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HIGH COURT OF CALCUTTA
D. N. Sinha
KISHAN CHAND ARORA - Appellant
Versus
COMMISSIONER OF POLICE - Respondent
Matter 210 Of 1957
Decided On : AUGUST 7, 1958
CALCUTTA POLICE ACT - SECTION 39 - LICENSE FOR EATING HOUSE - DISCRETION OF COMMISSIONER OF POLICE - JUDICIAL REVIEW - REASONABLE GROUNDS FOR REFUSAL - COLLUSIVE AGREEMENT - VIOLATION OF LICENSE CONDITIONS - RUNNING EATING HOUSE WITHOUT LICENSE - DE FACTO AND DE JURE KEEPER - PUBLIC SAFETY, PEACE AND TRANQUILLITY.
Fact of the Case:
Petitioner, a contractor, entered into an agreement with the licensee of an eating house, Bhowmick, to manage and conduct the business. The agreement was construed as a leasing out or hiring of the business in violation of the license condition. Petitioner applied for a license in his own name, claiming to be a tenant under the owner of the premises. The Commissioner of Police refused to grant the license due to petitioner's failure to establish a de jure right to the premises, violation of license conditions, and running the eating house without a license.
Finding of the Court:
The court held that the Commissioner of Police had exercised his discretion reasonably and bona fide in refusing to grant the license. The petitioner failed to show a de jure right to the premises, as his claim of tenancy was based on a collusive agreement intended to circumvent the Rent Control Acts. The petitioner's open violation of the Act by running the eating house without a license since April 1954 was also considered a valid ground for refusal.
Issues: 1. Whether the Commissioner of Police had exercised his discretion reasonably and bona fide in refusing to grant the license to the petitioner. 2. Whether the petitioner had a de jure right to the premises, considering the collusive nature of the agreement and the ongoing litigation regarding tenancy. 3. Whether the petitioner's violation of the Act by running the eating house without a license was a valid ground for refusal.
Ratio Decidendi: 1. The discretion granted to the Commissioner of Police under Section 39 of the Calcutta Police Act is not absolute and must be exercised reasonably and bona fide, taking into account the underlying policy of the Act and the object to be accomplished. 2. A person applying for a license under Section 39 must be a 'keeper' of the eating house not only de facto but also de jure. A de facto keeper may be proceeded against for contravention of the Act, but a license can only be granted to a de jure keeper. 3. Running an eating house without a license, in open defiance of the Act, is a valid ground for refusing to grant a license, as it undermines the Commissioner's ability to exercise control over the keeper and maintain public safety, peace, and tranquillity.
Final Decision: The court dismissed the petitioner's application for a writ of mandamus compelling the Commissioner of Police to grant him a license. The court found that the Commissioner had exercised his discretion reasonably and bona fide, and that the petitioner had failed to establish a de jure right to the premises or a valid excuse for running the eating house without a license.
( 1 ) THE facts of this application are briefly as follows: One Prafulla Kumar Mitra is tenant of premises No. 2, Chowringhee Road, Calcutta, wherein he runs a Hotel called the 'bristol Hotel'. In October 1953, he sub-let the ground floor of the said premises to the Respondent No. 2 Haripada Bhowmick as a monthly tenant. The said Haripada Bhowmick was carrying on the business of an eating house therein, known as the 'kalpataru Cafeteria. ' The running of such an eating house requires the grant of a license by the Commissioner of Police, Calcutta under Section 39 of the Calcutta Police Act 1866 read with Section 6 (2) of Bengal Act V of 1909 and Section 3 of Act VII of 1912. Bhowmick had taken out such a license. Section 39 of the Calcutta Police Act 1866 (hereinafter referred to as the 'act') runs as follows:"the Commissioner of Police may at his discretion, from time to time, grant licenses to the keepers of such houses or places of public resort and entertainment us aforesaid for which no license as is specified in the Bengal Excise Act 1909 is required, upon such conditions, to be inserted in every such license as he, with the sanction of the said State Government from time to time shall order, for securing the good behaviour of the keepers of the said houses or places of public resort, or entertainment, and the prevention of drunkenness and disorder among the persons frequenting or using the same; and the said licenses may be granted by the Commissioner for any time not exceeding one year. "under Section 35 of the said Act whoever, in the town of Calcutta keeps any eating house where provisions or refreshments are sold or consumed, without a license, is liable on summary conviction before a Magistrate to a fine not exceeding fifty rupees for every day that the eating house is kept open without such a license. As I have stated above, Bhowmick took out a license in respect of the Cafeteria, which license was being renewed from year to year. The license was granted, subject to certain terms and conditions. Condition No. 5 of the license, runs as follows:"that the licensee shall not at any time during the currency of the license sublet, hire out or transfer his business to any other person or persons without the written sanction of the Commissioner of Police. "on 11-8-1954 Bhowmick entered into an agreement with the petitioner, a copy whereof is annexed to the petition and marked 'a'. In the agreement, Bhowmick is described as the 'principal' and the petitioner is described as the 'contractor. ' It was agreed that the principal was to employ the contractor to manage and conduct his business known as 'kalpataru Cafetaria,' Although, this is how the agreement is framed, the result is as follows: (a) The business, with its goodwill and visible assets is taken over, by the contractor and run by him. (b) From the date of taking over, the principal has no further hand in the running of the business except paying the rent of Rs. 1,000/- per month to the landlord and renewing his license. (c) The contractor was to pay Rs. 110/- per day to the principal irrespective of whether the business earned any profit or not. (d) The contractor was to deposit a sum of Rs. 30,000/- as security for discharging his liability under the agreement. (e) The agreement was to subsist for a period of 5 years with a right of renewal for a like period. (f) The contractor had the right to terminate the contract upon six months notice and payment of all outstanding dues of the principal. (g) The principal had the right to terminate the contract upon 15 days notice, if the contractor failed to make the payment agreed upon or committed a breach of contract. On the same day, a tripartite agreement was entered into between the petitioner, Bhowmick and Prafulla Kumar Mitra whereby the sum of Rupees 30,000/- was to be deposited by the petitioner with Mitra, who was to guarantee the performance of the contract by Bhowmick. Mitra further agreed that i
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