1. Two points have been argued in support of this application. The first is that 'sweet and cocoanut oil' is not 'oil' within the meaning of the expression 'oil (other sorts)' used in Schedule M, Part II, of the City of Bombay Municipal Act as now amended. Secondly, it is urged that the storing of the oil in question without a license cannot be said to be contrary to the provision of the Act, as the license was wrongly refused by the Commissioner.
2. As regards the first point it may be mentioned that the oils Stored in this case are vegetable oils: and it may be assumed that the flashing point ' of these oils is much higher than that mentioned in the definition of ' petroleum ' in the Indian Petroleum Act. The argument is that the expression 'oil (other sorts) ' means only those oils which are not less dangerous than ' dangerous petroleum ' as defined in the Indian Petroleum Act. The argument is based upon the fact that the expression is used after ' petroleum ' and ' dangerous petroleum ' and that the quantity allowed to be kept without a license is less than the quantity of dangerous petroleum. I do not think that the argument is supported either by the words used or by the scheme of the Schedule as indicated by the various Articles mentioned in Part II. We must take the words ' oil (other sorts)' to mean oils other than petroleum as defined in the Indian Petroleum Act and ' dangerous petroleum ' as defined in the same Act, Without reading words of limitation, which are not there, it would not be possible to exclude sweet and vegetable oils from the scope of the expression ' oil (other sorts).'
3. Neither the relative position of the expression in the schedule nor the lower limit of the quantity allowed to be kept would be a sufficient ground for importing such a limitation as is suggested on behalf of the applicant, viz., that the expression must mean only those oils whose ' flashing point ' is not higher than the ' flashing point ' of ' dangerous petroleum ' as defined in the Indian Petroleum Act. It seems to me that the learned Magistrate is right in his view that the expression ' oil (other sorts' would include sweet oil, which was stored in this particular case.
4. As regards the second point, Section 391 provides that except under and in conformity with the terms and conditions of the license' granted by the Commissioner, no person shall keep in or upon any premises for any purpose whatever any Articles specified in Part II, Schedule M, in excess of the quantity therein prescribed. In the present case it is an admitted fact that at the time, when the oil in excess of the quantity allowed by law was kept, the petitioner had no license. It is urged, however, that the discretion, which the Commissioner has under Sub-section (3) of Section 394 for granting a license, must be exercised reasonably and that as it has not been exercised reasonably in this case no offence is committed. Assuming, without deciding, that the Commissioner did not exercise his discretion reasonably in refusing to grant the license applied for, I do not see how it could afford any answer to the present charge which is based upon the terms of Section 394 under which the petitioner is prohibited from keeping any articles mentioned in Part II, Schedule M in excess of the quantity allowed, except under and in conformity with the terms and conditions of the license. The argument urged on behalf of the applicant really amounts to this that if a license has been improperly refused it is tantamount to the grant of a license for the purpose of Section 394, and that the oil must be treated as having been kept under the terms of this supposed license to be inferred from the wrongful refusal to grant the license. It may be that the petitioner has a remedy against the Commissioner if he is in a position to establish that the refusal to grant the license is wrongful. We are not concerned with that question in these proceedings. We cannot consider in this case whether the Commissioner ought to grant a license to the petitioner for keeping oil on his premises. 1 am quite clear that even if the refusal on the part of the Commissioner to grant the license be wrongful, it affords no answer to the present charge which is based upon the simple fact that the petitioner has kept certain oils on his premises without a license contrary to the provisions of Section 394 which is an act punishable under Section 471 of the City of Bombay Municipal Act.
5. I would discharge the rule.
6. I agree. In my opinion the words ' Oil (other sorts) ' used by the Legislature in Part II, Schedule M, of the City of Bombay Municipal Act indicate oil of a description different from that defined by the two preceding entries. Excepting so far as the word ' oil is limited by these two preceding entries, it is perfectly general in its scope and must necessarily include oil of any other kind. As it is conceded here that the applicant has stored oil in excess of the quantity of 15 gallons permitted by Section 394 read with Schedule M, he has, in my opinion, been rightly convicted of an offence under that section.
7. As regards the second argument advanced by Mr. Baptista on behalf of the applicant I have only to say this much that though I might be perfectly willing, if the matter were properly before me, to accede to the general principle for which he contends, that is to say, that every public officer on whom the Legislature has imposed the duty of granting a license must exercise the discretion given to him in a reasonable manner, still I entirely fail to see how that question arises for our decision here. We are sitting here as a criminal Court and I am entirely at one with my learned brother in holding that a wrongful refusal of a license cannot be pleaded as a defence for doing an act for the doing of which such license is necessary. In other words, it cannot be said that a license which is wrongfully refused is tantamount to the license which ought to have been given but for such wrongful refusal. I agree, therefore, in discharging the rule.