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Pannalal Gupta Vs. the Commissioner of Police and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberMatter No. 735 of 1976
Judge
Reported inAIR1977Cal382
ActsConstitution of India - Article 226; ;Calcutta Police Act - Section 39
AppellantPannalal Gupta
RespondentThe Commissioner of Police and ors.
Cases ReferredKishan Chand Arora v. Commissioner of Police
Excerpt:
- .....of police acting on behalf of the commissioner of police, calcutta, has refused to grant police licence under section 39 of the police act, 1866, in respect of a boarding house belonging to the petitioner and situated at 4, sudder street, calcutta. 2. in the petition the petitioner has specifically challenged the order as being arbitrary and has also stated that the respondent has failed to apply his mind on the question of grant of licence of the petitioner in the application. 3. in spite of such specific challenges being thrown, the affidavit-in-opposition filed by the deputy commissioner of police, who had passed the impugned order, does not disclose any reason which impelled him to refuse the licence in the instant case. there is in the affidavit a statement in which he.....
Judgment:
ORDER

T.K. Basu, J.

1. In this application the petitioner Pannalal Gupta challenges an order whereby the Deputy Commissioner of Police acting on behalf of the Commissioner of Police, Calcutta, has refused to grant police licence under Section 39 of the Police Act, 1866, in respect of a boarding house belonging to the petitioner and situated at 4, Sudder Street, Calcutta.

2. In the petition the petitioner has specifically challenged the order as being arbitrary and has also stated that the respondent has failed to apply his mind on the question of grant of licence of the petitioner in the application.

3. In spite of such specific challenges being thrown, the affidavit-in-opposition filed by the Deputy Commissioner of Police, who had passed the impugned order, does not disclose any reason which impelled him to refuse the licence in the instant case. There is in the affidavit a statement in which he craves reference to certain records. No records have been however produced before me at the time of hearing of this application. Therefore, in my view, the challenge thrown by the petitioner has not been answered by the respondent either on affidavit or otherwise.

4. The learned Advocate appearing on behalf of the petitioner draws my attention to a decision of the Supreme Court in the case of Kishan Chand Arora v. Commissioner of Police, Calcutta reported in 0043/1960 : [1961]3SCR135 , My attention has been drawn to a portion of paragraph 5 of the judgment which runs as follows: --

'Therefore, the fact that no hearing is required to be given by the Commissioner before he decides to grant or refuse a licence would not make the provision as to licensing in the circumstances of this case unreasonable restrictions on the fundamental right of carrying on a trade. For the same reasons it cannot be said that because the reasons for refusal are not communicated to the person applying that would make the licensing provision unconstitutional. The person applying knows that under the law there are three conditions (already set out above) which the Commissioner has to consider in granting or refusing the licence. If he thinks that he fulfils the three conditions and the Commissioner has acted unreasonably in rejecting his application he is not without a remedy; he can apply to the High Court under Article 226 and compel the Commissioner to disclose the reasons for refusal befort the Court and if those reasons are extraneous or are not germane to the three matters arising under Section 39, the High Court will compel the Commissioner to act within the scope of Section 39.'

5. In my view, in the facts of the instant case it is exactly what the peti-tioner has done. He has thrown a challenge that the Commissioner has acted unreasonably and arbitrarily and the challenge has not bren properly answered with relevant reasons by the Commissioner either on affidavit or otherwise.

6. In that view of the matter, I am of the opinion that the impugned order should be quashed and the matter be sent back to the Commissioner for reconsideration in accordance with the law, I, therefore, quash the impugned order dated the 16th July, 1976, and send the matter back to the appropriate respondents for reconsideration. In reconsidering the petitioner's application the appropriate respondents are directed to give him a hearing before passing the order. I am giving this direction in the interest of justice although strictly speaking. a hearing may not be required under the law, I make it clear, however, that after the hearing of the petitioner if the appropriate respondent is satisfied that there are cogent reasons for refusing the licence as prayed for, he will be at liberty to do so. ,

7. The Rule is disposed of on the above terms. There will be no order as to costs.


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