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Emperor Vs. Babaji Shivram Hegiste - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 18 of 1942
Judge
Reported in(1942)44BOMLR446
AppellantEmperor
RespondentBabaji Shivram Hegiste
DispositionApplication allowed
Excerpt:
.....a statutory power contains no provision authorising government to alter the conditions of the license, government are not entitled to make any alteration in the conditions of the license during the currency of the period for which the license is granted. - indian succession act (39 of 1925), section 63: [s.b. sinha & cyriac joseph, jj] will validity - deceased, was a very wealthy person - he floated several companies - he left behind his daughters, s and j - he was suffering from various diseases including some neurological ones - for his treatment, he used to frequently visit united states of america accompanied by his wife and daughter - by reason of a will, he is said to have bequeathed 50% of his property to s and 50% to j in a letter addressed to the 1st respondent, viz., s,..........him under and subject to the provisions of the tobacco duty (town of bombay) act, 1857, and the rules framed hereunder and on payment of rs. 25 to sell by retail superior tobacco at the premises mentioned therein.6. it is argued by the learned government pleader that the words 'and the rules framed hereunder' mean the rules framed, or which may be framed during the currency of the license. well, i do not take that view. the word 'framed' is in the past tense, and, prima facie, 'rules framed' mean rules which have been framed, and the expression does not cover rules not at present in existence, but which may be framed at a future time. if government intend by a license to reserve power to alter the conditions of the license after it has been granted and paid for, they must take that.....
Judgment:

Beaumont, Kt., C.J.

1. This is an application in revision against the conviction of the accused under Section 30 of the Bombay Shops and Establishments Act of 1939.

2. The case against the accused was that on August 13, 1941, his shop was open at 9-40 p.m. contrary to the provisions of Section 5 of the Bombay Shops and Establishments Act of 1939, which provides that, save as provided by or under any other enactment for the time being in force, no shop shall on any day be closed later than 9 p.m. The Act came into force on November 2, 1939.

3. The accused's defense is that he was entitled under another enactment in force on August 13, 1941, to keep his shop open till midnight. The accused's shop is a tobacco shop, conducted under the terms of the Tobacco Duty (Town of Bombay) Act of 1857. Section 11 of that Act provides that it shall not be lawful for any person to sell any tobacco in Bombay without a license from the Commissioner of Customs, which license shall be in force for a period of twelve calendar months from the date thereof. By Bombay Act VI of 1938 there were added to Section 11 of the Tobacco Duty Act the words 'Such license shall be subject to such terms and conditions as may be prescribed by rules made by the Provincial Government in this behalf'. On July 26, 1938, rules were framed by Government, which provided that the license should be in one of the forms A, B, C, D and E annexed thereto and should be subject to the terms and conditions specified therein and those rules. The license in form A, which is the material form in this case, contained condition 15, which reads : ' Except with the permission of the Collector the licensee shall not open the said premises or sell tobacco therein before sunrise or keep the said premises open or sell tobacco therein after 12 midnight (S.T.).' So a license in that form confers a right on the licensee to keep his premises open up to midnight. The numbering of the clauses was subsequently altered by Government Notification, and Clause 15 became Clause 14.

4. On May 13, 1941, these rules were altered by a Government Notification, which provided, so far as material, that in the rules under the Tobacco Duty Act, in condition. 14 in the license form A, after the figures, word, brackets and letters '12 midnight (S.T.)' the following should be inserted, namely, 'Or such hour as may be fixed by or under the provisions of the Bombay shops and Establishments Act, 1939 (Bom. XXIV of 1939), or any other law for the time being in force, whichever is earlier.' That alteration came into force on May 13, 1941, and on August 25, 1941, which was after the date of the alleged offence, the licensing authority took back the license which had been granted to the accused, and annexed to it a slip, stating merely ; ' In the said rules, in condition 14 in the license forms A, B and C, in condition 15 in the license form D and in condition 8 in the license form E, after the figures, word, brackets and letters '12 midnight (S.T.)' the following shall be inserted, namely, 'or such hour as may be fixed by or under the provisions of the Bombay Shops and Establishments Act, 1939 (Bom. XXIV of 1939), or any other law for the time being in force, whichever is earlier.' ' If the annexing of that slip was intended to alter the terms of the license to the accused, which had been granted on January 1, 1941, I can only say that the method adopted is not to be commended. The slip does not purport to alter the license; it only gives notice of an alteration in the terms of the forms of license annexed to the rules. Licensees are entitled to know what their rights and obligations are under any license granted to them.

5. However, the first point, and the main point which arises, is whether Government were entitled, after the issue of a license for the year 1941, to alter the conditions of that license. The license granted to the accused, which is in form A, provides that license is granted to the accused authorising him under and subject to the provisions of the Tobacco Duty (Town of Bombay) Act, 1857, and the rules framed hereunder and on payment of Rs. 25 to sell by retail superior tobacco at the premises mentioned therein.

6. It is argued by the learned Government Pleader that the words 'and the rules framed hereunder' mean the rules framed, or which may be framed during the currency of the license. Well, I do not take that view. The word 'framed' is in the past tense, and, prima facie, 'rules framed' mean rules which have been framed, and the expression does not cover rules not at present in existence, but which may be framed at a future time. If Government intend by a license to reserve power to alter the conditions of the license after it has been granted and paid for, they must take that power in clear language. Here the language, literally construed, does not cover any future alteration. In my opinion, therefore, Government were not entitled, during the currency of the year 1941, to make any alteration in the terms on which the license for that year had been granted.

7. We are not concerned with the year 1942, and, therefore, it is not necessary to consider what the position is under the renewal granted on January 1, 1942. In my opinion, the accused was entitled during the year 1941, and, therefore, on the date of the alleged offence, to keep his premises open until midnight.

8. The learned Government Pleader has also contended that the rules under the Tobacco Duty Act do not constitute an enactment within the meaning of Section 5 of the Shops and Establishments Act, In my opinion, ' enactment' clearly includes rules made under a statutory power vested in Government. There is nothing in that point.

9. The application, therefore, will be allowed, Rule made absolute. Fine, if paid, to be refunded.

Sen, J.

10. I agree.


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