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HIGH COURT OF CALCUTTA
P. B. Mukharji, C. N. Laik
MD. SOLEMAN - Appellant
Versus
STATE OF WEST BENGAL - Respondent
. Of .
Decided On : May 1, 1963
The Calcutta Police Act, 1866 (Police Act) empowers the Commissioner of Police to grant licenses for eating houses for a period not exceeding one year. The appellant, a Pakistani national, applied for a license to run an eating house but was refused by the Commissioner of Police on the grounds that he was not an Indian citizen, did not reside in India, and had a Pakistani passport with a history of travel document issues. The appellant challenged the refusal of the license as a violation of his fundamental rights under Article 19(1)(g) of the Indian Constitution, which guarantees the right to carry on any trade or business. The appellant also argued that he had a legal right to the license under Section 39 of the Police Act and that the refusal of the license was arbitrary and without any reason.
Fact of the Case:
The appellant, a Pakistani national, applied for a license to run an eating house in Calcutta under Section 39 of the Calcutta Police Act, 1866. The Commissioner of Police refused to grant the license on the grounds that the appellant was not an Indian citizen, did not reside in India, and had a Pakistani passport with a history of travel document issues.
Finding of the Court:
The Court held that the appellant did not have a fundamental right to carry on the trade or business of an eating house under Article 19(1)(g) of the Indian Constitution because he was not an Indian citizen. The Court also held that the appellant did not have a legal right to the license under Section 39 of the Police Act because the Commissioner of Police had the discretion to refuse to grant the license and the refusal was not arbitrary or without any reason.
Issues: 1. Whether the appellant had a fundamental right to carry on the trade or business of an eating house under Article 19(1)(g) of the Indian Constitution? 2. Whether the appellant had a legal right to the license under Section 39 of the Calcutta Police Act, 1866? 3. Whether the refusal of the license was arbitrary and without any reason?
Ratio Decidendi: 1. The Court held that the appellant did not have a fundamental right to carry on the trade or business of an eating house under Article 19(1)(g) of the Indian Constitution because he was not an Indian citizen. The Court reasoned that Article 19(1)(g) only guarantees the right to carry on trade or business to Indian citizens and that the appellant, as a Pakistani national, was not an Indian citizen. 2. The Court held that the appellant did not have a legal right to the license under Section 39 of the Police Act because the Commissioner of Police had the discretion to refuse to grant the license and the refusal was not arbitrary or without any reason. The Court reasoned that Section 39 of the Police Act gives the Commissioner of Police the discretion to grant or refuse licenses for eating houses and that the Commissioner of Police had not abused his discretion in refusing to grant the license to the appellant.
Final Decision: The Court dismissed the appeal and upheld the refusal of the license by the Commissioner of Police.
( 1 ) THIS is an appeal from the judgment and order of Mr. Justice Binayak nath Banerjee dismissing the petitioner's application for a writ under Article 226 of the Constitution.
( 2 ) THE petitioner applied to this Court for a Mandamus as well as Certiorari against the respondents-the Commissioner of Police and the State of West Bengal for refusing to grant or renew the petitioner's licence for the year 1962-63 in respect of an eating house established at 98, Lower Chitpore Road, Calcutta which the petitioner claimed to have been running for several years. The establishment is said to serve meal of rice and curry twice daily to its customers. It is also alleged that the petitioner is a teetotaler and a religious minded person, a man of good behaviour and that there has never been any instance of drunkenness or disorder in the eating house establishment. It is said that no liquor or spirit or alcohol is served in the eating house. There is a supporting affidavit in favour of the petitioner from his landlord. The petitioner is a monthly tenant in respect of a room of the said premises at Lower Chitpore Road paying a rent of Rs. 131. 35 np per month.
( 3 ) THE impugned order of the Commissioner of Police is No. 2884 P. S/ps/131 (EH) 62, dated 28th June, 1962 and is in the following terms:"with reference to your application, dated 17. 8. 1962 for fresh issue of police licence by way of renewal for 1962-63 in respect of a Easting house at 98, Lower Chitpore Road, Calcutta, I regret to inform you that the same has been refused. You are, therefore, directed to close down the said establishment immediately and report compliance. "
( 4 ) IT is the order which is challenged by the petitioner in this application. The challenge is made on a number of grounds stated in the petition. in the first place, it is said that the refusal to grant the licence is illegal because the Commissioner of Police passed the order of refusal without giving the petitioner an opportunity of being heard and showing cause against such refusal. In the second place, it is said that the impugned order of the Commissioner is against the statutory provisions and liable to be cancelled. In the third place, it is said that the Commissioner's decision is arbitrary and without any reason. In the fourth place, it is said that the Commissioner did not exercise his discretion reasonably and in accordance with the guiding principle laid down in Section 39 of the Calcutta Police Act. Lastly, the order is challenged on the ground that the Commissioner of Police presumably refused to renew the licence on grounds extraneous to the statute.
( 5 ) THE determination of the questions raised and the decision on this application depend in the first place on the scope and construction of Section 39 of the Calcutta Police Act. The Calcutta Police Act is an ancient Bengal Act of 1886 whose preamble said it was an Act to amend and consolidate the still older provisions of Act XIII of 1856 (for regulating the Police of the towns of Calcutta, Madras and Bombay) and of the Act XLVIII of 1860 (to amend Act XIII of 1856 ). This Act is about to score a century on the statute book but has survived and continues with life and vigour with occasional amendments in the stormy statutory history of the last hundred years in this country. Ancient wisdom appears to have strength to stand the batteries of the modern generation. The Calcutta Police Act, in one sense, is a legal museum and deals with a variety of miscellaneous subjects whose wealth and richness can astonish even the most progressive thinker of this age. Among other things it deals with such an array of subjects as apprehension of reputed thieves, penalty for taking spirits into the barracks or such other sensitive places as vessels of war and jails, for keeping taverns, ale-houses, ganja, chandu or hemp shop, for harbouring deserters from merchant vessels, for stopping music, for owning and keeping gaming houses, fo
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