Y R PARPIA Vs. R M D CHAMARBAGWALLA

JUDGEMENT

(1.) THE petitioner in this case is the sole concessionaire for India, Burma and Ceylon of Messrs. Littlewood's Pool Limited, Liverpool, who are conducting on a large scale a Football Pool Competition. In July 1946, the petitioner applied for and obtained a license from the Collector of Bombay for a period ending March 31, 1947. He further applied and obtained a license for a further period ending March 31, 1948. On the expiration of that period he made an application for a renewal of his license, and the Collector of Bombay refused to renew the license. On that he presented a petition for a mandamus under Section 45 of the Specific Relief Act to compel the Collector to issue the license to him. THE matter came up before Mr. Justice Bhagwati and he made an order on the Collector to issue the license to him. From the order of Mr. Justice Bhagwati the Collector of Bombay has come in appeal before us.

(2.) THE license which the petitioner seeks is issued under the Bombay Prize Competition Tax Act, 1939, and Section 4 of that Act provides that no prize competition shall be conducted unless a license in respect of such competition has been obtained by the promoter thereof from the Collector. This section does not provide for the issue of any license by the Collector, but it cannot be and it is not disputed that there is implied and assumed in the section a power on the part of the Collector to issue a license. THE question that arises for determination is whether this power is discretionary or whether it is a. power coupled with a duty and the Collector is bound to exercise the power in favour of the petitioner if he complies with the conditions laid down in the Statute. Now, the principles which have to be considered in determining this question have been by now very well settled and I had occasion to attempt to formulate them, after considering various English decisions, in the case of Chief Controlling Revenue Authority v. Maharashtra Sugar Mills (1947) 49 Bom. L. R. 893. Those principles clearly show that not much help or guidance can be obtained for determining this question from the language and the terms of the section itself. On the face of the language used in the section it could not be said that there is any obligation upon the Collector to issue a license in favour of the petitioner. But that question has got to be decided aliunde by considering the object, the scope and the scheme of the Act. If it is found in considering these factors that there is a right created in favour of the applicant, then the law will assume a corresponding duty on the part of the respondent. THErefore, what we have to determine is, after looking at the scheme of the Act, whether there was any right in the petitioner to obtain a license from the Collector. If we find that there was such a right, then the power with which the Collector is entrusted under Section 4 is a power which he must exercise in favour of the donee of such a right.

(3.) THE case very strongly relied upon by Mr. Kolah is a judgment of Mr. Justice Blackwell in Ratanshaw Nusserwanji v. Mcelhinny (1941) 43 Bom. L. R. 896. In that case an application was made for a license for tapping toddy under the Bombay Toddy Tapping Rules framed under the Bombay Abkari Act. THE Collector refused to grant the license on the ground that the policy of Government was declared to be in favour of general prohibition, and Mr. Justice Blackwell held that the Collector was under an obligation to issue a license to the petitioner. In coming to this conclusion Mr. Justice Blackwell considered the scheme of the Bombay Abkari Act and also the rules framed thereunder. THE learned Judge refers to Section 14 of the Act which provides that no toddy producing trees shall be tapped except under the authority and subject to the conditions of the license granted in that behalf by the Collector. THEn he went on to consider the Bombay Toddy Tapping Rules, 1928, and Rules 9 to 12 provide for various formalities that have to be gone through after an application for a license was made, and what has got to be done by the Excise Inspector and the Superintendent and the other Government Officers is described in mandatory language in these Rules, and as it is obvious from the judgment of the learned Judge, what weighed with him considerably was the imperative nature of the terms used in these Rules. THE learned Judge says (p. 907): Having regard to the use of the word 'shall' in these rules, which are to have the same foree as if enacted in the Act, I am of opinion that no question of the exercise of any discretion by the collector in the granting of a license arises, provided that the requirements of the rules are complied with, but that a statutory duty to issue a license is imposed Section 14 (1) of the Act, which I shall proceed to consider, read in conjunction with the rules. It is needless to say that in the case before us, although rules are framed under the Act, there is no such language used as was used in the rules Mr. Justice Blackwell was considering. Mr. Kolah has drawn our attention to the fact that even in the Abkari Act there was a provision with regard to suspension and cancellation of licenses. Section 32, in the first instance, mentions specific grounds on which a license could be cancelled. THEn Section 32a provides that whenever the authority granting a license considers that it should be cancelled for any cause other than specified in Section 32, he may cancel the license. It may be that the power of cancellation conferred under Section 32a is very wide and that may lead to the inference that there was no right in the applicant to obtain an abkari license provided he satisfied the conditions laid down in the Act, and that the rules framed under that Act were merely procedural and cast no obligation on the authority to issue a license. But, in our opinion, Mr. Justice Blackwell's decision rests solely on the view that he took of the particular rules framed under the Abkari Act, and it is unnecessary to consider whether that decision is a correct decision from the larger point of view which we are considering on the facts of this case.