involved:1. Authority to issue and cancel licenses under the Specific Relief Act and City of Bombay Police Act.2. Validity of the cancellation order.3. Jurisdiction and scope of Section 45 of the Specific Relief Act.4. Compliance with procedural requirements under Section 46 of the Specific Relief Act.Detailed Analysis:1. Authority to Issue and Cancel Licenses:The primary issue was whether the Commissioner of Police, Bombay, had the authority to issue and cancel a license for erecting a cinema house. The respondent applied for a No Objection Certificate in 1945, which was initially refused by the District Magistrate. Upon Andheri becoming part of Greater Bombay, the jurisdiction transferred to the Commissioner of Police, who also refused the application due to public opposition. However, after consulting the Cinema Advisory Committee, the Commissioner granted the license in July 1947. The court noted that the Commissioner was entitled to consider the Advisory Committee's advice and act upon it in good faith. The court emphasized that the Commissioner's decision to grant the license was valid and made in the bona fide exercise of his discretion.2. Validity of the Cancellation Order:The court scrutinized whether the cancellation of the license was a valid exercise of authority by the Commissioner or merely a transmission of the government's order. The court concluded that the cancellation order communicated by the Commissioner was not his own but an order from the Government of Bombay. The court held that public orders must be construed objectively and the language used in the order indicated that it was not an independent decision by the Commissioner. The court found that the Commissioner acted merely as a transmitting agent for the government's order, which was beyond his authority as the power to cancel the license was vested solely in the Commissioner under Rule 250.3. Jurisdiction and Scope of Section 45 of the Specific Relief Act:The court examined whether an order in the nature of a mandamus could be issued under Section 45 of the Specific Relief Act. The court noted that Section 45 allows for specific acts to be done or forborne if clearly incumbent upon the authority under any law for the time being in force, and if no other specific and adequate legal remedies are available. The court found that the Commissioner had not exercised his discretion as required by Rule 250 and was bound to do so. The discretion vested in the Commissioner was coupled with a duty to exercise it when circumstances demanded. The court held that the performance of this duty could be compelled under Section 45.4. Compliance with Procedural Requirements under Section 46 of the Specific Relief Act:The court addressed whether the petitioner had complied with the requirement of making a demand for justice and being denied, as stipulated by Section 46. The court found that there was a substantial demand for justice and a denial. The petitioner's solicitors had written to the Commissioner and the Home Minister seeking reasons for the cancellation and requesting an opportunity to present their case. The responses indicated a denial of justice. The court held that the demand and denial were sufficient to meet the requirements of Section 46.Conclusion:The court concluded that the Commissioner of Police did not exercise his discretion in canceling the license and merely transmitted the government's order. The court directed the Commissioner to independently consider the requests for cancellation and issue a definite and unambiguous order either canceling or refusing to cancel the license, exercising the discretion vested in him by Rule 250. The appeal was dismissed with a slight modification of the High Court's order, and the appellant was ordered to pay the respondent's costs.