# KISHAN CHAND ARORA v. COMMISSIONER OP POLICE, CALCUTT A

- **Citation:** [1961] 3 S.C.R. 135
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Bench:** B. P. Sinha, J. L. Kapur, P. B. Gajendragadkar, K. Subba Rao, K. N. WANCHoo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kishan-chand-arora-v-commissioner-op-police-calcutt-a-1945
- **Pages:** 26

## Headnote

Eating House-Power to grant license-Discretion vested in
Police Commissioner -
Constitutionality -
Calcutta Police Act,
r866 (IV of r866), s. 39-Constitution of India, Arts. r9(r)(g),
r9(6).
By s. 39 of the Calcutta Police Act, 1866, "The Commiss_ioner of Police, may, at his discretion from time t~ time, grant
licenses to the keepers of such houses or places of public resort
and entertainment as aforesaid for which no licence as is specified
in the Bengal Excise Act, 1909, is required upon such conditions,
(1) (1934) L.R. 61 I.A. 398.
December 9.
Kishan Chand
Aro1a
v.
Com111issioner oj
Police, Calcutta
136
SUPREME COURT REPORTS
[1961]
to be inserted in every such license, as he, with the sanction of
the said State Government from time to time shall order, for
securing the good behaviour of the keepers of the said houses or
places of public resort or entertainment, and the prevention of
drunkenness and disorder among the persons frequenting or using
the same; and the said licenses may be granted by the said Commissioner, for any time not exceedipg one year".
The petitioner, whose application for a license in respect of
·an eating house was refused by the Commissioner of Police, Calcutta, under the section, challenged its constitutional validity on
the ground that it conferred arbitrary and unguided powers on
the Commissioner to grant or refuse a license without hearing
the applicant and was, therefore, an unreasonable restriction on
his fundamental right to carry on his trade guaranteed by Art.
rg(r)(g) of the Constitution.
Held, (per Kapur, Gajendragadkar and Wanchoo, JJ.), that
in order to decide whether a provision in a pre-Constitution
statute, like the one in question, satisfies the test of constitutionality laid down by Art. rg(r)(g) read with Art. r9(6) of the Constitution, the impugned section has to be read as a whole in a
fair and reasonable manner and it should not be declared void
simply because the considerations relevant to those Articles are
not immediately apparent from its language. It is not correct
to say that the discretion conferred on the Commissioner by the
first part of the section is absolute and that the question of imposing the two conditions mentioned by the second part can arise
only after the grant of the license. The two parts, read together,
can lead only to the conclusion that the discretion vested in the
Commissioner is guided by the two conditions mentioned in the
section, namely, the securing of good behaviour and the prevention of drunkenness and disorder and a third by necessary implication, that the applicant must have actual and effective
control and possession of the place where he keeps the eating
house.
Section 39 of the Calcutta Police Act, 1866, therefore, confers no arbitrary or uncanalised discretion on the Commissioner,
unguided by any criteria, and does not constitute an unreasonable restriction on the fundamental right to carry on trade under
Art. rg(r)(g) of the Constitution.
Rustom ]amshed Irani v. Harley Kennedy, (1901) I.L.R. 26
Born. 386, inapplicable.
Although tjlere can be no <loubt that procedural provi•ions
of a statute also enter into the verdict as to its reasonableness,
it cannot be laid down as a general proposition that if a licensing
statute omits to provide for a hearing or for the giving of reasons
for refusal, such ornission must necessarily constitute an unreason·able restriction on a fundamental right.
The Commissioner
in passing an order under the section acts administratively and
although he must act reasonably. there is no duty cast on him
I
i I
11 ,
/ .•·
3 S.C.R~ SUPREME COURT·REPORTS
137
'\
'
. '.' .-.·.
,-- ,
to act judicially. Regard being had to the setting in which the
•960
impugned section appears in the Act and the circumstances of
this case, it could not be said thats. 39 of the Act was such a KidH CA.Rd
restriction.
·
Aro1•
State of• Madtas v. V. G. Row, [1952] S.C.R. 597, Nagendta
. Y'.
Nath B01a v. The Commissioner of Hills Division. and Appe

## Text

_Characters 0–39,682 of 58,984. This is a partial read: ask again with offset=39682 for what follows._

3 s.c.R. SUPREME COURT REPORTS
135
Article 136 of the Constitution confers ·a wide disz96o
cretionary power on this Court to entertain appeals·
.
'd d ,.
b
h
Sanwat Singh
in suitable cases not oth,erw1se prov1 e ior y t e
.,. Othe"
Constitution. It is implicit in the reserve power that
v.
it ca.nnot be exhaustively defined, but decided cases state of Rajasthan
do not permit interference unless "by disregard to the
forms of legal process or some violation of the prinSubba Rao J.
ciples of natural justice or otherwise, substantial and
grave injustice has been done". Though Art. 136 is
couched in widest terms, the practice of this Court is
not to interfere on questions of fact except iu exceptional cases when the finding is such that it shocks
the conscience of the court. In the present case, the
High Court has not contravened any of the principles
laid down in Shea Swarup's case(') and has also
given reasons which led it to hold that the acquittal
was not jilstified. In the circumstances, no case has
?een made out for our not accepting the said findmgs.
In the result, the appeal fails and is dismissed.
Appeal dismissed,.
KISHAN CHAND ARORA
v.
COMMISSIONER OP POLICE, CALCUTT A
(B. P. SINHA, c. J., J. L. KAPUR, P. B. GAJENDRAGADKAR, K. SUBBA RAO and K. N. WANCHoo, JJ.)
Eating House-Power to grant license-Discretion vested in
Police Commissioner -
Constitutionality -
Calcutta Police Act,
r866 (IV of r866), s. 39-Constitution of India, Arts. r9(r)(g),
r9(6).
By s. 39 of the Calcutta Police Act, 1866, "The Commiss_ioner of Police, may, at his discretion from time t~ time, grant
licenses to the keepers of such houses or places of public resort
and entertainment as aforesaid for which no licence as is specified
in the Bengal Excise Act, 1909, is required upon such conditions,
(1) (1934) L.R. 61 I.A. 398.
December 9.
Kishan Chand
Aro1a
v.
Com111issioner oj
Police, Calcutta
136
SUPREME COURT REPORTS
[1961]
to be inserted in every such license, as he, with the sanction of
the said State Government from time to time shall order, for
securing the good behaviour of the keepers of the said houses or
places of public resort or entertainment, and the prevention of
drunkenness and disorder among the persons frequenting or using
the same; and the said licenses may be granted by the said Commissioner, for any time not exceedipg one year".
The petitioner, whose application for a license in respect of
·an eating house was refused by the Commissioner of Police, Calcutta, under the section, challenged its constitutional validity on
the ground that it conferred arbitrary and unguided powers on
the Commissioner to grant or refuse a license without hearing
the applicant and was, therefore, an unreasonable restriction on
his fundamental right to carry on his trade guaranteed by Art.
rg(r)(g) of the Constitution.
Held, (per Kapur, Gajendragadkar and Wanchoo, JJ.), that
in order to decide whether a provision in a pre-Constitution
statute, like the one in question, satisfies the test of constitutionality laid down by Art. rg(r)(g) read with Art. r9(6) of the Constitution, the impugned section has to be read as a whole in a
fair and reasonable manner and it should not be declared void
simply because the considerations relevant to those Articles are
not immediately apparent from its language. It is not correct
to say that the discretion conferred on the Commissioner by the
first part of the section is absolute and that the question of imposing the two conditions mentioned by the second part can arise
only after the grant of the license. The two parts, read together,
can lead only to the conclusion that the discretion vested in the
Commissioner is guided by the two conditions mentioned in the
section, namely, the securing of good behaviour and the prevention of drunkenness and disorder and a third by necessary implication, that the applicant must have actual and effective
control and possession of the place where he keeps the eating
house.
Section 39 of the Calcutta Police Act, 1866, therefore, confers no arbitrary or uncanalised discretion on the Commissioner,
unguided by any criteria, and does not constitute an unreasonable restriction on the fundamental right to carry on trade under
Art. rg(r)(g) of the Constitution.
Rustom ]amshed Irani v. Harley Kennedy, (1901) I.L.R. 26
Born. 386, inapplicable.
Although tjlere can be no <loubt that procedural provi•ions
of a statute also enter into the verdict as to its reasonableness,
it cannot be laid down as a general proposition that if a licensing
statute omits to provide for a hearing or for the giving of reasons
for refusal, such ornission must necessarily constitute an unreason·able restriction on a fundamental right.
The Commissioner
in passing an order under the section acts administratively and
although he must act reasonably. there is no duty cast on him
I
i I
11 ,
/ .•·
3 S.C.R~ SUPREME COURT·REPORTS
137
'\
'
. '.' .-.·.
,-- ,
to act judicially. Regard being had to the setting in which the
•960
impugned section appears in the Act and the circumstances of
this case, it could not be said thats. 39 of the Act was such a KidH CA.Rd
restriction.
·
Aro1•
State of• Madtas v. V. G. Row, [1952] S.C.R. 597, Nagendta
. Y'.
Nath B01a v. The Commissioner of Hills Division. and Appeals, C""'.'"""oner of
Assam, [1958] S.C.R. 1240. Nakkuda Ali v. M. F. De S. Jayarat1111, Polie1: Calcu1t4
1951 A.C. 66 and Exptess Nt11Jspapers (P.) Ltd. v. "The Union of
India, (1959] S.C.R. 12, relied on.
If an applicant thinks that he has fulfilled the three conditions and the Commissioner has unreasonably rejected his
application, he has his remedy nnder Art. 226 of the Constitution. ·
.
.
.
Per Subba Rao; J.-It is well settled that restrictions on
fundamental rights must not be arbitrary or excessive or beyond
what is required, in the· interest 'Of the general public. Such
restrictions have to be tested both from the substantive and the
procedural aspects. An nncontrolled or uncanalised power constitutes an unreasonable restriction. Even thongh the ·statute
may clearly express the legislative policy that cannot be enough
unless it provides a suitable machinery for implementation of ·
that policy in accordance with the principles of natural justice.
Restriction~ are justiciable and in deciding whether a restriction
is reasonable or not, the Court cannot attach much importance
to the fact that ·the impugned statute vests discretion in the
State Government or a high officer. · Nor can the distinction ·
between an administrative authority and a. judicial one have
· much relevance except that the Court may be more inclined to
uphold the discretion if vested in an impartial judicial authority
rather than in an administrative one.
State of Mail1as v. V. G. Row, [1952] S.C.R. 597, Thakur
Raghubit Singh v. Cou1t of Watds, Ajmer, [1953] S.C.R. 1049 and
M/s. Dwatka Ptasad Laxmi Narain v. The State of Uttar Pradesh,
[1954] S.C.R. 803, relied on.
Babula! Chandta v. Chief Justice and Judges, High Courl of
Patna, Al.R. 1954 S.C. 524, Harishankar Bagla v. The State of
Madhya Pradesh, [1955] l S.C.R. 380, Union of India v. Eliana
Mal Gulzarimal Ltd.,· (1960]2 S.C.R. 627 and Mineral Development Lt.l., State of Bihar, (1960] 2 S.C.R. 609, considered ..
Thus viewed, the plain words of the impugned section cannot
be said to Jay down any policy reasonably capable of controlling
the discretion vested in the Commissioner.
The word 'may' coupled with the words 'at his discretion'
in the first part of the section clearly emphasises the intention
of the Legislature to confer absolute power on the Commissioner.
The second part deals with the nature of the conditions to be
inserted in the license .. • .But the scope of the discrotion to issue
. 18
- \
. SUPREME COURT REPORTS
[1961]
'". 1960
. \
the license and the power to impose conditions in a license are
·
two different matters.
KisTr.an CTr.iJnd
Arora;·
Even if the two conditions mentioned. in the second part
. v.
could.be read into the first, the discretion conferred by the secCommissioner of tion would still. b<: arbitrary sin<:e the section neither re.quires
Police
C•l<~tt• that the Comm1ss1oner should give reasonable opportumty to
'
the applicant to prove that he satisfies both the test> prescribed
by it nor that he should give reasons for refusing the license and
no appeal.is provided for.
Consequently, from the substantive as much as the procedural aspect, s. 39 of the Act infringes the fundamental right of
. the petitioner guaranteed by Art. 19(1)(g) of the Co.nstitution.
ORIGINAL JURISDICTION: Petition No. 22 of 1960.
Petition under Art. 32 of the Constitution of
India for enforcement of Fundamental Rights.
· . H.J. Umrigar and B. P. !tfah~shwari, for the petitioner.
·
-
A. C. J,Iitra, B. Das and P. K. Bose, for the respondents Nos. 1and2.
· ·
P. K. Mukherjee, for respondent No. 3.
1960, December 9. The Judgment of Kapur,
Gajendragadkar and \Vanchoo, JJ., was delivered by
Wanchoo, J., and that of Sinha, C.J., and. Subba
Rao, J., was delivered by Subba Rao, J.
·
W•nchoo J.
\V ANCHOO, J.-This petition under Art. 32 of the
Constitution challenges the ·constitutionality of s. 39
of the Calcutta Police Act, No. IV of 1866, (hereinafter called the Act). The facts necessary for our
purpose are these. On August 11, 1954, the petitioner
entered into an agreement with one Haripada Bhowmick, who is respondent No. 3 with respect to an
eating house named 'Kalpatoru Cafeteria', situate in
No. 2 Chowranghee Road, Calcutta. The petitioner
was• appointed a contractor by this agreement and
was given the exclusive. use and occupation of the
said eating house upon certain terms and conditions.
A licence has to be taken out with respect to an
· eating house under s. 39 of the Act. It appears
that originally the licence was in the name of .
Bhowmick, and one of the conditions of the licence
was that the eating house should not be sublet
3 S.C.R. SUPREME COURT REPORTS
139
without permission of the Commissioner of Police
i96o
(hereiuafter referred to as the Commissioner). On the
date of the agreement, Bhowmick held a. licence for
Kish;:.~••rul
the eating house, which was to expire on March 31,
v.
1955. It is said that under the agreement the licence Commissioft., of
was to remain in the name of Bhowmick while the Police. cai.u11a
petitioner was to carry on the business as a. contractor. The petitioner carried on the business from after
Wancloo J.
the date of the agreement and no application for a.
fresh licence was made l?Y him before March 31, 1955,
when the licence in the name of Bhowmick was to
expire. .It was only on August 8, 1955, that an
application for licence was ma.de by the petitioner on
behalf and in the name o0f Bhowmick, though the
business was continued to be run by him a.II the time
after March 31, 1955. It appears that the application
made in the name of Bhowmick was rejected on
December 27, 1956; but in the meantime Bhowmiok
was prosecuted on September 10, 1955, for running
the eating houee without a licence and was fined on
December 12, 1955. Thereafter a. notice was issued
to Bbowmick on September 7, 1956, to show ca.use
why his application for licence should not be refused
inasmuch as be had not applied in time a.nd violated
the condition of the licence by sub-letting the ea.ting
house to the petitioner. Thereafter the petitioner
applied on September 21, 1956, for the issue of a
licence in his own name. It may be mentioned that in
the meantime there had been disputes between Bhowmick and the petitioner and a. suit had been filed by
Bhowmick against the petitioner in October 1956 in
that connection. It may also be mentioned that
though the petitioner applied for the first time on
September 21, 1956, for licence he bad already been
prosecuted in October, 1955, for keeping a.n ea.ting
house without a licence and convicted in November
1955. The application ma.de by the petitioner on
September 21, 1956, was eventually rejected on March
30, 1958, though in the meantime the petitioner was
all along c01~tinuing .the bus~ness of the ea.ting house
without havmg obta.med a. licence. After the rejection
of his application the petitioner applied to the High
140
SUPREME COURT REPORTS
[1961]
1960
Court under Art. 226 of the Constitution challenging
the constitutionality of s. 39 and also challenging the
Kishan Chand
f
C
·
h' 1
Arora
order o the
ommissioner reJecting
is icenc6 on
v.
various grounds. This application was dismissed on
commissioner of August 7, 1958. Thereupon the petitioner went up in
Police, Calcutta appeal to a Division Bench of the High Court which
was disposed of on March 4, 1959. The Division
Wanchoo f.
Bench held s. 39 to be constitutional. It further held
that as extraneous matters had been taken into account in rejecting the application of the petitioner for
a licence the rejection was not in accordance with law.
However, as the period of one year for which a licence is valid under s. 39 had expired in September
1957, and the judgment was being delivered in March
1959, the appeal was dismissed on the ground that
that application could not be considered in 1959.
Thereupon the petitioner made another application to
the Commissioner on March 30, 1959, for the period
from April I, 1959 to March 31, 1960. During all this
time the petitioner was carrying on his business as a
keeper of the eating house without a licence. This
application was found defective and another application was made on May 14, 1959. In the meantime,
the petitioner again applied to the High Court on or
about May 8, 1959, under Art. 226 of the Constitution
in order to compel the Commissioner to issue him a
licence or in the alternative to compel him not to
prosecute him for keeping an eating house without a
licence and for such other orders as the High Court
might deem fit to pass. It may be mentioned that day
to day prosecution of the petitioner had begun from
February 1956 under s. 40 of the Act for continuing
to keep an eating house without a licence. This writ
application filed in the High Court was withdrawn by
the petitioner on May 13, 1959, as his application to
the Commissioner of March 30, was defective. On
May 30, 1959, the Commissioner rejected the application of the petitioner for a licence on the ground that
his antecedents and his present conduct showed that
he would not keep good behaviour and further that he
would not be able to prevent drunkenness or disorder
among the persons frequenting or using the eating
3 S.C.R. SUPREME COURT REPORTS
141
house. The petitioner's complaint is that he was not
1960
heard before the order rejecting his application was
Ki<han Chand
passed. Then on June 15, 1959, the petitioner again
Aro.a
applied under Art. 226 of the Constitution to the
v.
High Court against the rejection of his application on Commissioner of
May 30. On February 11, 1960, the High Court Police, Calcutta
allowed the petitioner to withdraw the application
Wan-;;;;o J.
with liberty to move snch application as he may be
advised before this Court, in case such liberty was
necessary. Thereafter tho petitioner moved this Court
by his present application on February 15, 1960.
His main contention before us is that s. 39 of the
Act confers naked and uncanalised powers on the
Commissioner to grant or refuse a licence and that no
criteria have been laid down anywhere in the Act to
guide the discretion of the Commissioner. Further,
no opportunity is provided to an applicant for a
licence to be heard either orally or in writing before
passing orders on an application for licence; in consequence, the Commissioner has been given completely
arbitrary powers either to grant or to refuse a licence
and this amounts to an unreasonable restriction on
the fundamental right of the petitioner to carry on
the trade of eating house keeper. Besides this attack
on the constitutionality of s. 39 the petitioner also
contends that the order is mala fide and should be
struck down on this ground. There are some other
grounds in the petition but they have not been pressed before us and it will not be necessary to consider
them.
The first question therefore that falls for consideration is whether s. 39 of the Act is a reasonable restriction within the meaning of Art. 19(6) on the fundamental right to practise any profession or to carry on
any occupation, trade or business contained in Art. 19
( 1 )(g). Sec. 39 is in these terms:-
"The Commissioner of Police, may, at his discretion, from time to time, grant licences to the keepers
of such houses or places of public resort and entertainment as aforesaid for which no licence as is
specified in the Bengal Excise Act, 1909, is required
upon such conditions, to be inserted in every such
Kishan Chand
Arora
v.
142
SUPREME COURT REPORTS
[1961]
licence, as he, with the sanction of the said State
Government from time to time shall order, for
securing the good behaviour of the keepers of the
CommissioneY of
Police, Calcutta
said houses or places of public resort or entertainment, and the prevention of drunkenness and disorder among the persons frequenting or using the
Wtinchoo ].
same; and the said licences may be granted by the
said Commissioner, for any time not exceeding one
year."
Learned counsel for the petitioner contends that the
language of s. 39 shows that an absolute discretion,
untrammelled by any considerations, is conferred on
the Commissioner by this section and there is nothing
either in the section or anywhere in the Act to guide
the discretion of the Commissioner in the matter of
gra.nting such licences. Therefore, according to learned counsel, the power conferred on the Commissioner
is arbitrary and unguided and such power is necessarily to be struck down on the ground that it cannot
be a reasonable restriction on the fundamental right
to carry on trade. There is no doubt that if the section empowers the Commissioner to grant or refuse a
licence without any criteria to guide him, it would be
an unreasonable restriction on the right to carry on
trade. We have therefore to see whether there is any
guidance either in the section or in the Act to regulate
the exercise of discretion of the Commissioner in the
matter of granting such licences. In this connection
it must be remembered that the Act was passed in
1866 when there were no fundamental rights and we
cannot expect that meticulousness of language which
should be found in statutes passed after January 26,
1950. It may also be mentioned that the Act replaced
two earlier Acts, namely, Act XIII of 1856 and
XL VIII of 1860. The Act of 1860 also contained provisions for licences for eating houses in ss. 11 and 12
thereof, though the language of those sections was
somewhat different. Sec. 11 laid down that in the
towns of Calcutta, Madras and Bombay no eating
house shall be kept without licence and provided for a
penalty for the same. Sec. 12 then laid down that the
Commissioner shall from time to time grant licences to
3 S.C.R. S'UPREME COURT REPORTS
143
keepers of such houses upon conditions for securing the
good behaviour of the keepers of the said houses and
l(ishan Chanoi
for the prevention of drunkenness and disorder among
Arora
the persons frequenting or using the same. The Ian-
. v.
guage of s. 39, however, is different inasmuch as it Commissioner 0!
proyides that the Commissioner may at his discretion Police, Calcutl•
from time to time grant licences. The Act of 1860
Wanohoo J.
was interpreted by the Bombay High Court in Rustom
J. Irani v. H. Kennedy (1) as giving no discretion to
the Commissioner to refuse a licence if the person
applying for the licence was willing to fulfil the conditions imposed thereunder. In the case of Calcutta,
however, s. 39 made a change in the language contained in the earlier Act giving discretion to the Commissioner in the matter of grant of licences.
The
question therefore is whether the word "discretion"
introduced by s. 39 means an absolute and unguided
discretion and would therefore now become an unreasonable restriction on the fundamental fight of a
citizen to carry on the trade of keeping an ea ting
house. There is no doubt, as we have already indicated, that the section does not say as many of the
provisions of laws passed after January 26, 1950, do
that the Commissioner would grant licence on certain
specified considerations. The contention on behalf of
the petitioner is that the first part of s. 39 confers an
absolute discretion on the Commissioner to grant or to
refuse a licence just as he pleases and that the second
part of the section merely provides for certain conditions to be imposed in case the Commissioner pleases
to grant a licence. We are however of opinion that
when we a.re judging a la.w passed in 1866 to decide.
whether it satisfies the test of constitutionality based
on Art. 19(l)(g) and Art. 19(6), we should take the
section as a whole and see whether on a fair reading
of the section it can be said that there is no guidance
for the Commissioner in the matter of granting or
refusing licences and his power is arbitrary. If such
guidance can be found on a fair reading of the section,
there would be no reason for striking it down simply
because it has not been worded in a manner which
(1) (1go1) I.L.R. a6 Bom. 396.
144
SUPREME COURT REPORTS
(1961]
1960
would show immediately that considerations arising
Kishan Chand from the provisions of Art. 19(l)(g) and Art. 19(6) were
Arora
in mind-naturally those considerations could not
v.
be in the mind of the legislature in 1866. We have
Commissioner of therefore to see whether an Act passed before the
Police, Calcutta Constitution came into force can be reasonably and
fairly read as containing guidance in the matter of
Wanchoo ].
licensing, as in this case. If it can be fairly and reasonably read to centain guidance it should not be
struck down. If, on the other hand, on a fair and reasonable construction of the section as a whole, we
come to the conclusion that there is no guidance in it
and the discretion vested in the Commissioner is absolute and arbitrary it will have be struck down.
What then does the section provide? It certainly
gives powers to the Commissioner to grant licences at
his discretion. Those words, however, by themselves
do not necessarily mean that the Commissioner has
the power'to a.ct arbitrarily ahd grant licences where
he pleases and refuse where he does not please to do
so. The section provides further that the licence has
to be granted upon certain conditi.ons and those conditions have to satisfy two objects, namely, (i) securing of the good behaviour of the keepers of the said
houses or places of public resort and entertainment
and (ii) the prevention of drunkenness and disorder
among the persons frequenting or using the same. Of
course, it is implicit in the section that a licence will
only be granted to a person who is the keeper of an
eating house. We cannot read the section as laying
down thij.t the discretion is absolute and that the im-
· {
posing of conditions for the aforesaid two objects only
II
arises after that absolute discretion has been exercised
in favour of the grant of licences. We see no unfair.
ness or unreasonableness in reading the section to
mean that the Commissioner shall satisfy himself (i)
that the person applying for a licence is the keeper of
an eating house, meaning thereby that he has a place
where he can carry on the business or trade and that
he actually and effectively has control and poasession
of that place, (ii) that the keeper is a person of good
behaviour so that the eating house may not become
3 S.C.R. SUPREME COURT REPORTS
145
a resort of criminals and persons of ill-repute, and (iii)
'96°
that the keeper is in a position to prevent drunkend
d
Kishan Chand
ness and isor er among those who come to the eatAror&
ing house. This section appears in the Police Act,
v.
the purpose of which is to maintain law and order and Commissioner of
that is why we find that the two objects to be secured Police, Calcutta
when granting licences are the good behaviour of the
keeper himself and the prevention of drunkenness and
Wanchoo J.
disorder among those who frequent the eating house.
It seems therefore to us that s. 39 clearly provides
that the Commissioner will use his discretion in deciding whether the person applying for a licence is in
actual and effective control and possession of the
place where the ea.ting· house is to be kept and is
thus the keeper thereof. He will also satisfy himself
that the keeper is a person of good behaviour and further that he is able to prevent drunkenness and disorder in the eating house. If he is satisfied on these
three matters, it seems to us that the section contemplates that the discretion will be exercised in favour of
the grant of a licence. We cannot accept that even
though the Commissioner may be satisfied that the
person applying for a licence has actual and effective
control of the place where he is going to keep the
ea.ting house, is a person of good behaviour and can
pre,·ent drunkenness and disorder among the clientele,
he will still go on to refuse the licence. The discretion
that is given to him is to satisfy himself on these
three points and if he is satisfied about them he has
to grant the licence. On the other hand if he is not
satisfied on any one or more of these points he will
exercise the discretion by refusing the licence. As for
the conditions which will be inserted in the licence,
they a.re only for the purpose of carrying on the two
objects specified in the section. They will naturally
be more detailed in order to carry out the two objects
aforesaid. But these two objects in our opinion along
with the obvious implication in the section that the
person applying must have actual and effective con·
trol of the place where he is going to keep the ea.ting
house a.re the criteria which will govern the exercise
19
146
SUPREME COURT REPORTS
[1961]
1960
of discretion by the Commissioner in the matter of
Kishan Chand granting or refusing a licence. We cannot agree with
Arooa
the learned counsel for the petitioner that the two
v.
parts of s. 39 should be read separately, as if one has
Com.missioner •! no effect on the other. Reading them together, it is
Police, Calcutta in our opinion fair and reasonable to come to the con-
--
clusion that the discretion of the Commissioner in this
Wanchoo ].
matter is guided by the two objects mentioned in the
section and by the necessary implication contained in
it that the person applying must be in actual and
effective control and possession of the place where he
is going to keep the eating house.
The argument
therefore that s. 39 confers an arbitrary and uncanalised power without any criteria for guiding the discretion of the licensing authority must fail and the
section cannot be held to be an unreasonable restriction on the right to carry on trade on this ground.
Then it is urged that even if there is guidance in
the section it provides for no hearing either oral or
written of the person applying for a licence. Further
it provides for no grounds to be given for refusing a
licence. Therefore, though there may be some guiding
principle in the matter of granting licences, the
absence of a provision for hearing and for giving
reasons for refusal would also make the provision
unconstitutional as an unreasonable restriction on a
fundamental right. Reference in this connection was
made to State of Madras v. V. G. Row (1) where it waB
observed that-
"ln considering the reasonableness of laws imposing restrictions on fundamental right, both the substantive and procedural aspects of the impugned
law should be examined from the point of view of
reasonableness and the test of reasonableness,
wherever prescribed, should be applied to each
individual statute impugned and no abstract stande.rd or general pattern of reasonableness can be laid
down as applicable to all cases."
There is no doubt that procedural provisions of a
statute also enter into the verdict as to its reasonableness; but at the same time there can be no abstract or
(1) [1952] S.C.R. 597·
3 S.C.R. SUPREME COURT REPORTS
147
general principles which would govern the matter and
r96o
each statute has to be examined in its own setting. It Kishan Chand .
is undoubtedly correct that no provision has been
ho.a
made for giving a hearing to a person applying for a
v.
licence and the Commissioner has not to give reasons Commissioner of
when refusing the licence; but it cannot be laid down Police. Calcutt•
as a general propositio~ _tha~ where in the. case of
Wan~o f.
licensing statute no prov1s10n 1s made for hearmg and
·
there is no provision for giving reasons for refusal the
statute must be struck down as necessarily an
unreasonable restriction on a fundamental right. No
case has been cited before us which lays down such a
general proposition. We have therefore to examine
the section in its setting to decide whether the absence
of a provision for hearing and for requiring the Commissioner to give reasons for refusal would make this
section unconstitutional. The section appears in the
Police Act, which deals generally with matters of law
and order and the two objects specified in the section
are also for the same purpose. The discretion is vested
in a high police officer who, one would expect, would
use it reasonably. There is no provision for appeal
and there is no lis as between the person applying for
a licence and the Commissioner; the exercise of the
discretion depends upon the subjective satisfaction of
the Commissioner as to whether the person applying
for a licence satisfies the three conditions mentioned
above. It is true that the order when made one way
or the other affects the fundamental right of carrying
on trade, but in the circumstances it cannot but be an
administrative order (see, Nagendra Nath Bora v. The
Commissioner of Hills Division and Appeals, Assam (1)),
and though the Commissioner is expected to act
reasonably there is no duty cast on him to act judicially. In Nakkuda Ali v. M. F. De S. Jayaratne('), the
Privy Council pointed out that it was quite possible to
act reasonably without necessarily acting judicially and
that it was a long step in the argument to say that
because a man is expected to act reasonably he cannot
do so without a course of conduct analogous to the
judicial process. The compulsion of hearing before
(1) [1958] s.c.R. ""o, u53.
(2) [1951] A.C. 66.
148
SUPREME COURT REPORTS
[1961]
r960
passing the order implied in the maxim 'audi alteram
partem' applies only to judicial or quasi-J"udicial proKishan Chand
Arora
ceedings: (see, Express Newspapers (P.) Ltd. v. The
v.
Union of India (1)). Therefore, the fact that no hearCommission" of ing is required to be given by the Commissioner before
Police, Calcutta he decides to grant or refuse a licence would not make
the provisions as to licensing in the circumstances of
Wanchoo f.
this case unreasonable restrictions on the fundamental
right of carrying on a trade. For the same reaso1:s it
cannot be said that because the reasons for refusal are
not communicated to the person applying that would
make the licensing provision unconstitutional. The
person applying knows that under the law there are
three conditions (already set out above) which the
Commissioner has to consider in granting or refusing
the licence. If he thinks that he fulfills the three conditions and the Commissioner has acted unreasonably
in rejecting his application he is not without a remedy;
he can apply to the High Court under Art. 226 and
compel the Commissioner to disclose the reasons for
refusal before the Court and if those reasons are extraneous or are not germane to the three matters arising
under s. 39, the High Court will compel the Commissioner to act within the scope of s. 39. We are therefore of opinion that in the circumstances of this case
and in the setting in which s. 39 appears the mere
absence of a provision for a hearing or a provision for
communicating the reasons for refusal to the person
applying, does not make s. 39 unconstitutional as an
unreasonable restriction on a fundamental right. The
attack therefore on the constitutionality of s. 39 must
fail.
Then we turn to the question of mala jides. It is
not the case of the petitioner that the Commissioner
bas any personal· animus against him or that ho is
favouring Bbowmick. What he says in ground 41 of
his petition in this connection is that the reasons given
by the Commissioner in his order dated May 30, 1959,
for refusing the licence are not correct and that the
Commissioner is annoyed with him because he went
to the High Court by means of a writ application.
(I) (1959] S.C.R. 12, 106.
3 S.C.R. SUPREME COURT REPORTS
149
These in our opinion are no grounds for holding that
the order of the Commissioner passed in this case on
May 30, 1959, is mala fide.
The petition therefore fails and is hereby dismissed
with costs.
SuBBA RAO, J.-We regret our inability to agree
with Wanchoo, J. Our learned brother in his judgment has stated the facts fully and it is not necessary
to restate them here.
The petitioner applied to the Commissioner of
Police, Calcutta, for a licence to enable him to carry on
the business of an eating house known as "Kalpatoru
Cafeteria". The Commissioner by his order dated
May 30, 1959, rejected the application made by the
petitioner for a licence on two grounds, namely, that
he was ·not satisfied that from "the antecedents and
present conduct" of the petitioner it would be reasonable to think that the petitioner would keep good
behaviour and would be able to prevent drunkenness
or disorder among the persons frequenting the eating
house. The application was rejected under s. 39 of
the Calcutta Police Act, No. IV of 1866 (hereinafter
called the Act). The short question raised is whether
s. 39 of the Act is constitutionally valid. Section 39
of the Act reads:
"The Commissioner of Police, may, at his discretion, from time.to time, grant licenses to the keepers
of such houses or places of public resort and entertainment as aforesaid for which no license as is
specified in the Bengal Excise ,Act, 1909, is required
upon such conditions, to be inserted in every such
license, as he, with the sanction of the said State
Government from time to time shall order, for securing the good behaviour of the keepers of the said
houses or places of public resort or entertainment,
and the prevention of drunkenness and disorder
among the persons frequenting or using the same;
and the said licenses may be granted by the said
Commissioner, for any time not exceeding one
year."
Learned counsel for the petitioner contends that
Kishan Chand
Ato'a
v.
Commissioner of
Police, Calcutta
Subba Rao ].
150
SUPREME COUl{T REPORTS
[1961]
z96o
the petitioner has under Art. 19(1 )(g) of the ConstituKishan Chand tion a fundamental right to carry on the business of
A•ora
an eating house and that the provisions of s. 39 of
v.
the Act impose unreasonable restrictions on the exerCommissioner of cise of his right and, therefore, the said section is
Police, Calcutta void.
Before scrutinising the provisions of that section it
Subba Rao J. would be convenient at the outset to notice the relevant aspects of the law vis-a-vis the concept of
reasonable restrictions on a fundamental right. The
concept of reasonableness has been clearly defined by
Patanjali Sastri, C. J., in State af Madras v. V. G.
Row(') thus:
"It is important in this context to bear in mind
that the test of reasonableness, wherever prescribed, should be applied to each individual statute
impugned, and no abstract standard, or general
pattern, of reasonableness can be laid down as
applicable to all cases.
The nature of the right
alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and
urgency of the evil sought to be remedied thereby,
the disproportion of the imposition, the prevailing
conditions at the time, should all enter into the
judicial verdict".
There the constitutional validity of s. 15(2)(b) of the
Indian Criminal Law Amendment Act, 1908, was impugned on the ground that it fell outside the scope of
authorized restrictions in Art. 19(4) of the Constitution.
The issue of a notification by the State Government
declaring an association unlawful was made to depend
upon its subjective satisfaction of certain objective
factors.
The Act also provided for an enquiry before
an Advisory Board and the subsequent review of the
order by the Government on the basis of the said
enquiry. It was pressed upon this Court to hold that
the said restriction passed the test laid down in
Art. 19(4) of the Constitution. In rejecting the contention, Patanjali Sastri, C. J., observed thus:
"The formula of subjective satisfaction of the
Government or of its officers, with an Advisory
(I) [1952] S.C.R. 597, 607, 6o8.
3 s.c.R. SUPREME COURT REPORTS
151
Board thrown in to review the materials on which
r96o
the Government seeks to override a basic freedom
Kishan Chand
guaranteed to the citizen, may be viewed as reasonArora
able only in very exceptional circumstances and
v.
within the narrowest limits, and cannot receive Commissioner of
judicial approval as a general pattern of reasonable Police, c.1,uua
restrictions on fundamental rights."
-
The learned Chief Justice adverting to the procedural
aspect of the restriction criticised the absence of a provision in the impugned Act for personal service on
the association and thus depriving its members of the
opportunity to make their representations.
Compared with s. 39 of the Act, the impugned provisions of the Criminal Law Amendment Act impose
more stringent control, on the exercise of the discretionary power by the Government. Yet the Court
struck down the provisions. The attempt made to
distinguish that decision on the ground that it related to the fundamental right of freedom of speech cannot be justified as the freedom to do business is also
one of the important fundamental rights under the
Constitution.
The case of Thakur Raghuhir Singh v. Court of
Wards, Ajmer (1) was concerned with the question of
the reasonableness of the provisions of s. 112 of the
Ajmer Tenancy and Land Records Act (XLII of
1950) which provided that "if a landlord habitually
infringes the rights of a tenant under this Act, he
shall, notwithstanding anything in s. 7 of the Ajmer
Government Wards Regulation, 1888 (I of 1888),
be deemed to be a 'landlord who is disqualified
to manage his own property' within the meaning
of s. 6 of the said Regulation and his property
shall be liable to be taken under the superintendence of the Court of Wards." The determination
of the question whether a landlord habitually infringed the rights of a tenant was left to the Court of
Wards. This Court held that that section was void
as being unreasonable restriction on the right in property as the restriction made the enjoyment of that
right to depend upon the mere discretion of the
l•l [1953] s.c.R. 1~9. 10;5.
Subba Rao].
Kishan Chand
Arora
v.
Commissioner of
Poli<;e, Cal<;utta
Subba Rao ].
152
SUPREME COURT REPORTS
[1961]
executive. Mahajan, J., as he then was, observed as
under:
"When a law deprives a person of his possession
of his property for an indefinite period of time
merely on the subjective determination of an executive officer, such a law can, on no construction of
the word "reasonable"· be described as coming within that expression, because it completely negatives
the fundamental right by making its enjoyment
depend on the mere pleasure and discretion of the
executive, the citizen affected having no right to
have recourse for establishing the contrary in a
civil court."
Though s.