# [1952] 1 S.C.R. 135

- **Citation:** [1952] 1 S.C.R. 135
- **Court:** Supreme Court of India
- **Decided:** 1949-09-06
- **Case number:** Civil Appeal Police, Bombay No. 93 of 1951
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1952-1-s-c-r-135-222
- **Pages:** 18

## Headnote

S.C:R.
SUPREME COURT REPORTS
135
COMMISSIONER OF POLICE, BOMBAY
v •
. GORDHANDAS BHANJI
[SA1YID FAZL Au,
MEHER CHAND
MAHAJAN and
VIVIAN.BOSE JJ.]
City of Bombay Police Act (/ of 1902), s. 22 (1)-Rules under
tfie 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 Po/ice-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-Maintainabilit~P:aper 1'elief-:Publi<l
orders-Conswuct~onJ--iReference
to•
explanif.tions given subsequently-Propriety of.
'.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
re-consideration 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 filed 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, 1967, is hereby
cancelled."
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 be
would not have granted the permission.
(ii) There was no valid cancellation of the licence because
(a), the order of cancellation communicated to the respondent
was one made by the Government of Bombay and not by the
Comq:iissioner on his own authority ; he acted
in the
matter
only as a transmitting agent ; (b), under the rules framed under
1951
No11. 23.
136
SUPREME COURT REPORTS
[J:95.2]
:1951
Conimissio.ner of
Police, Bombay
section 22 (1) (f), (l) (g) and (n) of the City of Bombay Police Act
1902 the Government of Bon1bay had no power to ·cancel
a
licence once issued.
The only person vested with authority to
grant or refuse a licence for the erection of a building to be
v.
Gordhandas
Bhanji.
used for
purposes
of
public
amuse1nent 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 cineina could not be granted because he had already
granted
permission
and
there
\\"as
no
valid
order
of
cancellation.
(iv) The other
relief
asking for an injunction
directing
the Commissioner to withdra\V 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 compelling 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 <>f the
public at large it was coupled with a duty to exercise it \¥hen
the circumstances so demanded.
The Commissioner could consequently be ordered under s. 45 of the Specific Relief Act to
exercise his discretion and decide "vhether the licence should or
should

## Text

S.C:R.
SUPREME COURT REPORTS
135
COMMISSIONER OF POLICE, BOMBAY
v •
. GORDHANDAS BHANJI
[SA1YID FAZL Au,
MEHER CHAND
MAHAJAN and
VIVIAN.BOSE JJ.]
City of Bombay Police Act (/ of 1902), s. 22 (1)-Rules under
tfie 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 Po/ice-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-Maintainabilit~P:aper 1'elief-:Publi<l
orders-Conswuct~onJ--iReference
to•
explanif.tions given subsequently-Propriety of.
'.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
re-consideration 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 filed 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, 1967, is hereby
cancelled."
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 be
would not have granted the permission.
(ii) There was no valid cancellation of the licence because
(a), the order of cancellation communicated to the respondent
was one made by the Government of Bombay and not by the
Comq:iissioner on his own authority ; he acted
in the
matter
only as a transmitting agent ; (b), under the rules framed under
1951
No11. 23.
136
SUPREME COURT REPORTS
[J:95.2]
:1951
Conimissio.ner of
Police, Bombay
section 22 (1) (f), (l) (g) and (n) of the City of Bombay Police Act
1902 the Government of Bon1bay had no power to ·cancel
a
licence once issued.
The only person vested with authority to
grant or refuse a licence for the erection of a building to be
v.
Gordhandas
Bhanji.
used for
purposes
of
public
amuse1nent 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 cineina could not be granted because he had already
granted
permission
and
there
\\"as
no
valid
order
of
cancellation.
(iv) The other
relief
asking for an injunction
directing
the Commissioner to withdra\V 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 compelling 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 <>f the
public at large it was coupled with a duty to exercise it \¥hen
the circumstances so demanded.
The Commissioner could consequently be ordered under s. 45 of the Specific Relief Act to
exercise his discretion and decide "vhether the licence should or
should not be cancelled.
,_
(vi} The words .. any law" in s. 45 <lo not mean statutory
law alone but embrace all kinds of law whether referable to a
statutory prov1s1011
or
otherwise.
Therefore the
performance
of duties under the rules can be compelled under the provi-
.-L:...
sions of s. 45.
( vii)There was no other specific and adequate legal remedy
open to the respondent \Vithin the meaning of s. 45 for though
the
respondent
could
have
ignored
the
so-called
order
of
cancellatio~ 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 rctnedy in the circu1nstances of the present case.
(viii) The petition \Vas not inco1npetent under s. 46 of
the
Specific Relief Act .:lS 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 ni.ade, in
exercise
of a statutory
authority cannot be construed in the light 0£ explanations subsequently given .by the officer making the order of what he meant
or 0£ 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 actings and conduct of those to whom they are addressed·
they must be construed objectively with referei:ice to the language:
{
used in the Order itself.
Jw
,,
I
'
S.C.R .
SUPREME COURT REPORTS
137
. Julius v. Lord Bishop of Oxford (5 App. Cas. 214), Alcock,
Ashdown & Co. v. Chief Revenue Authority (50 I.A. 227) referred to.
TS6J
Commissioner fJf
CIVIL
APPELLATE
JURISDICTION :
Civil
Appeal
Police, Bombay
No. 93 of 1951. Appeal from the Judgment and Decree
v.
of the Bombay High Court
(Chagla C.
J.
and
Gordhandas
Bhagwati J.)
dated 6th September, 1949, in
Appeal
Bhan;;.
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 India ( 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
qu~tion 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
Magisitrate 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 tbt present."
On :he 1st of October, 1945, Andheri became a palt
of Grr2tcr Bombay and the jurisdiction to grant or
refuse 2 license was transferred to the Commissioner of
Police,
Bombay. The respondent accordingly put in a
second application on the 21st of November, 1945, and
Bose f.
1951
Commissioner of
Police, Bombay
v.
Gordhandas
Bhan;;.
Bose /.
I
,,
138
SUPREME COURT REPORTS
[1952)
addressed it to the Cornmissi11ner
of Police. After
some correspondence this was al ·O ·turned down on the
19th
of
March, 1946, "owing to public opposition."
Nothing daunted, the responden. applied again on the
!st of April, 1946, and asked br a "reopening" of his
case. One of the grounds given w :ts that
"The Government of
Born >ay
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 unnarnrally, the Commissioner
of Police appears to have comulted the Govern,nknt
of Bombay, for he wrote to the respondent on the. 25th
of April, 1946, saying that
· · ·
"the whole question of comidering and approving
sites for cinemas is under th" consideration of the
Government of Bombay,"
and he promised that
"when a decision is arrive:! at, . your appliCation
will be examined."
It seems that somewhere ab(lllt this . time a Cinema
..... _.
Advisory
Committee was consrituted by Government.
We have not been enlightenec about the scope and
extent of its powers hut it is < vident from its nomenclature that its functions were . purely advisory. Five
members of this Committee af pear to have inspected
the site on the 12th of May, t'47, and after prolonged
discussion they reached the cond.1sion 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 reject< d."
A note was drawn up to th:it effect and the matter
was ordered to be placed on the agenda of the next
meeting of the Committee "for 'inal decision."
This final decision has not !wen placed on record but
the Commissioner of Police tf \Is us in bis
affidavit
that within a. month the Committee advised that the
application should be granted.
Accordingly, the Commissioner accorded the necess; ry permission
by
his
SUPREME COURT 'REPORTS
139
· letter dated the 14/16th of July, 1947.
There is no
reference here to the recomti1endations of the Advisory
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 O:>mmissioner 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 wa5 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 th~ 16th of July,
1947, ·was therefore a &ood and valid sanction.
This 15anction 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 diretthim
"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 ltrtter ... dated the 16th
July, 1947, ishereby cancelled."
3'--3 S.C, India/71
1951
Commissiont:r of
Police, Bombay
v.
Gordh11ndas
Bhan;;.
Brne /.
\
1951
Commission" oj
Police, Bombay
v.
Gordhandas
Bhan;i.
Bose /.
140
SUPREME COURT REPORTS
[1952}
It will be necessary at this stage to determine
whether this was a cancellation by the Commissioner
on his own anthority 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 intimatign by him of an order passed and made by another
authority, namely the Government of Bombay.
'
An attempt was made by referring to tlie
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 actings and conduct of those to
whom 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.
t
l
/
S.C.R.
SUPREME COURT REPORT~
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
·&uspended 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 datJed 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 can-
• cellation 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 reg!Ulation" of places pf puWic amusement in
1951
Commissioner qf
Police, Bombay_
V•
Gerdhantlas
Bhan;;.
Bose /.
1951 /
Commissioner of
Police, Bombay
v.
Gordhandas
Bhanji.
Bose /.
142
SUPREME COURT REPORTS
[1952]
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
withdfaw or modify a license once issued. Ordinarily,
a man can do what he likes with his property subject
of course to specify laws regulating hist 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
111
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."
Tllese preliminaries include-
( a) the making of an application in writing to
the Commissioner of Police, and
•
-··
/
..
S.C;R.'
SUPREME COURT ·REPORTS
a preliminary
1951
(b) the giving of a certain notice as
to the application.
This notice has to be in the form
Schedule A · and has to :be maintained
Commissioner of
prescribed in
Police, Bombay
on a · certain
v.
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
r~ceipt 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 th<:. matters
which· the application shall contain and the documents
:which must accompany it including plans and specifi-
. cations 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,
corridor~, exists 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
Qne which has yet to be erected.
Part IV relates to the
"Use
of
cinematograph
Apparatti's
and . other
Qptical Lanterns."
The rules prescribed there are mainly for purposes
Qf 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 l1eaded "Licenses". Rule 237 prescribe 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
Gortihandas
Bhanji.
Bose f.
;
144
SUPREME COURT REPORTS_
[19521
1951
Commissioner of
Police, Bombay
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 238 prescribes that :-
...
Gordhandas
Bhsnji.
Bose /.
'
"No such premises shall be opened, or kept ope11
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
lice~."
Rule 248 invests the Commission 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 283 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 dear to us from a perusal of these rules that
the only person vested with authority to grant or
refilse
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.
Noother' 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
~
)
S.C.R.
SUPREME COURT REPORTS
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 of
Bombay.
Part II which deals with the
erection
of
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 for
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 premi~es.
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 bsen
. expended on the building an estoppel at least
would
arise.
No question of estoppel has been raised he_re, 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 250.
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 con-
~
fined here to section 45 of the Specific Relief Act.
"1951
Commissiqner of
Police, Bombay_
v.
Gortlilanrlas
Bhanji.
B1>se f.
•
1951
Commissionel' of
.Police, Bombay
v.
Gordha11das
Bhan;;.
Bose /.
146
SUPREME COURT REPORTS
[1952]
The jurisdiction conferred by that section is very
special in kind and is strictly limited in extent though
the ambit of the powers exercisable
within
those
limits is wide.
Among the limitations
imposed
are
the fol1owing : 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 forbearing is
clearly
incumbent 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 ~pecific law which requires
the Commissioner to grant a license on the fulfilment 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 shoukl 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 cancelling 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
•
I
·>.
S.C.R.
SUPREME COURT REPORTS
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
c~ncel
the license he granted. He merely forwarded to the
respondent an
ord~r 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 di~retion
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 an.d decide for himself
whether
to cancel ·the license or reject the objections. That
duty . he . can now be ordered tb. perform under section 45.
It was objected as to this that there 1s nG specific
law which compels him to exercise the discretion.
Rule 250 merely vests a distretion in him but docs
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(1), observations
which have our foll and respectful concurrence :-
"There may be something in . ·the nature of the
thing empowered to be done, something in t.he 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 ~hose 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.
1951
Commissioner .of
P'olic;e, Bombtty
v.
•
Gordhandas
Bhanji.
Bote /.
1951
Commitsioner of
Police, Bombay
v.
Gordhandas
Bhanji.
Bose f.
148
SUPREME COURT REPORTS
[1952]
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
compelled for another reason.
is limited
t.o
duties which
forborne
performance cannot be
Section 45, it was said,
must be performed or
"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 pl!blic officers or, on the
other, of laziness, incornpetence, 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 othe( 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
'
•
<
.•
~·
•· '
S.C.R.
SUPREME COURT REPORTS
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 prima f acie compels
o~
edience 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 Commi5..5iioner' s letter of the
19/20th September, 1947, indicated that
objections of
a serious nature which it was the Commissioner's duty
t() consider had been raised.
The respondent had
a
right to expect the Commissioner to make up his mind
and reach a decisipn, otherwise it left hif!l in a state of
uncertainty. If he commenced to build, the
Commis-
.sioner 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 ~e 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 dear 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 that would not be ;i proper and adequate remedy in certain cases. Each case must necessarily depend
on its own facts arid we have _no intention of laying
down any hard and fast rule. But we do no~ think
that that would be adeql.late 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
Proc<;dure 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
/
1951
Commissioner .of
Police, Bombay
v.
Gortlhantlas
Bhan;;
Bose f.
1951
Commissioner of
Police, Bombay
v.
Gordhandas
Bhanji
Bose J.
150
·SUPREME COURT REPORTS
[1952]
·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 theatre which is all the while
acquiring reputation and
goodwill, two undefinable
but important
considerations
in
cQmmercial
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 this 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
(Alcock, Ashdown
,,. Co. v. Chief Revenue
Authority, Bombay)(') where Lord Phillimore says
at
page 233 :-
"To argue that if the
L~gislature 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 appli-
..
cable, and there would be no
power in the Court to
"-
~
compel him to give relief to the subject,
i~ 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 ins,tructed
his solicitors to write to the Commissioner and enquire
(I) 50 I.A. 227 at 233.
•
• ,...
•·
•
S.C.R.
SUPREME COURT REPORTS
151
1951
why the perrnission granted
had
been
so
arbitrarily cancelled.
This was on the 18th November,
1947.
The reply dated 3/4th December,
1947,
was Commissioner of
Police, Bombay
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 :-
1
•
"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 tbe 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 :-
1"0ur client feels that he has not been treated
fairly aRd that justice has been denied to him:'
The only reply to this was, :-
"I am dire<;ted to inform you that .Government
d0es 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 11e clearly washed his. harids of
the matter by his ·letter of the, 3rd/4th December, 1947,
and
referred the petitioner to Government
under
who.se 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
th:
meaning of section 46.
In England the refusal need
not be in so many words. All that ·is necessary is
to
v.
Gord/iandas
Bhanji
Bose /.
·. . .
•
152
SUPREME COURT REPORTS
[1952]
1951
Commissioner of
Police, Bombay
show that the party complained of has distinctly determined not to do what is demanded (See 9 Halsbury's
Laws of England, Hai Isham edition, page 772). And
v.
Gordhandas
Bhanji
Bose /.
•
in the United States of America a demand is not required "where jt 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 die\ not make the order and
that even if he did, a direction of that sort would not
lie because of the discretion vested i11 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 elated the 14/16th of July,
1947, and, after weighing all the different aspects of
the
matter, and after bringing to bear his own
unfettered judgment on the subject, himself to issue a
definite and unambiguous order either cancelling or
refusing to cancel the said license in the exercise of the
absolute discretion vested m him by Rule 250 of the
Rules for Licensing and Controlling Theatres
and
Other
Places of
Public
Amusement
in
Bombay.
City, 1914.
As the appeal fails except for the slight modification inclicatecl above, the appellant
will
pay the
respondent's costs.
Decree modified.
Agent for the appellant: P. A. Mehta.
Agent for the respondent: Rajinder Narain.
.
,._
•
..