PETITIONER: COMMISSIONER OF POLICE, BOMBAY Vs. RESPONDENT: GORDHANDAS BHANJI. DATE OF JUDGMENT: 23/11/1951 BENCH: <NAME>, VIVIAN BENCH: <NAME>, VIVIAN FAZAL ALI, SAIYID MAHAJAN, MEHR CHAND CITATION: 1952 AIR 16 1952 SCR 135 CITATOR INFO : D 1954 SC 592 (16) F 1955 SC 661 (7) APL 1958 SC 419 (34) D 1965 SC1740 (18) R 1970 SC1896 (15) RF 1975 SC 550 (9) R 1978 SC 851 (8) D 1982 SC 149 (44) R 1982 SC 691 (11) D 1982 SC1407 (12) ACT: City of Bombay Police Act (1 of 1902), s. 22(1)--Rules under the 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 Police--Permission granted by Commissioner--Cancellation of licence by Government--Validity of cancellation--Discretion of Commis- sioner--Duty to exercise discretion--Application for mandamus to order Commissioner to grant permission--Main- tainability--Proper relief--Public orders--Construction--Reference to explanations given subse- quently--Propriety of. HEADNOTE: An application by the respondent for permission to build a cinema on a site within the City of Bombay was rejected by <NAME>, Bombay. The respondent applied for reconsideration of his application and the Commissioner, acting on the advice of <ORG>, granted the application on the 16th July, 1947, though he indicated in an affidavit flied later that but for this advice he would have refused the application again. Subse- quently, under instructions from Government the Commissioner sent the following communication to the respondent: "I am directed by Government to inform you that the permission to erect a cinema at the above site granted to you under the office letter dated 16th July, 1947, is hereby canceled." The respondent applied to <ORG> for an order under s. 45 of the Specific Relief Act directing <NAME>, Bombay, to withdraw the cancellation and to grant permission for the erection of the cinema, and <ORG> directed <NAME> "to withdraw the order of cancellation passed by him." The Commissioner of Police appealed to <ORG>. Held, (i) that there was nothing in the letter dated 16th July, 1947, to indicate that the decision was not that of the Commissioner himself given in the bona fide exercise of the discretion vested in him. The sanction was not conse- quently invalid merely because the Commissioner decided to accept the advice of <ORG> even though without that advice he would not have granted the permission. (ii) There was no valid cancellation of the license because (a), the order of cancellation communicated to the respondent 'was one made by the Government of Bombay and not by the Commissioner on his own authority;he acted in the matter only as a transmitting agent; (b), under the rules framed under 136 section 22 (1) (f), (1) (g) and (n) of the City of Bombay Police Act 1902 the Government of Bombay had no power to cancel of license once issued. The only person vested with authority to grant or refuse a license for the erection of a building to be used for purposes of public amusement is <NAME>. (iii) The relief sought by the respondent of an injunction to direct <NAME> to grant permission for the erection of a cinema could not be granted because he had already granted permission and there was no valid order of cancellation. (iv) The other relief asking for an injunction directing the commissioner to withdraw the cancellation also could not be granted because Rule 250 vests the Commissioner with an absolute discretion in the matter. (v) Though there was no specific provision of law compel ling the Commissioner to exercise the discretion vested in him under Rule 250, inasmuch as the enabling power vested by Rule 250 was vested in the Commissioner for the welfare of the public at large it was coupled with a duty to exercise it when the circumstances so demanded. The Commissioner could consequently be ordered under s. 45 of the Specific Relief Act to exercise his discretion and decide whether the licence should or should not be cancelled. (vi) The words "any law" in s. 45 do not mean statutory law alone but embrace all kinds of law whether referable to a statutory provision or otherwise. Therefore the perform- ance of duties under the rules can be compelled under the provi- sions of s. 45 . (vii) There was no other specific and adequate legal remedy open to the respondent within the meaning of s. 45 for though the respondent could have ignored the so-called order of cancellation , he could only have done so. at his peril as it purported to emanate from <ORG> and was served by a public officer. The remedy of injunction was not a proper and adequate remedy in the circumstances of the present case. (viii) The petition was not incompetent under s. 46 of the Specific Relief Act as there had been a demand of justice and a denial thereof within the meaning of the section in the circumstances of the case. (ix) Public orders, publicly made, in exercise of a statu- tory 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 intend- ed to do. As such orders are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed' they must be construed objec- tively with reference to the language used in the order itself. 137 Julius v. Lord Bishop of Oxford (5 App. Cas, 214), <CITATION> (50 I .A. 227) referred to. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 93 of 1951. Appeal from the Judgment and Decree of <ORG> (<ORG> and <NAME> dated 6th Septem- ber, 1949, in Appeal No. 16 of 1949, arising out of the Judgment dated' 2nd February, 1949, of a Single Judge of the same <ORG> (<NAME> .) in Miscellaneous Application No. 223 of 1948. The facts of the case and arguments of counsel are stated fully in the judgment. <NAME>, Solicitor-General for Indict (<NAME>, with him)for the appellant.

<NAME> (<NAME>, with him) for the respondent.

1951. November 23. The Judgment of the Court was delivered by BOSE J.--The question here is whether an order should issue under section 45 of the Specific Relief Act against the appellant, who is the Commissioner of <ORG>, Bombay. The respondent, <NAME>, 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 permis- sion 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 applica- tion 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, "owing to public opposition." Nothing daunted, the respondent applied again on the 1st of April, 1946, and asked for a "reopening" of his case. One of the grounds given was that "The Government of Bombay are giving very careful atten- tion and affording all reasonable facilities to develop the Greater Bombay into a model one. A modern cinema, there- fore, of the type I propose to build is indispensable."

In view of that, not unnaturally, the Commissioner of Police appears to have consulted <ORG>, for he wrote to the respondent on the 25th of April, 1946, saying that "the whole question of considering and approving sites for cinemas is under the consideration of <ORG>,"

and he promised that "when a decision is arrived at, your application will be examined."

It seems that somewhere about this time <ORG> was constituted by <ORG>. We have not been enlightened about the scope and extent of its powers but it is evident from its nomenclature that its functions were purely advisory. Five members of this Committee appear to have inspected the site on the 12th of May, 1947, and after prolonged discussion they reached the conclusion that "in view of the location of four schools near by the site, this site is unsuitable for the purpose required and therefore it should be rejected."

A note was drawn up to that effect and the matter was ordered to be placed on the agenda of the next meeting of the <ORG> "for final decision."

This final decision has not been placed on record but the Commissioner of Police tells us in his affidavit that within a month the <ORG> advised that the application should be granted. Accordingly, the Commissioner accorded the necessary permission by his letter dated the 14/16th of July, 1947. There is no refer- ence here to the recommendations of the Advisory co Commit- tee and. though they may have weighed, and rightly, with the Commissioner there is nothing on the face of the letter to indicate that the decision was not that of the Commis- sioner himself given in bona fide exercise of the discretion vested in him.

We refer to this because the Commissioner has stated in his affidavit that I was fully satisfied that the petitioner's application should be refused, but that it was only at the instance of <ORG> that I granted the said per- mission on the 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 <ORG> 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 <ORG> orders."

Shortly after, on the 27/30th September, 1947, the Commissioner sent the respondent the following communica- tion:

"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 letter...dated the 16th July, 1947, is hereby cancelled."

It will be necessary at this stage to determine whether this was a cancellation by the Commissioner of on his own authority 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 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.

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 <ORG>. 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 <ORG> 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 <ORG>. 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 <ORG> 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 <ORG> and that the Commissioner acted only as a transmitting agent.

It is next necessary to determine whether <ORG> 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  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

(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 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 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.

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 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 <ORG> in <NAME> 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.

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 emanate from <ORG> itself served on the respondent by a responsible public officer. Whether, the order is his order or an order of <ORG> 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  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 <ORG> of the Privy Council (A1cock, <CITATION> ) (1) where Lord <NAME> says at page 233 :-

"To argue that if the <ORG> 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 <ORG> 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.

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 <ORG> and that they should be approached in the matter. <ORG> 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 <ORG> 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 by him but he clearly washed his hands of the matter by his letter of the 3rd/4th December, 1947, and referred the petitioner to <ORG> under whose orders he said he was acting. The demand made to <ORG> and the denial by them were therefore in substance a demand made to the Commission- er 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 the meaning of section 46 . In England the refusal need not be in so many words All that is necessary is to show that the party complained of has distinctly deter mined not to do what. is demanded (See 9 Halsbuy's Laws of Eng- land, <ORG> 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 differ- ent 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 <ORG> order. <ORG> 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 <ORG> has ordered:

The Commissioner of Police be directed to consider the requests made to him for cancellation of the license sanc- tioned by his letter dated the 14/16th of July, 1947, and, after weighing all the different aspects of the matter, and after bringing to bear his own unlettered judgment on the subject, himself to issue a definite and unambiguous order either canceling or refusing to cancel the said license in the exercise of the absolute discretion vested in him by Rule 250 of the Rules for Licensing and Controlling Theaters and Other Places of Public Amusement in Bombay City, 1914.

As the appeal fails except for the slight modification indicated above, the appellant will pay the respondent's costs.

Decree modified.

Agent for the appellant: <NAME>.

Agent for the respondent: <NAME>.


JUDGMENT <NAME>, J.

1. On the 4th November, 1908, <ORG> dismissed an appeal from an original decree on the ground that it was barred by limitation. From this order of dismissal the present appeal has been preferred, and in its support it has been contended, first, that the order was without jurisdiction and, secondly, that it was erroneous on the merits.

2. The original decree was passed on the 8th February, 1905, in <ORG> at Tanjore in the plaintiff's favour.

3. Against it the first defendant, <NAME>, preferred an appeal to <ORG>. The last day for its presentation was the 10th July, when the <ORG> reopened after vacation; but it was not presented until the 12th July, 1905.

4. It was then returned to the appellant as out of time. It thus became necessary for the appellant to satisfy the Court that he had sufficient cause for not presenting his appeal within the prescribed period.

5. He accordingly again presented his appeal on the 26th July, supported this time by affidavits purporting to explain the delay. The application for admission came before <NAME>, sitting as a single Judge, and on the 31st July he made an order in these terms : "Delay excused in the circumstances and appeal admitted.

6. When notice of this appeal was served on the respondents docs not appear, but in the following November affidavits were filed controverting the material allegations in those on which delay had been excused. Further affidavits were subsequently filed on both sides.

7. The appeal thus admitted came on for hearing before <ORG> of the <ORG> on the 7th October, 1908, and at the outset it was objected that the appeal was out of time, and so not competent. The <ORG>, after an examination of the several affidavits, accepted this view and dismissed the appeal, as provided by Section 4 of the Indian Limitation Act. A subsequent application for review failed.

8. It has been argued that the admission of the appeal by <NAME>, was final, and that <ORG> had no jurisdiction at the hearing of the appeal to reconsider the question whether the delay was excusable. But this order of admission was made not only in the absence of <NAME>, the contesting respondent, but without notice to him. And yet in terms it purported to deprive him of a valuable right, for it put in peril the finality of the decision in his favour, so that to preclude him from questioning its propriety would amount to a denial of justice. It must, therefore, in common fairness be regarded as a tacit term of an order like" the present that though unqualified in expression it should be open to reconsideration at the instance of the party prejudicially affected; and this view is sanctioned by the practice of the <ORG> in India.

9. But there remains the contention that, at any rate, the <ORG> exceeded its jurisdiction in permitting the question of limitation to be reopened at so late a stage as the hearing of the appeal. This objection, however, has all the appearance of an afterthought. It was not urged at the hearing, though the appellant was represented by so experienced an advocate as Sir <NAME>; nor was it even mentioned in the original review petition. It was no doubt advanced at a later stage as an additional ground for review, but it met with no success, for the High <ORG> held that the procedure adopted in this case was in accordance with the usual practice of the <ORG>. The authorities, moreover, show that this practice is not peculiar to Madras, and in the circumstances their Lordships hold that <ORG> had jurisdiction to reconsider the sufficiency of the cause shown, and to do this at the hearing of the appeal.

10. But while this procedure may have the sanction of usage, it is manifestly open to grave objection. It may, as in this case, lead to a needless expenditure of money and an unprofitable waste of time, and thug create elements of considerable embarrassment when the <ORG> conies to decide on the question of delay. Their Lordships therefore desire to impress on the <ORG>s in India the urgent expediency of adopting in place of this practice a procedure which will secure at the stage of admission, the final determination (after due notice to all parties), of any question of limitation affecting the competence of the appeal.

11. On the merits little need be said. It is the duty of a litigant to know the last day on which he can present his appeal, and if through delay on his part it becomes necessary for him to ask the <ORG> to exercise in his favour the power contained in Section 5 of the Indian Limitation Act, the burden rests on him of adducing distinct proof of the sufficient cause on which he relies. It was with the claim of such a litigant that <ORG> had to deal, and after a careful and critical examination and appreciation of the evidence, the learned Judges distrusted his explanatiou and held that sufficient cause had not been shown. The <ORG> therefore declined to exercise in his favour the power to excuse delay. It has not been shown that in this the <ORG> fell into any error, and their Lordships consequently decline to interfere with its decision. They will therefore humbly advise His Majesty that this appeal should be dismissed with costs.


<NAME>, J.

1. This appeal raises a question as to the validity of the provisions for the shebaitship of certain Hindu idols made by the will of <NAME>, who was a Hindu governed by <ORG> of Hindu law, and who died on March 26, 1927. The following genealogical table will show the relationship of the parties :-

<NAME> - Kadammoni Dasi |

| | | <NAME>) <NAME> | | | <NAME> | | -------------------------------------------------------- | | | | <NAME> Rash Behary Banku Behary 2. The testator was survived by his widow and by his three sons. 3. The material clauses of the will, which was made and published on November 18, 1923, and under which his sons <NAME> and <NAME> were appointed executors, are as follows :-

9. Subject to the payments aforesaid I give the rest and residue of my estate unto my executors and trustees upon trust to pay the balance of the income of my said estate to the <NAME> for the time being of the Thacoors Netai Gour and etc., established by me and located at my family dwelling house No. 23, Sankaritola Lane to be applied by the said <NAME> for the time being for the expenses of daily Sheba and periodical festivals and ceremonies of the said Thacoors as are usually observed and performed in Hindu families of my caste and I direct that after the death of all the legatees under this my will my executors and tustees shall make over the whole of the corpus and undrawn income of my said estate upto the <NAME> or <NAME> for the time being of my said Thacoors upon the trusts as aforesaid.

10. It is my will and I direct that the said house and premises No. 23, Sankaritola Lane shall always remain for the location and use of the said <NAME>s and my Executors and Trustees or the <NAME> shall have no power or authority to sell, mortgage or dispose of or deal with the said premises in any manner whatever and if at any time the said house and premises is acquired for any public purposes under any enactment for the time being in force them (sic) 1 direct that my executors and trustees shall with the money received for such acquisition purchase or build a suitable house in Calcutta or its suburbs for the location and use of the said <NAME>s. The <NAME> for the time being of the said <NAME> shall be entitled to live with their family in the said house and premises No. 23, Sankaritola Lane or in any other house or premises where the said <NAME>s may for the time being be located and my executors and trustees shall also allow my daughter <NAME> to reside in the said premises No. 23, Sankaritola Lane during her life.

11. I appoint my sons <NAME> and <NAME> to be the <NAME>s of the said Thacoors and I direct that upon the death retirement or refusal to act of any of them or any of the future <NAME>s the then next eldest male lineal descendant of <NAME> or <NAME> shall act as a <NAME> in place of the deceased or retiring <NAME> or <NAME>s refusing to act as such-it being my intention that the eldest for the time being in the male line of my said sons <NAME> and <NAME> shall always remain as joint <NAME>s and in the event of the death or refusal to act of any <NAME> the then next male member of the branch to which the <NAME> dying or refusing belonged shall act as a <NAME> in his place and stead.

4. The testator's son <NAME> died on May 24, 1927, leaving his son <NAME>, and the testator's son <NAME> died on October 17, 1928, leaving four sons as shown in the pedigree.

5. On April 25, 1929, letters of administration de bonis non were granted to the Administrator-General of Bengal, whereupon disputes arose as to which descendants of the testator were entitled to act as shebaits and to receive payment of the income of the estate, and the present suit was by originating summons taken out by the Administrator-General on August 1, 1933, for determination of the following questions :-

1. On a true construction of the Will of Luckey Narain Dhur is the appointment of Shebaits after the death of <NAME> and <NAME> (since deceased) and the line of succession to Shebaitship created by Clause 11 of the said Will valid?

2. If not, who are the persons at present entitled to act as Shebaits to the deities mentioned in the said Will in the events which have happened ?

3. In the events which have happened, to whom is the income of the residuary estate to be made over ?

6. It is agreed that there was a valid gift for life to the testator's sons <NAME> and <NAME> respectively, but it is maintained by the appellant that the rest of the clause is invalid in respect that it attempts to lay down a line of succession which is not permissible under the Hindu law, and that the persons entitled to act as shebaits are the heirs of the testator, including the appellant.

7. The respondents maintain that <NAME> and <NAME>, who were in life at the testator's death, and were respectively the next eldest male lineal descendants of <NAME> and <NAME> respectively on their deaths, were entitled to act as shebaits and to the income of the estate, by virtue of a gift for life to them, which was independent of the line of succession otherwise invalidly sought to be laid down by the testator.

8. <NAME>, who tried the case, upheld the contention of the present appellant, by a judgment dated January 10, 1934. On appeal, this judgment was reversed by <NAME> and <NAME>, who held that Clause 11 can be construed " as an intention to make an independent gift of the office for life to such person as happened to answer the description of ' eldest male lineal descendant' at the date of the death, retirement or refusal to act of <NAME> or <NAME>."

9. Their Lordships apprehend that the law applicable to the present case is well settled, and that the question is one of construction of the will.

10. The well known Tagore case : <CITATION> (1872) L.R.I.A. Sup. Vol. 47 laid down two separate principles :-(a) that a person capable of taking under a will must be such a person as could take a gift inter vivas, and therefore must either in fact or in contemplation of law be in existence at the death of the testator, and (b) that all estates of inheritance created by gift or will, so far as they are inconsistent with the general law of inheritance, are void as such, and that by Hindu law no person can succeed thereunder as heir to the estates described in the terms which in English law would designate estates tail. As <NAME> and <NAME> were in being at the testator's death, the first of these principles presents no difficulty.

11. In <NAME> <NAME> v. <NAME> (1899) L.R. 27 I. A. 69 : s.c. 2 Bom. L.R. 597 it was held by this Board that the second ruling in the <NAME> case above referred to is. applicable to an hereditary office and endowment as well as to other immoveable property. This decision was followed in <CITATION> (1932) I.L.R. 60 Cal. 452.

12. On the question of construction, Section 87 of the Indian Succession Act, 1925, provides, " The intention of the testator shall not be set aside because it cannot take effect to the full extent, but effect is to be given to it as far as possible." This reproduces, almost verbatim, Section 74 of the Indian Succession Act of 1865.

13. Their Lordships do not find it possible, as matter of construction of the clause here in question, to find a separable gift in favour of the persons who were to take respectively on the death, retirement or refusal to act of <NAME> and <NAME>. The testator combines the whole series of changes in the succession in one sentence, " upon the death, retirement or refusal to act of any of them (<NAME> or <NAME>) or any of the future shebaits," and additional force is given to this observation by the terms of the declaration of the testator's intention in the later part of the clause, which also covers the whole series of changes in the succession.

14. As is not unusual in such questions of construction, other cases are of little assistance, but the decision of this <ORG> in <CITATION> (1927) L.R. 55 I. A. 74 : s.c. 30 Bom. L.R. 282 may be cited by way of contrast. In that case a Hindu conveyed property to trustees upon trust to pay the income to the settlor during his life and after his death, as to one-fourth share, to the settlor's married daughter <NAME> " for her sole and separate use and after her death in trust for the male heirs of the said <NAME> share and share alike." <ORG> held, on the death of <NAME>, leaving six sons all of whom were alive at the date of the deed, that the intention was to create an estate descendible to male heirs only, and that the provision was invalid as an attempt to create an estate unknown to Hindu law. That decision was reversed by His Majesty in Council, and, in delivering the judgment of the <ORG>, Lord <NAME> said (p. 79) :-

Their Lordships are of opinion that the true interpretation is that the persons who answer the description of male heirs at the date of <NAME>'s death were the persons in whose favour an independent gift was made, but that by operation of the Hindu law there would be excluded from that class people who were not living when the deed was executed. There is nothing whatever in the words of the grant to show that the estate so conferred was anything but an absolute estate upon such persons. For there is nothing to suggest, on the one hand, that such estate was limited to their life or, on the other, that any line of descent was marked out after their death. It is true that the gift is in the form of a gift of income, but it is a gift unlimited in point of time, and if there be no restriction in the gift and no limitations beyond the actual beneficiaries at <NAME>'s death such a gift carries the whole estate.

In the present case the very elements are to be found, the absence of which were founded on in the above case as justifying the reversal of the decision of <ORG>.

15. It was further argued for the respondents that, even if no separable and independent gift to those who would take on the death, retirement or refusal to act of <NAME> and <NAME> respectively, it was still the duty of the <ORG> to give effect to the scheme of succession in so far as the person entitled to take under the scheme was in fact also the person who would take under the Hindu law of succession, this being true in the case of <NAME> and <NAME>. But this contention is the same as a contention which was rejected by the <ORG> in the <NAME> case, in the following passage, at p. 76 :-

Accordingly it has been argued in support of the will, that as it shews an intention to give an estate of inheritance of some sort, all the machinery by which that estate was to be governed and dealt with after it was created ought to be rejected, and such an estate of inheritance as the law would uphold and sanction ought to be read out of the will and conferred either upon <NAME> whose family was intended, so long as it produced males descended of males, to represent the estate described by the <NAME>, by treating his life estate as converted or expanded into an estate of inheritance, according to Hindu law, or at least upon his son to be begotten or adopted, as the first tenant in tail male, whereby the persons designated as heirs could take, though not in the fashion of the <NAME>, at least somehow and to some extent. In order however to arrive at this conclusion, we must find a general and prevailing intention of the <NAME>,'. expressed by the words of his will, which will be advanced by this process; and we are not at liberty to invent for him a will which will have the effect of creating an estate at variance not merely in details but in substance and effect with what he has said .... There is no trace to be found in the will of an intention to create any other sort of estate; and the will, as clearly as language can speak without express words, declares that it was not the intention of the <NAME> that any person to take thereunder should have the estate of inheritance defined by the ordinary law. If the <NAME> had used language to describe, however imperfectly or obscurely, such an estate as within his intention, effect ought to be given to that intention, when once arrived at by a fair and liberal interpretation of his language. To create such an estate by judicial construction of this will would be something worse than guesswork as to what the <NAME> might have said if he could be asked his meaning; for it would be to contradict in every article what he has intelligibly expressed.

The intention of the testator in the present case not to create an estate of inheritance as denned by the ordinary law is at least as clear as in the <NAME> case.

16. Their Lordships are accordingly of opinion that the decision of the trial Judge was right, and that, on the deaths of <NAME> and <NAME> respectively, the succession to the office of shebait and the income of the estate must be according to the ordinary Hindu law of succession, the provisions of Clause 11 of the will, in so far as it relates to the holding of the office of shebait after the respective deaths of <NAME> and <NAME>, constituting an invalid attempt to lay down a line of succession which is not permissible under the Hindu law.

17. Their Lordships will therefore humbly advise His Majesty that the appeal should be allowed, that the decree of <ORG> in its appellate jurisdiction dated July 20, 1934, should be set aside except as to the costs in that appeal, and that the, decree of <ORG> in its original jurisdiction dated January 10, 1934, so far as set aside by the above-mentioned decree, should be restored. The costs as between solicitor and client of all parties to this appeal, including the Administrator-General, to be paid out of the estate.


PETITIONER: BALMOKAND KHATRI EDUCATIONAL ANDINDUSTRIAL TRUST, AMRITSAR Vs. RESPONDENT: STATE OF PUNJAB & ORS. DATE OF JUDGMENT: 14/02/1996 BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. AHMAD SAGHIR S. (J) CITATION: 1996 AIR 1239 1996 SCC (4) 212 JT 1996 (3) 60 1996 SCALE (2)577 ACT: HEADNOTE: JUDGMENT:

O R D E R Notification under Section 4 [1] of the Land Acquisition Act , 1894 [for short, the "Act"] was published in <ORG> on February 26, 1976. Dispensing with the enquiry under Section 5-A , declaration under Section 6 was published on the same day. Notice under Section 9 was served on March 3, 1976. The appellant filed Writ Petition No.1359 of 1976 on March 7, 1976. On March 19,1976, <ORG> ordered stay of dispossession. After the counter- affidavit was filed by the respondents, <ORG> dismissed the writ petition on April 4, 1976. In the meanwhile, award enquiry was conducted and the award under Section 11 was made on March 18, 1976. Possession of the land was taken on April 17,1976. It would appear that the Land Acquisition Officer [LAO] had deposited the compensation on May 18, 1976. Record has been placed before us to show that the land was earmarked and distributed to 592 landless workers on April 22, 1976. On December 11, 1979, the appellant again filed Writ Petition No.4460 of 1979 which came to be dismissed by <ORG> on February 7, 1980. Thus this appeal by special leave. Interim stay granted on May 8, 1980 was modified by this <ORG>, maintaining status quo, by order dated September 13, 1981.

It is clear from these facts that after dispensing with the enquiry under Section 5-A , immediate action was taken by issuance of the notice under Section 9 and award enquiry was conducted since dispossession was ordered by <ORG>. After the dismissal of the writ petition, possession was taken on April 17, 1976. Thus the process of the requisition was completed and the acquisition became final. What remained to be done was only the determination of the compensation in respect of the acquired land. In this case, the land acquired is of the extent of 121 canals 10 marlas. <NAME>, learned counsel appearing for the appellant with his thorough preparation, has contended that dispensing with enquiry under Section 5 A is bad in law. However, we find no force in the contention. <ORG> has amended the Central Act by Amendment Act s II/1954, XVII/6 and XLVIII/1956 whereunder an explanation has been added to sub-section  of Section 17 of the Act. Sub-section  was also added in which clause [b] of the sub-section envisages thus:

"(b) whenever in the opinion of the Collector it becomes necessary to acquire the immediate possession of any land for the purpose of any library or educational institution or for the construction, extension or improvement of any building or other structure in any village for the common use of inhabitants of such village, or any godown for any society registered under Co- operative Societies Act , 1912, or any dwelling house for the poor, or the construction of labour colonies or houses for any other class of people under a Government sponsored housing scheme, or any irrigation tank, irrigation or drainage channel, or any well, or any public road;"

Thus the <ORG>, by virtue of State Amendment is empowered to exercise the urgency clause under sub-section [4] of Section 17 and to dispense with the enquiry under Section 5-A of the Act. <NAME> has contended that mere existence of the power is not sufficient. The urgency should be such as would not brook delay of 30 days in conducting the enquiry contemplated under Section 5-A . In this case, allotment of the house sites to the poor is not such an urgency which cannot wait for conducting the enquiry. Therefore, exercising the power under Section 17  is bad in law. He seeks to place reliance on the decision of this Court in <ORG> v. State of Maharashtra [(1977) 1 SCR 763]. In a recent decision in <ORG> v. State of U.P. & Anr. [[(1996) 1 SCALE 101], this Court considered the entire case law and held that providing house sites to the poor is an urgent necessity and exercise of the power under Section 17  to dispense with the enquiry under Section 5-A would be justified. The reasoning of this Court in <NAME>'s case also was considered and it was held that exercising the power under Section 17  cannot be struck down when the <ORG> was of the opinion that it urgently required the possession of the land for providing house sites to the poor.

It is seen that the entire gamut of the acquisition proceedings stood completed by April 17, 1976 by which date possession of the land had been taken. No doubt, <NAME> has contended that the appellant still retained their possession. It is now well-settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the Panchnama in the presence of <NAME> and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession.

Under these circumstances, merely because the appellant retained possession of the acquired land, the acquisition cannot be said to be bad in law. It is then contended by <NAME> that the appellant-Institution is running an educational institution and intends to establish a public school and that since other land was available, the Government would have acquired some other land leaving the acquired land for the appellant. In the counter-affidavit filed in <ORG>, it was stated that apart from the acquired land, the appellant also owned 482 canals 19 marlas of land. Thereby, it is seen that the appellant is not disabled to proceed with the continuation of the educational institution which it seeks to establish. It is then contended that an opportunity may be given to the appellant to make a representation to <ORG>. We find that it is not necessary for us to give any such liberty since acquisition process has already been completed.

Pursuant to the directions issued by this <ORG>, the Chief Secretary himself has conducted an enquiry and identified the officer who was responsible for the lapses in omitting to instruct the counsel and for not producing the record as part of the record of the <ORG>. We accept the report submitted by the Chief Secretary. It would be open to him to pursue further action to reach a logical conclusion.

The appeal is dismissed accordingly. No costs.