dedol-hf/india-case-legal-rag huggingface dataset:
post  office in forwarding orders issued by some  other  au-
thority.   We have no hesitation in reaching the  conclusion
that this is not an order of cancellation by the Commission-
er but merely intimation by him of an order passed and  made
by  another authority, namely the Government of  Bombay.
     An attempt was made by referring to the  Commissioner's
affidavit to show that this was really an order of cancella-
tion  made by him and that the order was his.order  and  not
that of Government. We are clear that public orders, public-
ly  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 acting and conduct of  those
to hum 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 grant-
ed  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.
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 suspended 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  Sep-
tember  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 Adviso-
ry  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 Commissioner acted only as
a transmitting agent.
    It is next necessary to determine whether the Government
of  Bombay  had the power to cancel a license  once  issued.
That  depends  on  a consideration of the  Rules.  They  are
framed under section 22 (1) (f) (i) (g) and (h) of the  City
of  Bombay Police Act, 1902. They regulate  the  "licensing,
controlling,  keeping and regulation" of places.  of  public
amusement in
     19
142
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 withdraw or modify a  license  once
issued.  Ordinarily,  a man can do what he  likes  with  his
property  subject of course to specific laws regulating  his
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 normally  have  a
right to demand that the necessary permission be given.  But
that sort of consideration does not apply to a place intend-
ed  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 in 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 partic-
ular 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."
  These preliminaries include-
  (a) the making of an application in writing to the Commis-
sioner of Police, and
143
    (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  Com-
missioner" and the rule prescribes that-
    " no application shall be considered before the  expira-
tion 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  pro-
posed 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  resist-
ing  material  for the roof, stage staircases  and  dressing
rooms  of a certain type, seating  arrangements,  Corridors,
exits and so forth.  This part of the rules would apply to a
building  already  in  existence but not  yet  licensed  for
public  performance  as well as to one which has yet  to  be
erected.
Part IV relates to the
   "Use of cinematograph Apparatus  and  other optical  Lan-
terns."
    The  rules prescribed there are mainly for  purposes  of
health and safety.
    Parts  V and VI do not concern us.  They prescribe  spe-
cial  rules for Circuses and for exhibitions of  Boxing  and
Wrestling.
Then  comes Part VII which is material for present  pur-
poses.  It is headed "Licenses".  Rule 237  prescribes  that
"The  person  being the owner, tenant or  occupier  of  such
premises  and  the person who proposes to  give  any  public
performance, entertainment or exhibition on
144
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 23S prescribes  that
:-
"No such premises shall be opened, or kept open 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 license."
   Rule 248 invests the Commissioner 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  resi-
dents 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  dis-
cretion at any time to cancel or suspend any license granted
under these Rules..."
  After  Rule 257 comes a second sub-heading entitled  "Per-
formance License" and Rules 258 to 28:3 set out the require-
ments  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 clear to us from a perusal of these rules that the
only  person  vested  with authority to grant  or  refuse  a
license  for the erection of a building to be used for  pur-
poses 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 Govern-
ment and can only be exercised by him at his discretion.  No
other 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
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  Bombay.   Part  II
which  deals with the erection cinema houses nowhere  autho-
rises  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  "prelimi-
naries  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  indi-
cates  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  occu-
pier 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  can-
cellation  of a license already issued but the  only  person
who  can  effect  the cancellation is  the  Commissioner  of
Police.
    It was contended that this would work great hardship  in
some  cases and that if money had already been  expended  on
the  building an estoppel at least would arise. No  question
of estoppel has been raised here, so that is not a  question
we  need consider nor need we answer the  converse  question
whether  an  estoppel would hold good in the face of  a  law
enacted  for  the public good on grounds of  public  policy;
also  whether there can be an estoppel when a person  builds
knowing  the risk he runs of cancellation at any time  under
Rule 2S0.
    The next question is whether an order in the nature of a
mandamus  can issue under section 45 of 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 confined here to section 45  of
the Specific Relief Act.
146
The  jurisdiction,conferred by. that section is very    spe-
cial in kind and is strictly limited in extent though the am
but of the powers exercisable within those limited is  wide.
Among the limitations imposed are the following: 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 for bearing is clearly recumbent   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 appli-
cant 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  erec-
tion of a cinema.
    Taking  the second. first, it is evident from the  rules
that there is no specific law which requires the Commission-
er  to grant a license on the fulfillment 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 should 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 grant-
ed 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  cancella-
tion  already effected: that would fetter the absolute  dis-
cretion
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 cancel  the
license  he granted.  He merely forwarded to the  respondent
an  order of cancellation which another authority  had  pur-
ported  to  pass.  It is evident from these facts  that  the
Commissioner had before him objections which called for  the
exercise  of the discretion regarding cancellation  specifi-
cally vested in him by Rule 250.  He was therefore bound  to
exercise  it and bring to bear on the matter his  own  inde-
pendent  and  unfettered  judgment and  decide  for  himself
whether  to  cancel the license or  reject  the  objections.
That duty he can now be ordered to perform under section 45.
    It was objected as to this that there is no specific law
which  compels  him  to exercise the  discretion.  Rule  250
merely vests a discretion in him but does not require 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(i), observations which have our full and  respect-
ful concurrence :--
    "There  may  be  something in the nature  of  the  thing
empowered  to be done, something in the 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  whose 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  rea-
sons  involving the  convenience, safety,
(1) 5 App. Cas. 214 at 222, 223.
148
    morality  and welfare. of the public at large.  An  ena-
bling  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 performance cannot  be  com-
pelled  for another reason. Section 45, it was said,      is
limited to duties which must be performed or forborne
    "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  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  re-
spondent could have ignored the so called order of cancella-
tion 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
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 primarily compels obedience as a  matter
of  prudence and precaution. It may in the end prove  to  be
ineffective,  as has happened in this case, but it would  be
wrong  to expect a person on whom it is served to ignore  it
at  his peril however much he may be legally entitled to  do
so.  Also, the very fact that this order was served on  him,
especially when it followed on the Commissioner's letter  of
the 19/20th September, 1947, indicated that objections of  a
serious  nature  which  it was the  Commissioner's  duty  to
consider  had  been raised.  The respondent had a  right  to
expect  the  Commissioner to make up his mind  and  reach  a
decision,  otherwise it left him in a state of  uncertainty.
If  he  commenced to build, the Commissioner  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
are  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 clear  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  would not be a proper and adequate remedy  in  certain
cases.  Each case must necessarily depend on its  own  facts
and  we have no intention of laying down any hard  and  fast
rule.   But we do not think that would be adequate  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  Procedure 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 commer-
cial 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
               20
150
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 theater which is all the  while  acquiring
reputation  and  goodwill,  two  undefinable  but  important
considerations in commercial 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  cumu-
latively  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  injunc-
tion  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) (1)  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 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 intimat-
ed  to the petitioner he instructed his solicitors to  write
to the Commissioner and enquire
(1) 50 I.A. 227 at 233.
151
why  the permission granted had  been  so  arbitrarily  can-
celled.   This  was on the 18th November, 1947.   The  reply
dated  3/4th December, 1947, was 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 :--
    "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  the  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 :--
       "Our client feels that he has not been treated fairly
and that justice has been denied to him."
The only reply to this was :--
 "I  am directed to inform you that Government  does  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