ALIMAHOMED SALEMAHOMED Vs. MUNICIPAL COMMISSIONER OF BOMBAY

JUDGEMENT

(1.) This is an application under the Specific Relief Act, -. 45, for an order on the Municipal Commissioner to grant the applicant a license for stables for hack victorias erected by him at Love Lane, Mazagaon, under Section 394 (1) (c) of the City of Bombay Municipal Act III of 1888. The Municipal Commissioner has declined to issue a license in this case on the ground that he was prevented from doing so by the order of the Appeal Court: Bombay Municipality V/s. Mallandaine, (1928) 25 Bom. L.R. 1321. The Municipal Commissioner has put in an affidavit in reply to the application in which he concedes that but for the judgment of the Appeal Court he is quite willing to exercise his discretion in favour of the applicant and to issue a license to him as applied for by him. In the opinion of the Commissioner, who has a discretion in the matter, the applicant is entitled to the license and he says that if he had not been advised by his legal advisers that the Appeal Court judgment prevented him from exercising his discretion in the matter he would have issued the license to the applicant.

(2.) The question of the jurisdiction of this Court to order the Municipal Commissioner to exercise his discretion under certain circumstances under Section 45 of the Specific Relief Act has not been disputed, but I should like to refer to the judgments of this Court on the point which make it quite clear under what circumstances this Court has jurisdiction to interfere with the discretion of the Commissioner under Section 45 of the Specific Belief Act. As to the interference with the discretion of the Municipal Commissioner there is a decision of the Appeal Court in Haji Ismail V/s. The Municipal Commissioner of Bombay,(1903) I.L.R. 28 Bom. 253. That was also a case of refusal to grant a license to the applicant under Section 394 of the City of Bombay Municipal Act. The learned Judges of the Appeal Court lay down at page 260 as follows:-" The power, then, to grant licenses vested in the Municipal Commissioner under Section 394 being purely discretion, are the only limit to its exercise is that it should not be arbitrary, vague and fanciful; but it must be legal and regular." Then, on the facts of the case the Appeal Court found that they were not satisfied that the Commissioner had exercised his discretion arbitrarily and without any regard to the sanitary interests of the City for which the power is vested in him and accordingly dismissed the application of the applicant.

(3.) There is another decision of this Court in Gell V/s. Taja Noora,(1903) I.L.R. 27 Bom. 307 where the question was of the exercise of discretion by the Commissioner of Police in refusing to grant a license for the conveyance of the applicant on the ground that the Commissioner had approved a certain pattern of victoria as a public conveyance and had refused a license to the Victoria of the applicant on the ground that it did not conform to the pattern. That case also went up to the Appeal Court and both the Judge of the first instance Mr. Justice Russell and the Appeal Court held that the ground on which the Police Commissioner had refused to grant the license was illegal and that, therefore, the Court had jurisdiction under Section 45 of the Specific Relief Act to order him to issue the license asked for. The observations of Mr. Justice Batty at page 320 and Mr. Justice Starling at page 321 show that where the Commissioner has acted illegally in refusing to exercise his discretion this Court would interfere, and order him to exercise his discretion and issue the license.