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PETITIONER: COMMISSIONER OF POLICE, BOMBAY

       Vs.

RESPONDENT: GORDHANDAS BHANJI.

DATE OF JUDGMENT: 23/11/1951

BENCH: BOSE, VIVIAN BENCH: BOSE, 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 the Commissioner of Police, Bombay.  The respondent  applied for reconsideration of his application and the Commissioner, acting  on  the  advice of the  Cinema  Advisory  Committee, 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 the High Court of Bombay  for  an order  under s. 45 of the Specific Relief Act directing  the Commissioner of Police, Bombay, to withdraw the cancellation

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and to grant permission for the erection of the cinema,  and the  High  Court  directed the Commissioner  of  Police  "to withdraw  the  order of cancellation passed  by  him."   The Commissioner of Police appealed to the Supreme Court.     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 the Cinema  Advisory  Committee  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 the Commissioner of Police.  (iii)  The relief sought by the respondent of an injunction to direct the Commissioner of Police 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 the State  Government 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-

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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), Alcock,  Ashdown & Co v. Chief Revenue Authority (50  I  .A. 227) referred to.

JUDGMENT:      CIVIL  APPELLATE JURISDICTION:  Civil  Appeal No. 93 of 1951.  Appeal  from the Judgment and Decree of  the   Bombay High  Court (Chagla C.J. and Bhagwati J.) 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 High Court (Tendolkar J .) in Miscellaneous Application No.  223  of 1948.  The facts of the case and  arguments  of counsel are stated fully in the judgment. C.K.  Daphtary, Solicitor-General for Indict (G.  N.  Joshi, with him)for the appellant.     N.C.  Chatterjee  (R. M. Hajarnavis, 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 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  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 138     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 the Government of  Bombay, 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 the Government  of Bombay,"

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and he promised that     "when a decision is arrived at, your application will be examined."     It seems that somewhere about this time a Cinema Adviso- ry Committee was constituted by Government. 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 Committee "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 Committee advised that  the  application should  be granted. Accordingly, the  Commissioner  accorded the necessary permission by his 139 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 the  Cinema Advisory Committee 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  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  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." 140       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

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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

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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

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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"

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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-

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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

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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

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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 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 Government under whose orders he said he  was acting. The demand made to Government and the denial by them were therefore in substance a demand made to the 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 152 show that the party complained of has distinctly deter mined not  to do what. is demanded (See 9 Halsbuy’s Laws  of  Eng-

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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  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  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  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: P.A. Mehta.  Agent for the respondent: Rajinder Narain. 153