A) ABSTRACT / HEADNOTE
This landmark Supreme Court decision in Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16 addresses the crucial administrative law principle that discretionary power must be exercised independently and in good faith. The case arose from the cancellation of a permission to construct a cinema hall granted by the Commissioner of Police, Bombay, upon government instructions. The respondent approached the Bombay High Court seeking a writ of mandamus compelling the Commissioner to withdraw the cancellation and regrant the permission. The High Court granted the relief. The Commissioner appealed to the Supreme Court.
The Supreme Court, in a detailed and methodical judgment by Justice Vivian Bose, held that the power to grant and cancel a cinema license under the City of Bombay Police Act, 1902 vests exclusively with the Commissioner. Hence, the government’s purported cancellation was ultra vires. The judgment clarifies that statutory discretion, though permissive in language, may imply a duty to act, drawing strength from the doctrine of duty coupled with power. Furthermore, it emphasized that public orders issued in exercise of statutory powers must be interpreted based on the order’s contents and not on subsequent explanations.
This case is a cornerstone in administrative law and constitutional remedies, especially regarding judicial review, writs under Section 45 of the Specific Relief Act, and separation of powers. The case reiterates that public functionaries must not act as rubber stamps of higher authorities when exercising statutory discretion.
Keywords: Administrative Law, Discretionary Power, Specific Relief Act Section 45, Mandamus, Bombay Police Act, Judicial Review, Ultra Vires, Cinema Licensing, Public Authority, Duty Coupled with Power.
B) CASE DETAILS
i) Judgement Cause Title: Commissioner of Police, Bombay v. Gordhandas Bhanji
ii) Case Number: Civil Appeal No. 93 of 1951
iii) Judgement Date: 23rd November 1951
iv) Court: Supreme Court of India
v) Quorum: Justice S.R. Fazl Ali, Chief Justice Meher Chand Mahajan, and Justice Vivian Bose
vi) Author: Justice Vivian Bose
vii) Citation: AIR 1952 SC 16; 1952 SCR 135
viii) Legal Provisions Involved:
ix) Judgments overruled by the Case: None explicitly overruled.
x) Case is Related to which Law Subjects: Administrative Law, Constitutional Law, Public Law, Municipal Law, Judicial Review.
C) INTRODUCTION AND BACKGROUND OF JUDGEMENT
The dispute revolves around the administrative discretion exercised by the Commissioner of Police under statutory authority to issue licenses for cinema construction in Bombay. Initially denied, the license was later granted by the Commissioner but subsequently revoked following directions from the Government of Bombay. The legality of this revocation formed the core of the constitutional challenge. The judgment squarely addresses the doctrine of independent discretion and the illegality of acting under dictation. The case arose in the backdrop of post-independence urban governance where the demarcation of power between State Governments and local public functionaries needed judicial calibration.
D) FACTS OF THE CASE
In 1945, Gordhandas Bhanji, the respondent, applied for permission to erect a cinema at Andheri, then outside the Bombay municipal limits. The District Magistrate refused the application citing local opposition and the existence of another cinema. Upon the integration of Andheri into Greater Bombay on October 1, 1945, the licensing jurisdiction shifted to the Commissioner of Police, Bombay. Bhanji reapplied in November 1945, but the Commissioner rejected it in March 1946.
Unfazed, Bhanji reapplied on April 1, 1946, asserting public demand and the government’s intent to develop Greater Bombay. The matter was reviewed by the Cinema Advisory Committee, which initially found the site unsuitable due to proximity to schools. However, it reversed its stance within a month, recommending approval. Based on this, the Commissioner granted permission on July 16, 1947.
Soon after, the State Government intervened and “directed” the Commissioner to cancel the permission, which was conveyed via a letter dated September 30, 1947. The Commissioner did not exercise his own discretion but merely transmitted the government’s direction. Bhanji challenged this before the Bombay High Court under Section 45 of the Specific Relief Act, seeking mandamus. The High Court allowed the petition. The Commissioner then appealed to the Supreme Court.
E) LEGAL ISSUES RAISED
i) Whether the Commissioner of Police could validly cancel a license at the direction of the Government without exercising his own discretion?
ii) Whether the government had the authority under the City of Bombay Police Act, 1902 to direct cancellation of such licenses?
iii) Whether a writ of mandamus under Section 45 of the Specific Relief Act could lie to compel the Commissioner to act independently?
iv) Whether Rule 250 of the Licensing Rules under the Act empowered the Commissioner with exclusive discretionary authority?
v) Whether the respondent had any adequate alternative legal remedy?
F) PETITIONER/ APPELLANT’S ARGUMENTS
i) The counsels for the Petitioner / Appellant submitted that the Commissioner had the authority to cancel the license under Rule 250, and it was immaterial that the decision was made on government instructions. They contended that administrative subordination allowed the government to intervene.
ii) They argued that the order was valid since the Commissioner merely followed lawful superior instructions, which were permissible under administrative hierarchy.
iii) It was further argued that the respondent had the alternative remedy of a civil suit or could have ignored the cancellation order at his own risk, hence Section 45 was inapplicable.
iv) They maintained that the Cinema Advisory Committee’s recommendation was not binding and that the Commissioner’s affidavit proved his personal agreement with the cancellation.
G) RESPONDENT’S ARGUMENTS
i) The counsels for the Respondent submitted that the Commissioner had granted the license under Rule 8 and 238–257 after due process and exercising statutory discretion.
ii) They argued that Rule 250 gave the Commissioner absolute discretion to cancel a license, but only if he personally evaluated the facts and took a decision, which was not done here.
iii) The cancellation communicated on September 30, 1947, clearly stated it was under government direction, showing the Commissioner acted merely as a conduit.
iv) The respondent had no adequate alternative legal remedy. Ignoring the order would risk punitive consequences from the State, and litigation would have involved prolonged delays.
v) The respondent urged that a writ under Section 45 was justified to direct the Commissioner to discharge his statutory duty independently.
H) RELATED LEGAL PROVISIONS
i) Section 45 of the Specific Relief Act, 1877:
This section empowers courts to issue orders (akin to writs of mandamus) against public officers who fail to perform a public duty that is clearly enjoined by law. The respondent invoked this section to compel the Commissioner to either reaffirm or properly cancel the license by exercising his discretion under the applicable rules. The provision was key to assessing whether there was a statutory duty coupled with discretionary power, and whether its inaction could be judicially corrected[1].
ii) Rule 250 of the Licensing and Controlling Rules under City of Bombay Police Act, 1902:
This rule provides the Commissioner with absolute discretion to cancel or suspend a license “at any time.” The Supreme Court emphasized that such discretion must be exercised independently, not under external compulsion. The discretion is not unfettered when misused to comply with diktats from a non-competent authority[2].
iii) City of Bombay Police Act, 1902 – Section 22(1)(f), (g), (n):
These clauses empower the framing of rules regulating licenses for public performances and constructions for such purposes. Importantly, the Act vests licensing authority solely in the Commissioner of Police, making it ultra vires for the State Government to interfere[3].
iv) Rules 8, 238 to 257, 263 to 283 of the Licensing Rules:
Rule 8 initiates the process of applying for a license to erect public amusement buildings. Rules 238–257 regulate the licensing of premises. Rule 263–283 concern performance licensing. The bifurcation shows a clear legislative intent to separate structural permission from performance licensing—each requiring compliance and discretion from the Commissioner[4].
I) JUDGEMENT
a. RATIO DECIDENDI
i) The Supreme Court held that statutory discretion vested in the Commissioner of Police cannot be surrendered or subverted by directions from the government. The license granted on July 16, 1947, remained valid as the Commissioner never exercised discretion to cancel it. The communication dated September 30, 1947, was merely a transmission of the Government’s instruction and not a valid statutory cancellation under Rule 250[5].
ii) The Commissioner is the sole competent authority under the City of Bombay Police Act and the rules framed under Section 22(1). The State Government, not being vested with power under the Act, could not issue binding orders to cancel such a license. Administrative subordination does not override statutory independence[6].
iii) The Court also clarified that discretionary power under Rule 250, though framed permissively, carries an implied statutory duty to exercise it, especially where public interest or private rights are involved. Drawing from Julius v. Lord Bishop of Oxford [(1880) 5 App. Cas. 214], the Court emphasized that “where power is coupled with duty, its non-exercise is justiciable”[7].
iv) The word “law” in Section 45 of the Specific Relief Act includes not only statutory laws but also delegated legislation and administrative rules, thereby empowering courts to enforce duties arising out of such instruments[8].
v) The Court observed that public orders made in exercise of statutory authority must be interpreted objectively from the text of the order itself and not through post-facto explanations or affidavits. This principle aims at institutional transparency and legal certainty[9].
b. OBITER DICTA
i) Justice Bose opined that while advice from superior authorities or expert committees like the Cinema Advisory Committee may be consulted, the final decision must always reflect the Commissioner’s own mind and judgment. Administrative functionaries must not function as rubber stamps or mere post offices.
ii) It was observed that mandamus cannot issue to compel an authority to grant a license where discretion exists, but it can compel the authority to exercise discretion independently and transparently, which had not been done in this case[10].
iii) The Court remarked that even if governmental concern about local protest was legitimate, that alone could not justify superseding a statutory authority’s decision unless the law empowered such interference.
c. GUIDELINES
Though not styled as guidelines per se, the Supreme Court laid down important legal principles governing the exercise of discretionary powers by statutory authorities:
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Discretionary powers must be exercised by the authority to whom the statute entrusts them, and not by external authorities.
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Orders made under statutory powers must be clear, self-contained, and precise. Later explanations cannot supplement or modify their meaning.
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Public orders must be construed objectively, not in light of later affidavits or justifications.
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Statutory discretion may be coupled with a duty, especially where public interest or private rights are at stake.
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Mandamus under Section 45 can be used to compel an official to act independently and exercise discretion, but not to direct a specific outcome where discretion is absolute.
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Availability of other remedies (like injunctions or suits) does not preclude mandamus if such remedies are inadequate or inefficient, especially where delay would cause irreparable harm.
J) CONCLUSION & COMMENTS
The judgment in Commissioner of Police, Bombay v. Gordhandas Bhanji remains a watershed moment in Indian administrative law. It reiterates that statutory discretion must never be exercised under dictation, even from the State Government. The principle that “he who is to decide must hear and decide” reverberates throughout this decision. Public authorities acting under a statute are not bound by political or bureaucratic instructions unless expressly authorized by law.
The judgment also refined the scope of Section 45 of the Specific Relief Act, balancing judicial restraint with constitutional oversight. It carved out an intelligent middle path: courts won’t force authorities to act in a particular way, but will insist they act independently.
Moreover, the Court’s insistence on textual interpretation of public orders ensured transparency in public governance, rejecting the opacity of afterthought explanations. In today’s context of executive overreach and blurred administrative accountability, this judgment remains profoundly relevant.
K) REFERENCES
a. Important Cases Referred
i) Julius v. Lord Bishop of Oxford, (1880) 5 App Cas 214 – Doctrine of power coupled with duty[7].
ii) Alcock, Ashdown & Co. v. Chief Revenue Authority, Bombay, (1923) 50 I.A. 227 – Mandamus under Specific Relief Act.
iii) Ferris on Extraordinary Legal Remedies – No demand necessary where futile[11].
iv) Halsbury’s Laws of England, Vol. 9, p. 772 – Constructive denial of justice under mandamus law[12].
b. Important Statutes Referred
i) Specific Relief Act, 1877 – Section 45
ii) City of Bombay Police Act, 1902 – Section 22(1)(f), (g), (n)
iii) Rules framed under the Act – Rule 8, Rule 238–257, Rule 250, Rule 263–283
