COMMISSIONER OF POLICE, BOMBAY v. GORDHANDAS BHANJI
Citation: [1952] 1 S.C.R. 135; 1951 INSC 52
Court: Supreme Court of India
Bench: MEHR CHAND MAHAJAN , SIR SYED FAZL ALI, VIVIAN BOSE
Judgment date:
Case summary
1951 INSC 52. Supreme Court of India judgment dated 1951-11-23. COMMISSIONER OF POLICE, BOMBAY v. GORDHANDAS BHANJI. Read the judgment and case details on...
Judgment 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-Maintain- abilit~P:aper 1'elief-:Publi f the public at large it was coupled with a duty to exercise it \¥hen the circumstances so demanded. The Commissioner could con- sequently 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 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 mmissioner has stated in his affidavit that "I was fully satisfied that the petitioner's appli- cation 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 over- borne• 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 Govern- ment presumably by the "public" who were opposing the scheme.
Anyway, the Commissioner wrote to the respondent on the 19/20th September, 1947, and dirett- 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 com- munication : · • "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 hesita- tion in reaching the conclusion that this is not an order of cancellation by the Commissioner but merely inti- matign by him of an order passed and made by another authority, namely the Government of Bombay. ' An attempt was made by referring to tlie Commis- sioner'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 explana- tions 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 in- tended 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 authori- ties 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 pre- cision what they are expected to do or forbear from doing and exactly what authority is making the order. t / 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 Commis- sioner 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 permis- sion 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 Com- missioner 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, keep- ing 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. Considera- tions 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, there- fore 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 nor- mally have a right to demand that the necessary per- mission 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 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 for- borne. 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 appli- cant. 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 Com- missioner 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 discre- tion 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 ob- jections 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 sec- tion 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 enab- ling 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 perform- ance of public duties by public officers.
It is intended to open up a swift and summary remedy to the sub- ject 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 Govern- ment 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 in- volve 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 reme- dy 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, in- ordinate 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 under- takings. 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 considera- tions taken separately might not be enough to fulfil this requirement of section 45, but considered cumula- tively 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 sec- tion 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 can- cellation 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 arbit- rarily 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 Govern- ment and that they should be approached in the mat- ter. 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 . can- cellation of the permission. Our client was really en- titled 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 re- plied to on the 16th of February, 1948, and the peti- tioner'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 deter- mined 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 re- quired "where jt is manifest it would be but an idle ceremony" (See Ferris on Extraordinary Legal Reme- dies, 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 un- fettered 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 modifica- tion 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. .. ,. _ • ..
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