TaxTMI 
TaxTMI 
1951 (11) TMI 17
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....re 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 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 Gov....
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....esentations 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." 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 p assed and made by another authority, namely the Government of Bombay. An attempt was made by referring to the Commissi....
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....celled 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 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....
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....ify 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 such premises shall each take out a license under these rules" Then follows....
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....tes 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....
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....erefore, 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 hi....
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....nded 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 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, ....
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.... "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 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 u....