9911796707
TMI Blog1951 (11) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... question 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 Magistrate 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 the present." On the 1st of October, 1945, Andheri became a part of Greater Bombay and the jurisdiction to grant or refuse a license was transferred to the Commissioner of Police, Bombay. The respondent accordingly put in a second application on the 21st of November, 1945, and addressed it to the Commissioner of Police. After some correspondence this was also turned down on the 19th of March, 1946, "o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14th of July, 1947." That, however, would not affect the validity of his order. There is no suggestion that his will was 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 the 16th of July, 1947, was therefore a good and valid sanction. This sanction 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 direct him "not to proceed with the construction of the cinema pending Government orders." Shortly after, on the 27/30th September, 1947, the Commissioner sent the respondent the following communication: "I am directed by Government to inform you that the permission to erect a cinema at the above site granted to you under this office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nveys 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 dated 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 cancellation came from Government and that the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) the making of an application in writing to the Commissioner of Police, and (b)the giving of a certain notice as a preliminary to the application. This notice has to be in the form prescribed in Schedule A and has to be maintained on a certain 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 receipt 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 the matters which the application shall contain and the documents which must accompany it including plans and specifications of the proposed building. Part III prescribes various structural details with which the building must conform. They include fire resisting material for the roof, stage staircases and dressing rooms of a certain type, seating arrangements, Corridors, exits and so forth. This part of the rules would apply to a building already in existence but not yet licensed for public performance as well as to one wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to other matters 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 Bombay. Part II which deals with the erection cinema houses nowhere authorizes 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 the actual issue of the license is in Part VII, and Rules 237 and 238 in that part require the owner, tenant or occupier of premises intended to be used for a cinema house for public amusement to take out a license as well as for the person who proposes to give a public performance on such premises. In our opinion, Rule 250 does authorise the cancellation of a license already issued but the only person who can effect the cancellation is the Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 canceling 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 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 cancel the license he granted. He merely forwarded to the respondent an order of cancellation which another authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or excesses on the part of public officers or, on the other, of laziness, incompetence, 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 other 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be It may be that any one of those considerations taken separately might not be enough to fulfil this requirement of section 45, but considered cumulatively we are of opinion that the applicant has no other adequate remedy in tiffs case. 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 (A1cock, Ashdown Co. v. Chief Revenue Authority, Bombay) (50 I.A. 227 at 233) where Lord Phillimore says at page 233 :- "To argue that if the Legislature says that a public officer, even a revenue officer, shall do a thing, and he without cause or justification refuses to do that thing, yet the Specific Relief Act would not be applicable, and there would be no power in the Court to compel him to give relief to the subject, is to state a proposition to which their Lordships must refuse assent." Their Lordships then issued an order under section 45. Lastly, it was urged that the petition is incompetent because the provisions of section 46 of the Specific Relief Act have not been complied wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined not to do what. is demanded (See 9 Halsbuy s Laws of Eng land, Hailsham edition, page 772). And in the United States of America a demand is not required "where it 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 did not make the order and that even if he did, a direction of that sort would not lie because of the discretion vested in 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 dated the 14/16th of July, 1947, and, after weighing all the different aspects of the matter, and after bringing to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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