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Gell Vs. Taja Noora - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtMumbai
Decided On
Judge
Reported in(1904)ILR27Bom199
AppellantGell
RespondentTaja Noora
Excerpt:
license - license of public conveyances--power of commissioner of police to grant licenses--discretion to refuse license--bombay act vi of 1863, section 6--specific relief act (i of 1877), section 45--practice. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the post reserved for member of schedule tribe his caste certificate was invalidated subsequently held, his appointment would not be protected. the observations/directions issued by supreme court in para 36 of judgment in the..........of horses or other animals by which the conveyance shall be drawn, and therefore in granting the license the commissioner mast necessarily consider, with reference to the number of horses to be specified, and the structure of the vehicle, whether it is defective or the, purpose of conveying the public. if the number of horses provided is insufficient for that purpose, it is insufficiently found, and if defective in structure or material, it is otherwise unfit. if the motive power could be ignored, an immoveable machine might be approved. the line must manifestly be drawn before absurdity is reached. and the line has manifestly been drawn by the legislature at insurability for the purpose designated, as to the existence of which, in each particular case, the commissioner is the sole.....
Judgment:

Batty, J.

1. The questions in the appeal are whether the Commissioner of Police, in refusing to grant license to the petitioner under Section 6 of Bombay Act VI of 1863, exercised the discretion vested in him by that section. If he did so, then unquestionably the Courts could not interfere: Attorney General v. Great Western Railway Co. (1877) 4 Ch. D. 735; Reg. v. Collins (1876) 2 Q.B.D. 30; Khando v. Appaji (1877) 2 Bom. 370 and cases therein cited. But the ground of refusal should show that it was a ground to which the power extended: Queen v. Sykes (1875) 1 Q.B.D 52; Ex parte Smith. (1878) 1 Q.B.D. 374 In this case the power given is to refuse a license only when the Commissioner considers that the conveyance for which it is required is insufficiently found or otherwise unfit for the conveyance of the public, or that the applicant is open to certain objections. This clearly calls for the exercise of discretion in each particular case, and 'an exercise of the power in the fetters of self-imposed rules, purporting to bind the autho rity in all cases would not be within the Act': Maxwell on Statutes, page 149 In Wood V. Widnes Corporation (1898) 1 Q.B. 463 the ultra vires action complained of had gone somewhat further and had attempted to enforce by notice the adoption of a particular system, and it was observed that had the notice merely been to the effect that it might be convenient to the public to know that a particular form of construction would satisfy the requirements of the Corporation, there could have been no harm in it. In the present case there is no question raised as to the invalidity of any such order prescribing uniformity, and the question here depends rather on the applicability of the principle laid down by Turner, L.J. in Tinkler v. Wandsworth Board of Works (1858) 2 D And J. 261 that it is no less ultra vires to act in a particular case on such a general and self-imposed rule as to prescribe such a rule for uniform compliance in all cases. The question here, therefore, is not whether such a rule was made, but whe-there it was the reason on which the refusal of the license was based, excluding all consideration as to the individual fitness of each conveyance in question.

2. The adoption of principles approved by, or founded on the experience of, a predecessor in office is not necessarily open to objection, and might be desirable to maintain continuity. But the principles adopted must be strictly limited to the, attainment only of those requirements which the Act enables the authority to enforce, and, when those requirements are satisfied, cannot prescribe variance in the mode of compliance.

3. It has been urged in appeal that the requirements of Section 6 of the Act, (Bombay Act VI of 1863) extend only to the equipments of conveyances and that the words 'otherwise unfit' must be construed as relating only to defects ejusdem generis with the defects in equipment, and that neither of the expressions used would permit any consideration of the motive power to be employed. That the words 'otherwise unfit,' as more general than the preceding words 'insufficiently found,' may be limited thereby, may be conceded. But the phrase 'insufficiently found' constitutes as the ground of objection, not the 'findings' or 'equipments,' but their 'insufficiency,' and therefore limits objections on the ground of unfitness to 'insufficiency,' which is the only mode of unfitness mentioned, and not to the objects in which unfitness may be detected, which would be merely tautological and nugatory. The word 'unfitness' is generic in relation to insufficiency) but has no such connection with equipments. The phrase 'otherwise unfit for the conveyance of the public' is, therefore, susceptible of being construed as 'otherwise defective' for the purpose mentioned.

4. Now a license must under Section 4 specify the number of horses or other animals by which the conveyance shall be drawn, and therefore in granting the license the Commissioner mast necessarily consider, with reference to the number of horses to be specified, and the structure of the vehicle, whether it is defective or the, purpose of conveying the public. If the number of horses provided is insufficient for that purpose, it is insufficiently found, and if defective in structure or material, it is otherwise unfit. If the motive power could be ignored, an immoveable machine might be approved. The line must manifestly be drawn before absurdity is reached. And the line has manifestly been drawn by the Legislature at insurability for the purpose designated, as to the existence of which, in each particular case, the Commissioner is the sole Judge.

5. The only question is, therefore, in my opinion, whether the Commissioner really considered the fitness for the purpose of these particular conveyances, not ignoring the sufficiency of the motive power to be specified in the license as among the accessories to be provided. This is a mere question of fact, and one as to which the Commissioner alone could supply the answer. A bare statement that these particular conveyances had been considered and held by the Commissioner to be unfit for the conveyance of the public on the ground that they were too heavy for the motive power provided, would have sufficed, but the Advocate-General, who appears to support the appeal, is unable to point to any passage in the Commissioner's affidavit which contains such a statement. We have been asked to infer that the Commissioner must have meant that he had so considered the particular vehicles. But the affidavit was formally drawn up when legal advice as to what was required was available, and if the statutory condition had been fulfilled there could have been no difficulty in saying so. Nothing short of a clear statement to that effect ought, I think, to be accepted.

6. Reference has been made to a letter from the Commissioner to the Solicitors for the respondent, in which the Commissioner states that he had that morning seen the conveyances. The reason therein assigned is, however, not that on such inspection the conveyances appeared to the Commissioner insufficiently found or otherwise unfit, but that the petitioner had chosen to build new victorias of a type condemned and that taken on himself to ignore a rule that every other owner of conveyances had submitted to. Whether the conveyances in question were, apart from their resemblance to the condemned type, insufficient or unfit is not distinctly affirmed in this letter. In paragraph 8 of his affidavit the Commissioner says: 'Indeed I have exercised the discretion vested in me and have refused to license as I am of opinion that under the circumstances they are unfit, &c;' The circumstances adverted to are manifestly those stated above and specially in paragraph 8, viz., the victorias were of an obsolete pattern built after the directions issued. So that the ground of refusal would appear to be that the pattern was disapproved and the directions contravened. The directions were, as already observed, ultra vires, and there is no power to refuse a license on the ground that a pattern is obsolete or upon to objections, unless the Commissioner is able to say that in the particular instances before him the Commissioner is satisfied that the defects appearing in the pattern have been reproduced, which render them unfit for the conveyance of the public, The Commissioner may have meant this, but his language is more consistent with the inference that his refusal was based, not on defects noted in the particular victorias in question, bat on defects observed in victorias of a similar type, which may or may not, for all that appears in the affidavit or correspondence, have been avoided in these particular instances. It is quite conceivable that a pattern may be preserved and its defects remedied by the use of other material or otherwise. I am not therefore satisfied that the decision of the lower Court is wrong and think the appeal should be dismissed with costs.

Starling, J.

7. Under Bombay Act VI of 1863, Sections 1 to 6, provision is made for the granting of licenses in respect of land and water conveyances; and by Section 6 a discretion is given be the Commissioner of Police to refuse to grant a license for any land conveyance 'which he may consider to be insufficiently found or otherwise unfit for the conveyance of the public'; but under these provisions, while the Commissioner has a discretion, it is not an absolute one, but one which is to be exercised after the Commissioner has made himself in some way acquainted with the character of the carriage to be licensed, and has considered whether it, as an individual carriage, is fit for the conveyance of the public. In the exercise of this discretion he is not to fetter himself with rules which would prevent him in each case being quite free to consider the merits of each particular carriage.

8. Now, it appears that, on the 13th September, 1899, the Commissioner of Police, Mr. Kennedy, issued an order setting forth the details of construction which he required to be adopted in victorias presented for license, stating that he had had a sample victoria prepared, and that all new victorias must be of that pattern. It is dear, however, that the order is illegal, no authority to make it being given in the Act, If this order had been in a slightly different form, and a note affixed thereto that it would be convenient to the owners of victorias to know that that particular form of victoria would satisfy the requirements of the Commissioner, there would have been no harm in it, but in its present form, in my opinion, it is bad. It is an attempt by the Comissioner to fetter the discretion vested in him by the Act: see Wood v. Widnes Corporation (1898) 1 Q.B. 467. Unauthorized as such an order was, it was still possible that the Acting Commissioner, Mr. Gell, might have exercised his discretion in respect of the victorias in question in this matter independently of this order. If it had appeared by Mr. Gell's affidavit that he had considered these victorias on their own merits, and that on such consideration he was of opinion that they were unfit for the conveyance: of the public, this Court could not have interfered; but on going through Mr. Gell's affidavit and the other affidavits in the case made on his behalf, I find no indication of any such independent consideration. It is quite evident that his subordinates consider that these victorias should be rejected solely because they do not conform to the standard pattern introduced by Mr. Kennedy. Further, Mr. Gell's letter of the 17th March, 1902, states in follows: 'My reasons for refusing to grant these licenses are as follows.' Then follows a statement of Mr. Kennedy's directions about victorias, and the applicant's Solicitor is informed that his client's conveyances were of the condemned type and not in accordance with the sample pattern, and that if he suffers from their rejection it is his own fault. It is quite true that Mr. Gell says he has seen the victorias, but it is quite evident that all he considered in them was whether they were in accordance with the prescribed sample or not. Doubtless Mr. Gell, in the eighth paragraph of his affidavit, says: 'I have exercised the discretion vested in me and have refused to license the new victorias of Taja Noora, as I am of opinion, under the circumstances, they are unfit for the conveyance of the public in Bombay;' but it is only 'under the circumstances,' and it is impossible to separate these few lines from the preceding paragraphs of the affidavit and the letter of the 17th March, 1902, since which time Mr. Gell does not suggest that he has given any fresh and independent consideration to the matter. Under these circumstances, I consider this case is on all fours with that of Wood v. Widnes Corporation (1898) 1 Q.B. 467 and the appeal must be dismissed with costs.


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