Y R PARPIA Vs. RMDCHAMARBAGWALLA

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/s. Maharashtra Sugar Mills . 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.) Therefore, let us look at the object, scope and the scheme of the Act. The preamble of the Act states that it is for the purpose of regulating and levying of tax on prize competitions in the province of Bombay, and judging merely by this preamble it would be possible to contend, as it has been contended by Mr. Kolah very strenuously, that this piece of legislation is a purely fiscal legislation. Section 2 contains definitions, and the prize competition with which we are concerned in this case is a prize competition which falls under Section 2, Sub-clause (2) (b). Section 3 is a charging section. It provides for a, levy of tax on prize competitions at the rate of 12 per cent, and Sub-clause (6) gives power to the Provincial Government to vary the rate to be levied so long as it does not exceed 25 per cent. Then comes Section 4 to which we have already referred and which provides for the issuing of a license. Mr. Kolah's contention is that a license is only to be issued under Section 4 for the purpose of facilitating the collection of revenue. It has no other purpose except this, and once the conditions laid down under the Act with regard to various formalities to be observed by the person who applies for the license are complied with, then the license must be granted as a matter of right. We shall deal with this contention a little more in detail when we come to consider the other sections of the Statute. Section 5 deals with expiry and renewal of the license. It is under this section that the petitioner has applied for a renewal of the license from the Collector. Section 5(1) provides that every license shall be in such form and subject to such conditions as may be prescribed and shall expire on the last day of the year for which it was granted and may be renewed from year to year; and Sub-clause (2) of Section 5 provides : "The Collector may impose for the grant or renewal of every such license such fee not exceeding Rs. 10 as may be prescribed." Section 6 is a penal section which is consequential upon Section 4. Section 7 provides for promoters keeping and maintaining accounts, and Section 8 is a penal section following upon Section 7. Section 9 gives the power to the Collector to inspect accounts maintained by the promoter. Section 10 is a very important section which gives the power to the Collector to suspend or cancel a license for reasons stated in that section. Now these reasons are set out in four Sub-clauses : (1) deals with the case of the tax mentioned in Section 3 not being paid; (2) deals with a breach of any of the conditions subject to which the license is granted, and (3) deals with the contravening by the licensee of the provisions of Section 7. Then comes Sub-clause (4) which is in these terms : "for any other reason for which the suspension or cancellation of the license is, in the opinion of the Provincial Government, necessary in the public interest." Now Mr. Kolah's contention is that Sub-clause (4) is ejusdem generis with what is contained in Sub-clauses (1), (2) and (3), or, in other words, according to Mr. Kolah, that the public interest contemplated in Sub-clause (4) is a public interest which is confined to the question of collection of tax. Therefore according to Mr. Kolah, all the four grounds mentioned in Section 10 are of a fiscal character. We are unable to accept that contention. With very great respect to the learned Judge who also took the same view that Sub-clause (4) was ejusdem generis with Sub-clauses (1), (2) and (3), on the face of this clause and the manner in which it has been drafted, it is impossible to hold that "in the public interest" is ejusdem generis with what is contained in Sub-clauses (1), (2) and (3). If the intention of the Legislature was that Sub-clause (4) should deal with the same genus as is dealt with in Sub- clauses (1), (2) and (3), then Sub-clause (4) would have stopped at the expression "necessary." But the Legislature has gone on to provide and mentioned a new-genus and indicated a different head which is "public interest," and it is impossible to contend that public interest is not something which is infinitely wider than fiscal considerations which might move and influence the State. It may be-and very often is-that collection of revenue from a certain source may be contrary to the interest of the State. Therefore, according to Mr. Kolah, although it may be under certain circumstances contrary to the interest of the State, to allow certain kinds of prize competitions to go on in Bombay, still it would not be open to the Provincial Government or the Collector under Section 10 to cancel the license for that reason, because that would not be a fiscal consideration and far from helping the collection of tax it would prevent the collection of tax. Once we come to the conclusion that it is open to the Collector to suspend or cancel a license for a reason which is other than a fiscal reason and a reason which in the opinion of the Provincial Government constitutes a reason of public interest, then that interpretation has a very great bearing both on Section 4 and on the question of whether the petitioner has or has not a right to the obtaining of a license, if he complies with the other conditions set out in the Act. If a license could be suspended or cancelled for public interest, then it is not possible for the petitioner to say that ha has a right to carry on his business of prize competition subject merely to the formal granting of license. Higher and wider considerations would then come into play. It would be then for Government to say whether under particular circumstances a particular prize competition business should or should not be allowed to go on, and if such a right is not vested in the petitioner, then in interpreting Section 4 we cannot say that a duty or an obligation is cast upon the Collector to grant a license to the petitioner. It is also difficult to see why, if the Collector can suspend or cancel a license for a particular reason mentioned in Section 10, that consideration cannot also move him in either refusing a license in the very first instance under Section 4 or refusing the renewal of a license under Section 5. Mr. Kolah has argued that whereas the Legislature has specifically provided for Sub-clause (4) in Section 10, no such limitation is placed either in Section 4 or Section 5 of the Act. Now, that has been done for a very good reason. When a license has been issued a vested right has been created, and in order to take away that vested right or interfere with that vested right there must be a specific statutory provision and that statutory provision is contained in Section 10. On the other hand, if the issuing of a license or the renewal of a license was discretionary with the Collector under Secs.4 and 5, no such considerations need be specifically stated, and the Legislature need not point out how and under what circumstances he should exercise his discretion. Look at the other absurdity of the situation, if we accept the contention of Mr. Kolah. According to him there is an indefeasible right in his client to obtain a license as soon as he applies for its renewal and complies with the conditions laid down in the Act. Yet under Section 10, on the very next day, it would be open to the Collector to suspend or cancel the license, if in the opinion of the Provincial Government such a cancellation or suspension became necessary in the public interest. And also according to Mr. Kolah (and he is driven to that conclusion, he says), it may be that after the Collector has suspended or cancelled the license, if the licensee were to apply again under Section 4 or Section 5 there would again arise an obligation on the part of the Collector to issue a license. Mr. Kolah says there is possibly a lacuna in the Statute, but we must not read and construe Acts in a manner which leave such anomalous and illogical lacuna to be filled up. Therefore, the authorities clearly lay down that when you are deciding whether a particular power with which an authority is vested is a power coupled with duty or merely a discretionary power, you must look at the whole scheme of the Statute, and if you come to the conclusion that it is not possible to reconcile all the sections of the Statute, if you interpret the power as a power coupled with duty, then you should not do so and give to the expression its ordinary plain meaning and construe it merely as a power to be exercised at the discretion of the authority. Therefore, under Section 4, in our opinion, the implied power to grant a license also carries with it the implied power to refuse to grant the license.