judgement:
Civil Appeal No. 93 of 1951.
Appeal from the Judgment and Decree of the Bombay High Court (Chagla C.J. and Bhagwati J.) dated 6th Septem ber, 1949, in Appeal No. 16 of 1949, arising out of the Judgment dated ' 2nd February, 1949, of a Single Judge of the same High Court (Tendolkar J .) in Miscellaneous Application No. 223 of 1948.
The facts of the case and arguments of counsel are stated fully in the judgment.
C.K. Daphtary, Solicitor General for Indict (G. N. Joshi, with him)for the appellant.
N.C. Chatterjee (R. M. Hajarnavis, with him) for the respondent.
November 23.
The Judgment of the Court was delivered by BOSE J.
The question here is whether an order should issue under section 45 of the Specific Relief Act against the appellant, who is the Commissioner of Police, Bombay.
The respondent, Gordhandas Bhanji, wanted to build a cinema house on a plot of land at Andheri in the year 1945.
At that date Andheri did not form a part of Bombay and under the.
rules then in force it was necessary to obtain permis sion from the District Magistrate of that area in the form of a No Objection Certificate.
Accordingly, the respondent made the necessary application on the 12th of September, 1945.
Permission.was refused on the 30th of September, 1945, on the ground that the public of the locality objected and also because there was already one cinema theatre at Andheri and so it was not necessary to have another "for the present.
" On the 1st of October, 1945, Andheri became a part of Greater Bombay and the jurisdiction to grant or refuse a license was transferred to the Commissioner of Police, Bombay.
The respondent accordingly put in a second applica tion on the 21st of November, 1945, and 138 addressed it to the Commissioner of Police.
After some correspondence this was also turned down on the 19th of March, 1946, "owing to public opposition.
" Nothing daunted, the respondent applied again on the 1st of April, 1946, and asked for a "reopening" of his case.
One of the grounds given was that "The Government of Bombay are giving very careful atten tion and affording all reasonable facilities to develop the Greater Bombay into a model one.
A modern cinema, there fore, of the type I propose to build is indispensable.
" In view of that, not unnaturally, the Commissioner of Police appears to have consulted the Government of Bombay, for he wrote to the respondent on the 25th of April, 1946, saying that "the whole question of considering and approving sites for cinemas is under the consideration of the Government of Bombay," and he promised that "when a decision is arrived at, your application will be examined.
" It seems that somewhere about this time a Cinema Adviso ry Committee was constituted by Government.
We have not been enlightened about the scope and extent of its powers but it is evident from its nomenclature that its functions were purely advisory.
Five members of this Committee appear to have inspected the site on the 12th of May, 1947, and after prolonged discussion they reached the conclusion that "in view of the location of four schools near by the site, this site is unsuitable for the purpose required and therefore it should be rejected.
" A note was drawn up to that effect and the matter was ordered to be placed on the agenda of the next meeting of the Committee "for final decision." This final decision has not been placed on record but the Commissioner of Police tells us in his affidavit that within a month the Committee advised that the application should be granted.
Accordingly, the Commissioner accorded the necessary permission by his 139 letter dated the 14/16th of July, 1947.
There is no refer ence here to the recommendations of the Advisory co Commit tee and.
though they may have weighed, and rightly, with the Commissioner there is nothing on the face of the letter to indicate that the decision was not that of the Commis sioner himself given in bona fide exercise of the discretion vested in him.
We refer to this because the Commissioner has stated in his affidavit that I was fully satisfied that the petitioner 's application should be refused, but that it was only at the instance of the Cinema Advisory Committee that I granted the said per mission on the 14th of July, 1947.
" That, however, would not affect the validity of his order.
There is no suggestion that his will was overborne or that there was dishonesty or fraud in what he did.
In the absence of that, he was entitled to take into consideration the advice thus tendered to him by a public body set up for this express purpose, and he was entitled in the bona fide exercise of his discretion to accept that advice and act upon it even though he would have acted differently if this important factor had not been present to his mind when he reached a decision.
The sanction accorded on the 16th of July, 1947, was therefore a good and valid sanction.
This sanction occasioned representations to Government presumably by the "public" who were opposing the scheme.
Anyway, the Commissioner wrote to the respondent on the 19/20th September, 1947, and direct him "not to proceed with the construction of the cinema pending Government orders." Shortly after, on the 27/30th September, 1947, the Commissioner sent the respondent the following communica tion: "I am directed by Government to inform you that the permission to erect a cinema at the above site granted to you under this office letter. dated the 16th July, 1947, is hereby cancelled.
" 140 It will be necessary at this stage to determine whether this was a cancellation by the Commissioner of on his own authority acting in the exercise of some power which was either vested in him or of which he bona fide believed himself to be possessed, or whether he merely acted as a post office in forwarding orders issued by some other au thority.
We have no hesitation in reaching the conclusion that this is not an order of cancellation by the Commission er but merely intimation by him of an order passed and made by another authority, namely the Government of Bombay.
An attempt was made by referring to the Commissioner 's affidavit to show that this was really an order of cancella tion made by him and that the order was his.order and not that of Government.
We are clear that public orders, public ly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do.
Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to hum they are addressed and must be construed objectively with reference to the language used in the order itself.
Turning now to the language used, we are clear that by no stretch of imagination can this be construed to be an order which in effect says : "I, so and so, by virtue of the authority vested in me, do hereby order and direct this and that.
" If the Commissioner of Police had the power to cancel the license already grant ed and was the proper authority to make the order, it was incumbent on him to say so in express and direct terms.
Public authorities cannot play fast and loose with the powers vested in them, and persons to whose detriment orders are made are entitled to know with exactness and precision what they are expected to do or forbear from doing and exactly what authority is making the order.
141 But if there is ambiguity or doubt in the language used here a glance at the surrounding circumstances will dispel it.
What was the position at the time ? Permission was first refused and then granted, then suspended and the respondent was told to await, not the Commissioner 's orders, but those of Government.
Then comes the letter in question which conveys those orders.
So also there is the conduct of the Commissioner not long after.
The respondent 's solicitors placed the same construction on the order of the 30th Sep tember as we do and asked the Commissioner how Government could interfere with a permission granted by him.
They said on the 18th November 1947 : "Our client has been advised that the authority to grant permission is in you acting in consultation with the Adviso ry Board.
It is difficult to understand how the Government can interfere with the permission granted by you." The Commissioner 's reply dated 3/4th December, 1947, was: "I write to inform you that permission granted to your client was cancelled under the orders of the Government who may be approached. " We are clear that this roundabout language would not have been used if the order of cancellation had been that of the Commissioner.
We do not mean to suggest that it would have been improper for him to take into consideration the views and wishes of Government provided he did not surrender his own judgment and provided he made the order, but we hold on the material before us that the order of cancellation came from Government and that the Commissioner acted only as a transmitting agent.
It is next necessary to determine whether the Government of Bombay had the power to cancel a license once issued.
That depends on a consideration of the Rules.
They are framed under section 22 (1) (f) (i) (g) and (h) of the City of Bombay Police Act, 1902.
They regulate the "licensing, controlling, keeping and regulation" of places.
of public amusement in 19 142 the City of.
Bombay.
Rule 8 applies to any person desirous of "erecting"a cinema, building.
There is, in our opinion, a distinction of principles between the erection and use of buildings for purely private and residential purposes and those intended to be used as places of public amusement.
Considerations arise regarding the latter which would not be applicable to the former, among them the right to withdraw or modify a license once issued.
Ordinarily, a man can do what he likes with his property subject of course to specific laws regulating his use of it, there fore in the case of a private residence he would in a general way have a right to build if he complies with all the rules and regulations and restrictions which may be imposed by law, and if permission is withheld when all the conditions are fulfilled he would normally have a right to demand that the necessary permission be given.
But that sort of consideration does not apply to a place intend ed to be used for public performances.
There, questions affecting the safety, convenience, morality and welfare of the public must be given overriding precedence and it is.usual in these cases, on grounds of public concern, to vest some public authority with a discretion to grant or refuse such licences and to modify or cancel ones already granted.
It is necessary to bear this distinction in mind when construing the present rules. 'Therefore, when Rule 8 speaks of "erecting" such premises, it must be borne in mind that the rule is not a mere building rule affecting the erection of a building in the abstract but applies to a building intended to be used for a particular purpose and the license applied for is not merely for permission to build but also to use structure, when erected, for a partic ular purpose affecting the public at large and the residents of the locality in particular.
Rule 8 falls under Part II which is headed : "Preliminaries to obtaining license for premises.
" These preliminaries include (a) the making of an application in writing to the Commis sioner of Police, and 143 (b)the giving of a certain notice as a preliminary to the application.
This notice has to be in the form prescribed in Schedule A and has to be maintained on a certain board "until the application has been dealt with by the Com missioner" and the rule prescribes that " no application shall be considered before the expira tion of one fortnight after the receipt by the Commissioner of a copy of the notice etc.
" Schedule A shows 'that the object of the notice is to enable the Commissioner to receive objections to the pro posed erection.
The rest of the rules in Part II specify the matters which the application shall contain and the documents which must accompany it including plans and specifications of the proposed building.
Part III prescribes various structural details with which the building must conform.
They include fire resist ing material for the roof, stage staircases and dressing rooms of a certain type, seating arrangements, Corridors, exits and so forth.
This part of the rules would apply to a building already in existence but not yet licensed for public performance as well as to one which has yet to be erected.
Part IV relates to the "Use of cinematograph Apparatus and other optical Lan terns.
" The rules prescribed there are mainly for purposes of health and safety.
Parts V and VI do not concern us.
They prescribe spe cial rules for Circuses and for exhibitions of Boxing and Wrestling.
Then comes Part VII which is material for present pur poses.
It is headed "Licenses".
Rule 237 prescribes that "The person being the owner, tenant or occupier of such premises and the person who proposes to give any public performance, entertainment or exhibition on 144 such premises shall each take out a license under these rules" Then follows a sub heading "Licenses for Premises" and under that come Rules 238 to 257.
Rule 23S prescribes that : "No such premises shall be opened, or kept open for use as a place of public amusement unless the person being the owner, tenant or occupier thereof shall have obtained from the Commissioner the necessary license.
" Rule 248 invests the Commissioner with "absolute discretion in refusing any license etc. if such place appears to him likely to cause obstruction, inconvenience, annoyance, risk, danger or damage to resi dents or passers by in the vicinity of such premises.
" Then follows Rule 250 which is crucial here.
It says : "The commissioner shall have power in his absolute dis cretion at any time to cancel or suspend any license granted under these Rules. " After Rule 257 comes a second sub heading entitled "Per formance License" and Rules 258 to 28:3 set out the require ments relating to the holding of performances as distinct from the requirements relating to the building or premises in or on which they are to be held.
The rest of the rules do not concern us.
It is clear to us from a perusal of these rules that the only person vested with authority to grant or refuse a license for the erection of a building to be used for pur poses of public amusement is the Commissioner of Police.
It is also clear that under Rule 250 he has been vested with the absolute discretion at any time to cancel or suspend any license which has been granted under the rules.
But the power to do so is vested in him and not in the State Govern ment and can only be exercised by him at his discretion.
No other person or authority can do it.
It was argued that Rule 250 did not apply to licenses to erect buildings but only referred to other matters 145 such as their maintenance and the kind of performances to be given in them.
We are unable to agree.
The preamble to the rules states that the Rules are for the "licensing, controlling, keeping and regulation" of places of public amusement in the City Bombay.
Part II which deals with the erection cinema houses nowhere autho rises the issue of a license but it does indicate that a license is necessary.
For instance, the heading states that the rules which follow in Part II are only the "prelimi naries to obtaining license for premises" and Rule 21 sets out that "Before a license is granted. for such premises" certain certificates must be produced.
All of which indi cates that a license is necessary.
But the only provision the actual issue of the license is in Part VII, and Rules 237 and 238 in that part require the owner, tenant or occu pier of premises intended to be used for a cinema house for public amusement to take out a license as well as for the person who proposes to give a public performance on such premises.
In our opinion, Rule 250 does authorise the can cellation of a license already issued but the only person who can effect the cancellation is the Commissioner of Police.
It was contended that this would work great hardship in some cases and that if money had already been expended on the building an estoppel at least would arise.
No question of estoppel has been raised here, so that is not a question we need consider nor need we answer the converse question whether an estoppel would hold good in the face of a law enacted for the public good on grounds of public policy; also whether there can be an estoppel when a person builds knowing the risk he runs of cancellation at any time under Rule 2S0.
The next question is whether an order in the nature of a mandamus can issue under section 45 of the Specific Relief Act.
It is necessary to emphasise that the present case does not fall either under article 32 (2) or article 226(1) of the Constitution.
We are confined here to section 45 of the Specific Relief Act.
146 The jurisdiction,conferred by.
that section is very spe cial in kind and is strictly limited in extent though the am but of the powers exercisable within those limited is wide.
Among the limitations imposed are the following: First, the order can only direct some specific act to be done or some specific ,act to be forborne.
It is not possible therefore to give a mere declaratory relief as under section 42.
Next, because of the proviso, the order can only be made if the doing or the for bearing is clearly recumbent upon the authority concerned under any law for the time being in force.
And thirdly, there must be no other specific and adequate legal remedies available to the applicant.
Now applying these rules to the present case, the appli cant must show what specific act he wants to.
be done or to be forborne.
That can only be gathered from the petition.
The reliefs specifically sought there are (1) an order directing the Commissioner to withdraw the cancellation and/or (2) directing him to grant permission for the erec tion of a cinema.
Taking the second.
first, it is evident from the rules that there is no specific law which requires the Commission er to grant a license on the fulfillment by the petitioner of certain conditions.
He is vested with a discretion to grant or to refuse a license and all that the law requires is that he should exercise that discretion in good faith.
But that he has done.
In the exercise of that discretion he granted a license and that license still holds good because, on the view we have taken, there has been no valid order of cancellation.
Accordingly, this relief cannot be granted.
Turning next to the first relief, that cannot be grant ed in the form in which it is sought because the rules vest the Commissioner with an absolute discretion to cancel at any time a license once granted.
There is no specific law which compels him to forbear from canceling a license once granted in fact that would be an impossibility; still less is there any law which compels him to withdraw a cancella tion already effected: that would fetter the absolute dis cretion 147 vested in him by Rule 250.
Therefore, this relief cannot be granted in the way it is asked for.
But we are of opinion that we are free to grant the respondent a modification of that relief in a different form.
It is to be observed that the petitioner did ask that he be granted "such further and other relief as the nature and circumstances of the case may require.
" We have held that the Commissioner did not in fact exercise his discretion in this case and did not cancel the license he granted.
He merely forwarded to the respondent an order of cancellation which another authority had pur ported to pass.
It is evident from these facts that the Commissioner had before him objections which called for the exercise of the discretion regarding cancellation specifi cally vested in him by Rule 250.
He was therefore bound to exercise it and bring to bear on the matter his own inde pendent and unfettered judgment and decide for himself whether to cancel the license or reject the objections.
That duty he can now be ordered to perform under section 45.
It was objected as to this that there is no specific law which compels him to exercise the discretion.
Rule 250 merely vests a discretion in him but does not require him to exercise it.
That is easily met by the observations of Earl Cairns L.C. in the House of Lords in Julius vs Lord Bishop of Oxford(i), observations which have our full and respect ful concurrence : "There may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so.
" The discretion vested in the Commissioner of Police under Rule 250 has been conferred upon him for public rea sons involving the convenience, safety, (1) 5 App.
214 at 222, 223.
148 morality and welfare.
of the public at large.
An ena bling power of this kind conferred for public reasons and for the public benefit is, in our opinion, coupled with a duty to exercise it when the circumstances so demand.
It is a duty which cannot be shirked or shelved nor can it be evaded; performance of it can be compelled under section 45.
It was then objected that performance cannot be com pelled for another reason.
Section 45, it was said, is limited to duties which must be performed or forborne "under any law for the time being in force," and it was argued that this means statute law.
There is authority for this point of view, but we see no reason for limiting the clear words of the section or for reading into it matter which is not there.
The provision is a beneficent one to compel the performance of public duties by public officers.
It is intended to open up a swift and summary remedy to the subject against, on the one hand, certain kinds of abuse or excesses on the part of public officers or, on the other, of laziness, incompetence, inertia or inaction on their part.
We can see no reason why statutory duties should be placed on any different plane from other duties enjoined by any other kind of law, especially as some.
statutory duties are slight or trivial when compared to certain other kinds of duties which are not referable to a statutory provision.
In our opinion, the words "any law" are wide enough to embrace all kinds of law and we so hold.
The only other point we need consider is whether "the applicant has no other specific and adequate legal remedy.
" It was contended on behalf of the appellant that the re spondent could have ignored the so called order of cancella tion if he considered it was of no effect; alternatively, he had the specific legal remedy of suing for an injunction which could have accorded him adequate relief.
In our opinion.
the first is neither a specific nor an adequate legal remedy.
Here is an order purporting to 149 emanate from the State Government itself served on the respondent by a responsible public officer.
Whether, the order is his order or an order of the State Government it is obviously one which primarily compels obedience as a matter of prudence and precaution.
It may in the end prove to be ineffective, as has happened in this case, but it would be wrong to expect a person on whom it is served to ignore it at his peril however much he may be legally entitled to do so.
Also, the very fact that this order was served on him, especially when it followed on the Commissioner 's letter of the 19/20th September, 1947, indicated that objections of a serious nature which it was the Commissioner 's duty to consider had been raised.
The respondent had a right to expect the Commissioner to make up his mind and reach a decision, otherwise it left him in a state of uncertainty.
If he commenced to build, the Commissioner would have a right to take action under Rule 250 and tell him to stop, and at best that would involve the respondent in a long and expensive litigation which he might or might not win.
We are clear that he had a right to be told definitely by the proper legal authority exactly what he might or might not do, so that he could adjust his affairs.
We are clear that the dangerous course of ignoring an official order at one 's peril is not the kind of adequate and specific legal remedy contemplated by section 45.
Next, as regards the relief of injunction.
We do not say that would not be a proper and adequate remedy in certain cases.
Each case must necessarily depend on its own facts and we have no intention of laying down any hard and fast rule.
But we do not think that would be adequate to meet the exigencies of the present case.
In the first place, a suit, if lodged, would require notice under section 80 of the Civil Procedure Code as it would be a suit against a public officer in his official capacity, and that would at once import delay; so would the long drawn out procedure of civil litigation with its concomitant appeals.
In a commer cial undertaking of the kind we have here, inordinate delay might well spell ruin to the project.
Large sums of money have necessarily to be tied up 20 150 so long as the matter remains in abeyance, the prices of land and materials are constantly rising and there is in the vicinity a rival theater which is all the while acquiring reputation and goodwill, two undefinable but important considerations in commercial undertakings.
It is therefore desirable that questions of the kind we have here should be decided as soon as may be It may be that any one of those considerations taken separately might not be enough to fulfil this requirement of section 45, but considered cumu latively we are of opinion that the applicant has no other adequate remedy in tiffs case.
In any event, there are many cases of a similar nature in which section 45 has been applied without objection despite the fact that an injunc tion could have been sought.
We need only cite a decision of the Judicial Committee of the Privy Council (A1cock, Ashdown & Co. vs Chief Revenue Authority, Bombay) (1) where Lord Phillimore says at page 233 : "To argue that if the Legislature says that a public officer, even a revenue officer, shall do a thing, and he without cause or justification refuses to do that thing, yet the Specific Relief Act would not be applicable, and there would be no power in the Court to compel him to give relief to the subject, is to state a proposition to which their Lordships must refuse assent." Their Lordships then issued an order under section 45.
Lastly, it was urged that the petition is incompetent because the provisions of section 46 of the Specific Relief Act have not been complied with, namely, the petitioner has not shown that he made a demand for justice and that it was denied.
The demand and denial which section 46 requires are matters of substance and not of form.
In our opinion, there was a substantial demand here and it is clear that there was a denial.
Soon after the order of cancellation was intimat ed to the petitioner he instructed his solicitors to write to the Commissioner and enquire (1) 50 I.A. 227 at 233.
151 why the permission granted had been so arbitrarily can celled.
This was on the 18th November, 1947.
The reply dated 3/4th December, 1947, was that the cancellation was under the orders of Government and that they should be approached in the matter.
Government was approached.
The petitioner 's solicitors wrote to the Home Minister on the 9th December, 1947, and said : "Our client has not been informed of any reasons which had moved the Government to direct the cancellation of the permission.
Our client was really entitled to be heard in the matter.
Our client desires to present his case before you and he shall feel obliged if you give him an interview. " The Secretary to the Home Department replied on the 12th of January, 1948, that the Commissioner was directed to cancel the permission in view of numerous protests which Government received.
This was replied to on the 16th of February, 1948, and the petitioner 's solicitors said : "Our client feels that he has not been treated fairly and that justice has been denied to him." The only reply to this was : "I am directed to inform you that Government does not wish to add anything to the reply already given to you." The correspondence read as a whole contains a clear demand for justice and a denial.
It is true the actual demand was not made to the Commissioner nor was the denial by him but he clearly washed his hands of the matter by his letter of the 3rd/4th December, 1947, and referred the petitioner to Government under whose orders he said he was acting.
The demand made to Government and the denial by them were therefore in substance a demand made to the Commission er and a denial by him.
In any event, an evasion or shelving,of a demand for justice is sufficient to operate as a denial within the meaning of section 46.
In England the refusal need not be in so many words All that is necessary is to 152 show that the party complained of has distinctly deter mined not to do what.
is demanded (See 9 Halsbuy 's Laws of Eng land, Hailsham edition, page 772).
And in the United States of America a demand is not required "where it is manifest it would be but an idle ceremony" (See Ferris on Extraordinary Legal Remedies, page 281).
The law in India is not differ ent except that there must be a demand and a denial in substance though neither need be made in so many words The requirements of section 46 were therefore fulfilled.
The result is that in substance" the appeal fails though it will be necessary to effect a modification of the High Court 's order.
The High Court directed the Commissioner of police to "Withdraw the order of cancellation passed by him.
" We have held that he did not make the order and that even if he did, a direction of that sort would not lie because of the discretion vested in him by Rule 250.
The following will accordingly be substituted for what the High Court has ordered: The Commissioner of Police be directed to consider the requests made to him for cancellation of the license sanc tioned by his letter dated the 14/16th of July, 1947, and, after weighing all the different aspects of the matter, and after bringing to bear his own unlettered judgment on the subject, himself to issue a definite and unambiguous order either canceling or refusing to cancel the said license in the exercise of the absolute discretion vested in him by Rule 250 of the Rules for Licensing and Controlling Theaters and Other Places of Public Amusement in Bombay City, 1914.
As the appeal fails except for the slight modification indicated above, the appellant will pay the respondent 's costs.
Decree modified.

summary:
An application by the respondent for permission to build a cinema on a site within the City of Bombay was rejected by the Commissioner of Police, Bombay.
The respondent applied for reconsideration of his application and the Commissioner, acting on the advice of the Cinema Advisory Committee, granted the application on the 16th July, 1947, though he indicated in an affidavit flied later that but for this advice he would have refused the application again.
Subse quently, under instructions from Government the Commissioner sent the following communication to the respondent: "I am directed by Government to inform you that the permission to erect a cinema at the above site granted to you under the office letter dated 16th July, 1947, is hereby canceled.
" The respondent applied to the High Court of Bombay for an order under section 45 of the Specific Relief Act directing the Commissioner of Police, Bombay, to withdraw the cancellation and to grant permission for the erection of the cinema, and the High Court directed the Commissioner of Police "to withdraw the order of cancellation passed by him." The Commissioner of Police appealed to the Supreme Court.
Held, (i) that there was nothing in the letter dated 16th July, 1947, to indicate that the decision was not that of the Commissioner himself given in the bona fide exercise of the discretion vested in him.
The sanction was not conse quently invalid merely because the Commissioner decided to accept the advice of the Cinema Advisory Committee even though without that advice he would not have granted the permission.
(ii) There was no valid cancellation of the license because (a), the order of cancellation communicated to the respondent 'was one made by the Government of Bombay and not by the Commissioner on his own authority;he acted in the matter only as a transmitting agent; (b), under the rules framed under 136 section 22 (1) (f), (1) (g) and (n) of the City of Bombay Police Act 1902 the Government of Bombay had no power to cancel of license once issued.
The only person vested with authority to grant or refuse a license for the erection of a building to be used for purposes of public amusement is the Commissioner of Police.
(iii) The relief sought by the respondent of an injunction to direct the Commissioner of Police to grant permission for the erection of a cinema could not be granted because he had already granted permission and there was no valid order of cancellation.
(iv) The other relief asking for an injunction directing the commissioner to withdraw the cancellation also could not be granted because Rule 250 vests the Commissioner with an absolute discretion in the matter.
(v) Though there was no specific provision of law compel ling the Commissioner to exercise the discretion vested in him under Rule 250, inasmuch as the enabling power vested by Rule 250 was vested in the Commissioner for the welfare of the public at large it was coupled with a duty to exercise it when the circumstances so demanded.
The Commissioner could consequently be ordered under section 45 of the Specific Relief Act to exercise his discretion and decide whether the licence should or should not be cancelled.
(vi) The words "any law" in section 45 do not mean statutory law alone but embrace all kinds of law whether referable to a statutory provision or otherwise.
Therefore the perform ance of duties under the rules can be compelled under the provi sions of section 45.
(vii) There was no other specific and adequate legal remedy open to the respondent within the meaning of section 45 for though the respondent could have ignored the so called order of cancellation , he could only have done so.
at his peril as it purported to emanate from the State Government and was served by a public officer.
The remedy of injunction was not a proper and adequate remedy in the circumstances of the present case.
(viii) The petition was not incompetent under section 46 of the Specific Relief Act as there had been a demand of justice and a denial thereof within the meaning of the section in the circumstances of the case.
(ix) Public orders, publicly made, in exercise of a statu tory authority cannot be construed in the light of explana tions subsequently given by the officer making the order of what he meant or of what was in his mind, or what he intend ed to do.
As such orders are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed ' they must be construed objec tively with reference to the language used in the order itself.
137 Julius vs Lord Bishop of Oxford (5 App.
Cas, 214), Alcock, Ashdown & Co vs Chief Revenue Authority (50 I .A. 227) referred to.


judgement:
iminal Appeal No. 97 of 1957.
Appeal by special leave from the judgment and order dated November 20,1956, of the Andhra Pradesh High Court at Hyderabad in Criminal Confirmation Case No. 18 of 1956 and Criminal Appeal No. 240 of 1956 arising out of the judgment and order dated April 25, 1956, of the Court of the Sessions Judge at Karimnagar in Criminal Case No. 9/8 of 1956.
R. C. Prasad, for the appellant.
R. H. Dhebar and T. M. Sen, for the respondent.
July 15.
The Judgment of the Court was delivered by SINHA J.
The main question for determination in this appeal by special leave is whether and, if so, how far non compliance with the provisions of sections 173(4) and 207A(3) of the Code of Criminal Procedure, has affected the legality of the proceedings and the trial resulting in the conviction of the appellant.
The appellant was tried by the learned Sessions Judge of Karimnagar in what used to be the State of Hyderabad (now part of the State of Andhra Pradesh), under section 302 of the Indian Penal Code, for the murder of his brother Baga Rao, and sentenced to death.
The conviction and the sentence were affirmed by the High Court of Judicature of Andhra Pradesh, at Hyderabad, on appeal and on a reference by the learned Sessions Judge.
Along with the appellant, three other persons, named Lingarao, the appellant 's brother, Narsingrao, the nephew of the appellant and son of Lingarao 285 aforesaid, and Mahboob Ali, said to be a close friend of the other accused, were also tried under section 302, read with sections 34 and 109 of the Indian Penal Code, and convicted and sentenced to imprisonment for life.
Their appeals also were heard along with the appeal preferred by the appellant and by a common judgment, the High Court dismissed all the appeals and confirmed the convictions and sentences passed against all the four accused persons.
This appeal concerns only Narayan Rao who has been sentenced to death by the courts below.
The facts of the case are short and simple.
The murdered man Baga Rao, who was an excise contractor, had separated from his other brothers aforesaid, and had partitioned the family lands.
There were differences amongst the brothers which had led to arbitration proceedings a few months earlier, which did not satisfy Baga Rao.
On the Saturday previous to the Monday, December 26, 1955, which was the day of the occurrence, there was a quarrel between Baga Rao on one side and Lingarao and Narsingrao on the other in the field said to belong to Baga Rao.
The parties reside in village Kollamaddi taluk Sircilla, district Karimnagar.
At about 7 a.m. "on the morning of December 26, 1955, Baga Rao had been proceeding from his village towards Nirmal side.
The accused, who appears to have been lying in wait for Baga Rao, came running from behind and the appellant fell upon Baga Rao with his knife.
The other accused persons caught hold of Baga Rao and the appellant inflicted several injuries on his person with his knife (M.O. 13).
At first, Baga Rao got himself released from the grip of Narsingrao but the latter chased him and overtook him.
All the accused overpowered him by catching hold of the different parts of his body, and the appellant stabbed him in the regions of the neck, abdomen, thigh and other parts of his body, the fatal injuries being in the neck and the abdomen.
At the time of the occurrence, P.W. 1, father 's brother of the appellant, who also was proceeding towards Nirmal, saw most of the occurrence and then, out of fear, hid himself in a hut nearby.
P.W. 2 a boy of about 12 286 years a student of 4th standard in a Government school, was also proceeding in that direction that morning, and saw the whole occurrence from beginning to end from a short distance of a few yards.
This young boy claimed the murdered Baga Rao as his maternal uncle, stating that his mother is the sister of Baga Rao.
But the wife of the murdered man, P.W. 6, stated in cross examination that P.W. 2 Ramchander Rao is distantly related to her husband and that he is not the son of her husband 's sister.
The father of the murdered man, Chatriah, aged about 85 years, who has been examined as defence witness No. 1, disclaimed all relationship with the said P.W. 2, but stated that he is related to Dharmiah, P.W. 1, who is no other than his full brother.
Chatriah, the father, had been examined to support the defence suggestion that it was P.W. 1, Dharmiah Rao and his son who got Baga Rao murdered and falsely implicated the accused persons.
That evidence has naturally not been accepted by the courts below because such a case was never sought to be made out at any previous stage of the proceedings until his examination in court.
D.W. 2 who claims to be the son in law of P.W. 1, was examined only to prove that there had been a rivalry between P.W. I and the accused persons for the purchase of some land.
His evidence was rejected as vague and of no relevance.
The case against the appellant, as also against other accused persons not before this Court, rested mainly on the evidence of Dharmiah P.W. I and Ramchander Rao, P.W. 2, who figure as the eye witnesses.
Besides their testimony, there is the evidence of the recovery of the blood stained garments from the houses of the accused persons and the blood stained knife found near the dead body, and identified in court as belonging to the appellant, which were all found by the chemical examiner, to have stains of human blood.
The courts below have relied upon the evidence of the eye witnesses, corroborated by the incriminating circumstances aforesaid, and have agreed in convicting and sentencing the accused as stated above.
287 We have been taken through the evidence in this case and after having heard counsel for the appellant, we do not see any reasons to differ from the courts below in their estimate of the evidence adduced by the prosecution in support of the case against the appellant.
Hence, in our opinion, there is no ground for interference with the conclusions of the courts below on the merits of the case.
It now remains to consider the question of law which has been seriously pressed upon us.
It has been argued, as was admitted by the learned Government Advocate before the High Court, that the provisions of sections 173(4) and 207A(3) of the Code of Criminal Procedure, have not been complied with, and that, as a necessary consequence of those omissions, the entire proceedings and the trial are vitiated.
It is convenient at this stage to set out the course, in some respects rather unusual, of the proceedings before the police and the committing magistrate as also at the trial before the learned Sessions Judge.
When P. W. 1 aforesaid informed Gopal Rao (P. W. 8) Police Patel about the occurrence, he drew up the first information report at about 11 a.m., on December 26.
All the four accused were named as the culprits in the first information report.
He issued that report to the station house, Gambhiraopet, about 5 miles from the place of occurrence.
The Sub Inspector of police, P.W. 11, proceeded to the spot and prepared the inquest report.
He found the throat of the deceased cut, besides other injuries on the left side of the stomach and right thigh and three wounds on the left hand.
Two panchas, Lachmayya and Ramayya (P.W. 10), were called by the police officer and in their presence and under their signatures, he entered a long note as to what the panchas saw on the spot, and then follows the substance of the statements of the eye witnesses, P.Ws. 1 and 2, aforesaid.
This record of the statements of the two eye witnesses, aforesaid, made the same day when the occurrence took place, has been made to serve the double purpose of what the police officer and the panchas aforesaid saw and heard at the spot, as also the record of the substance of the 288 two main witnesses for the prosecution before the investigating police officer.
The post mortem report, made the next day, December 27, corroborated the nature of the injuries stated above, and added that the incised wound across the lower part of the neck, had cut the vital organs like trachea, oesophagus and the jugular vein.
The prosecution also proved, as exhibit P 5, the panchnama prepared the same day and signed not only by the panchas but purporting to have been signed also by the accused persons.
This document is a record which is a complete confession of the crime from the beginning to the end by all the accused persons.
This was highly irregular, but fortunately, it was not a jury trial and has not, therefore, done much harm to the accused persons, but certainly the provisions of the Evidence Act and of the Code of Criminal Procedure have not been observed.
On January 10 and 11, 1956, the learned Munsiff Magistrate recorded the full length statements of Ramchander Rao as P.W. 1, and of Dharmiah Rao, P.W. 2, under section 164 of the Code of Criminal Procedure.
Apparently, the police, apprehending that those two persons were related to three out of the four accused, took the precaution of having their statement so recorded.
The police report under section 173 of Criminal Procedure Code was made by the investigating police officer on January 11, 1956, and was placed before the Munsiff Magistrate on January 12.
It gives a very complete statement of the prosecution case and the names and full description 'of the witnesses to be examined in support of the prosecution case.
The learned Munsiff Magistrate appears to have examined the investigating police officer as P.W. 1, and the two eye witnesses, Dharmiah and Ramchander Rao, as P.Ws. 2 and 3, and the medical officer as P.W. 4, on or about February 15, 1956.
The record of the statement of the medical officer appears in the paper book, but the evidence of the other three witnesses does not appear in the paper book.
On February 16,1956, the learned Munsiff Magistrate put very detailed questions to each one of the accused persons and placed the evidence of all the witnesses examined by him in detail, to the 289 accused persons who have denied their complicity in the crime and who alleged enmity with the two eyewitnesses aforesaid.
The committal order, if any, is not before us.
The learned Munsiff Magistrate framed a charge for murder under section 302, against the appellant, and ' for participation in the crime, against the other three accused, under section 302, read with sections 34 and 109 of Indian Penal Code.
He again put a number of questions to each one of the accused persons as to what they had to say against the charges framed and as to what they had to say in their defence.
It does not appear that before the learned Munsiff Magistrate who was holding his inquiries under section 207A(3) and (4), any grievance was made that the provisions of section 173(4) had not been complied with by the police officer in charge of the investigation.
Nor does it appear that any request was made, to call upon the police officer concerned, to furnish to the accused, copies referred to in sub section
(4) of section 173 of the Code.
There is no indication in the record that even when the accused persons were placed on their trial before the learned Sessions Judge, any such grievance or any such request was made to that court.
The cross examination of the eye witnesses aforesaid has been done at some length, and there are also references to the record made by the police officer during the investigation.
It was only after the conviction and sentences of the accused persons by the learned Sessions Judge, when the appeals were preferred to the High Court, that the ground is raised, for the first time, in the memoranda of appeal in these terms: "The lower court has lost sight of the fact that the mandatory provisions of sections 173, 207A and other sections of the Code of Criminal Procedure have not been complied with, and this fact has caused a complete failure of justice." The High Court, while dealing with this ground of appeal, has observed that the learned Government Advocate, while conceding that the committing court had not complied with the provisions of those sections, had urged that the omission was not sufficient to 37 290 vitiate the trial unless the accused succeeded in showing that they had been prejudiced in their defence.
They further observed that when the accused got the copies in the Sessions Court before the recording of the statement of the witnesses, it could not be said that the accused had been so prejudiced.
The High Court finds, as a fact, that the accused got the necessary copies of the depositions of the witnesses in the Sessions Court before the statements of the prosecution witnesses were recorded by that court.
The High Court also remarked that it was not denied that the copies were supplied a day earlier, but that there was nothing to show that the accused made any grievance that the time at their disposal was too short to enable them to cross examine the prosecution witnesses, or that they prayed for an adjournment of the case in order to enable them to effectively cross examine those witnesses.
In view of these considerations, the High Court held that the accused had failed to show any prejudice.
Before us, no attempt was made to show that the non compliance with the provisions of sections 173(4) and 207A(3) had caused any prejudice to the accused.
The learned counsel for the appellant sought to argue that the omission had the effect of vitiating the entire proceedings ending in the trial of the accused, and that, therefore, ipso facto, a fresh trial became necessary irrespective of whether or not the accused had shown any prejudice.
In other words, he contended that these illegalities rendered the proceedings null and void and that the Court need not stop to consider the question of prejudice.
Section 173, sub section
(4), of the Code of Criminal Procedure was amended by the Code of Criminal Procedure Amendment Act, 26 of 1955, by adding the following: "(4) After forwarding a report under this section, the officer in charge of the police station shall, before the commencement of the inquiry or trial, furnish or cause to be furnished to the accused, free of cost, a copy of the report forwarded under sub section (1) and of the first information report recorded under section 154 and of all other documents or relevant extracts 291 thereof, on which the prosecution proposes to rely, including the statements and confessions, if any, recorded under section 164 and the statements recorded under sub section (3) of section 161 of all the persons whom the prosecution proposes to examine as its witnesses.
(5)Notwithstanding anything contained in subsection (4), if the police officer is of opinion that any part of any statement recorded under sub section (3) of section 161 is not relevant to the subject matter of the inquiry or trial or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interests, he shall exclude such part from the copy of the statement furnished to the accused and, in such a, case, he shall make a report to the Magistrate starting his reasons for excluding such part : Provided that at the commencement of the inquiry or trial, the Magistrate shall, after perusing the part so excluded and considering the report of the police, officer, pass such orders as he thinks fit and if he so directs, a copy of the part so excluded or such portion thereof, as he thinks proper, shall be furnished to the accused.
" In order to simplify commitment proceedings preceding the trial of accused persons by a court of Session,s. 207A was added by way of amendment of the Code at the same time.
In the added section 207A, sub sections 3 and 4, which are material portions of that section, are in these terms : " (3) At the commencement of the inquiry, the Magistrate shall, when the accused appears or is brought before him, satisfy himself that the documents referred to in section 173 have been furnished to the accused and if he finds that the accused has not been furnished with such documents or any of them, he shall cause the same to be so furnished.
(4)The Magistrate shall then proceed to take the evidence of such persons, if any, as may be produced by the prosecution as witnesses to the actual commission of the offence alleged; and if the Magistrate is of opinion that it is necessary in the interests of justice 292 to take the evidence of any one or more of the other witnesses for the prosecution, he may take such evidence also.
" It will thus appear that in cases exclusively triable by a court of Session, it is the duty of the magistrate, while holding a preliminary inquiry, to satisfy himself that the documents referred in s.173 have been furnished to the accused and if he found that the police officer concerned had not carried out his duty in that behalf, the magistrate should see to it that is done.
After the accused have been furnished with the necessary documents, it is now required to record evidence of only such witnesses for the prosecution as had witnessed the actual commission of the offence charged against the accused and of such other witnesses as he may consider necessary in the interests of justice.
From what has been said above, it is clear that the Munsiff Magistrate did record the evidence as required by sub section
(4) of section 207A.
But it has been found by the High Court, on the admission of the Government Advocate, that the provisions of sub section 3 of section 207A had not been complied with.
It is not clear as to whether all the documents contemplated by section 173(4), quoted above, had not been furnished to the accused or documents other than the statements of witnesses had not been so supplied.
The judgment of the High Court would appear to indicate the latter, but we shall proceed on the assumption that there was, an entire omission to carry out the provisions of subs.
(4) of section 173, read with sub section
3 of section 207A.
Does such an omission necessarily render the entire proceedings and the trial null and void; or is it only an irregularity curable with reference of the provisions of section 537 (a) of the Code ? In other words, are the provisions of section 173(4), read with section 207A(3) mandatory or only directory ? There is no doubt that those provisions have been introduced by the amending Act of 1955, in order to simplify the procedure in respect of inquiries leading upto a Sessions trial, and at the same time to safeguard the interests of accused persons by enjoining upon police officers concerned and magistrates, before whom such proceedings are brought, to 293 see that all the documents, necessary to give the accused persons all the information for the proper conduct of their defence, are furnished.
It has rightly been contended on behalf of the appellant that it was the duty of the magistrate to see that the provisions aforesaid of the Code have been fully complied with.
Magistrates, therefore, have to be circumspect, while conducting such proceedings, to see to it that accused persons are not handicapped in their defence by any omission on the part of police officers concerned, to supply the necessary copies.
But we are not prepared to hold that non compliance with those provisions has, necessarily, the result of vitiating those proceedings and subsequent trial.
The word "shall" occurring both in sub section
(4) of section 173 and sub section
(3) of section 207A is not mandatory but only directory, because an omission by a police officer, to fully comply with the provisions of section 173, should not be allowed to have such a far reaching effect as to render the proceedings including the trial before the court of Session wholly ineffective.
Instead of simplifying the procedure, as was intended by the amending Act, as indicated above, the result contended for on behalf of the appellant, will, necessarily, result in re opening the proceedings and trials which may have been concluded long ago.
Such a result will be neither conducive to expeditious justice nor in the interest of accused persons themselves.
Certainly, if it is shown, in a particular case, on behalf of the accused persons that the omission on the part of police officers concerned or of the magistrate before whom the committal proceedings had fended, has caused prejudice to the accused, in the interest of justice, the court may reopen the proceedings by insisting upon full compliance with the provisions of the Code.
In our opinion, the omission complained of in the instant case should not have a more farreaching effect than the omission to carry out the provisions of section 162 or section 360 of the Code.
Courts in India, before such matters were taken to their Lord.
ships of the Judicial Committee of the Privy Council, had taken conflicting views on the scope of section 537 of the Code in curing such omissions as aforesaid.
In the 294 case of Abdul Rahman vs The King Emperor(1), their Lordships of the Judicial Committee had to consider the effect of non compliance with the provisions of section 360 of the Code.
After considering the relevant provisions of the Code, their Lordships came to the conclusion that it was a mere irregularity which could be cured by the provisions of section 537.
In the case of Pulukuri Kotayya and others vs King Emperor (2), the Judicial Committee had to consider the effect of breach of the statutory provisions of section 162 of the Code.
The following observations of their Lordships, at pages 75 76, are a complete answer to the arguments advanced on behalf of the appellant before us, and we respectfully adopt them: " When a trial is conducted in a, manner different from that prescribed by the Code (as in N. A. Subramania Iyer 's case (3)), the trial is bad, and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under section 537, and none the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code.
The distinction drawn in many of the cases in India between an illegality and an irregularity is one of degree rather than of kind.
This view finds support in the decision of their Lordships ' Board in Abdul Rahman vs The King Emperor (1), where failure to comply with section 360 of the Code of Criminal Procedure was held to be cured by sections 535 and 537.
The present case falls under section 537, and their Lordships hold the trial valid notwithstand ing the breach of section 162.
" In the instant case, the facts as stated above are extremely simple.
It was a case of a day light murder by four persons acting in concert and way laying the deceased when lie was out on business that morning.
Two persons, more or less related to three of the accused (1)(1929) L.R. 55 I.A. 96.
(2)(1947) L.R. 74 I.A. 65, 75 76.
(3) (1901) L.R. 28 I.A. 257.
295 persons, gave evidence as eye witnesses to the occurrence.
Their statements were recorded by the police in some detail in the inquest report itself on the very day of the occurrence.
There was not much scope for variations in their statements during police investigation and those before the court.
It was a simple case of either believing or disbelieving those two eye witnesses.
As already indicated, all the four accused persons including the appellant were named at the earliest opportunity in the first information report which was lodged without any avoidable delay within a few hours after the occurrence.
Both the courts below have preferred to rely upon the testimony of the two eye witnesses, corroborated by the circumstantial evidence referred to above.
They have rejected the defence suggestions supported as they are by the two defence witnesses, one of whom is a common ancestor of three of the four accused persons.
It has not been argued, and there is no scope for the argument, that the accused persons have been prejudiced in any way in their defence.
They had to meet a straightforward case which they failed to do.
After carefully considering the arguments advanced on behalf of the appellant, we have come to the conclusion that the proceedings and the trial have not been vitiated by the admitted non compliance with the provisions aforesaid of the Code, and that the irregularity is curable by reference to section 537 of the Code, as no case of prejudice has been made out.
This Court, in the case of Gurbachan Singh vs The State of Punjab (1), was inclined to take a similar view of the provisions aforesaid of the Code, though it ultimately held that those provisions did not apply to the case then before them.
The appeal is accordingly dismissed.
Appeal dismissed.
(1) Criminal Appeal No. 48 of 1957, decided on April 24, 1957.

dataset_name: IN-Abs

summary:
The word 'shall ' occurring in sub section
(4) Of section 173 and sub section (3) Of section 207A of the Code of Criminal Procedure is not mandatory but directory and a non compliance with the provisions of those subsections, unless it can be shown to have prejudiced the accused person in his defence, cannot invalidate the commitment proceedings or the subsequent trial.
Magistrates holding inquiries under section 207A(3) Of the Code of Criminal Procedure must, however, be circumspect and see that an accused person is not handicapped in his defence by any omission on the part of the Police Officer to furnish him with necessary copies.
Where such non compliance is found to cause any prejudice to the accused, the Court should in the interest of justice reopen the proceedings and insist on a full compliance with the provisions.
When it causes no prejudice, it is a mere irregularity curable under section 537 Of the Code.
Abdul Rahman vs The King Emperor, (1929) L.R. 55 I.A. 96, Pulukuri Kolayya vs King Emperor, (1947) L.R. 74 I.A. 65 and Gurbachan Singh vs The State of Punjab, Cr.
A. NO.
48 of 1957 applied.
284 Consequently, in a case where an accused person was com mitted to the Court of Session on a charge under section 302 of the Indian Penal Code and found guilty thereunder by the Sessions judge and awarded the capital sentence and the order of conviction and sentence was unassailable on merits, but the Police Officer had omitted to furnish him copies as required by section 173(4) and the inquiring Magistrate to cause such copies to be furnished to him under section 207A(3) of the Code of Criminal Procedure and such omission could not be shown to have in any way prejudiced the accused person in his defence, it was a mere irregularity that did not vitiate either the commitment proceedings or the trial and was cured by section 537 Of the Code.


judgement:
ivil Appeal No. 768 (NL) of 1973 From the order dated 27.9.1972 of the Industrial Court, Maharashtra, Bombay in Appeal (IC) No. 133 of 1971.
G.B. Pai, O.C. Mathur, section Sukumaran, Miss Meera Mathur and D.N. Mishra for the Appellant.
E Naunit Lal and Jitendra Sharma for the Respondent.
The Judgment of the Court was delivered by M.M. DUTT, J.
This appeal by special leave has been preferred by the appellant, Prakash Cotton Mills Pvt. Ltd., against the order dated September 27, 1972 of the Industrial Court, Maharashtra, Bombay directing payment of compensation by the appellant to its employees and to some badli workmen for the period from March 24, 1964 to June 10, 1964 (both days inclusive) during which the mill of the appellant had been closed down under circumstances beyond control of the appellant.
The appellant is a Company engaged in the business of manufacture of cotton textile goods and comes within the purview of the provisions of the Bombay Industrial Relations Act, 1946 (hereinafter referred to as the 'Act ').
It is not disputed that the mill of the appellant H 422 is recognised as an undertaking under section 11 of the Act.
The respondent, the Rashtriya Mill Mazdoor Sangh, is the approved, registered and representative union under section 14 of the Act, representing the employees in the cotton textile industry within the limits of Greater Bombay.
It appears that on account of the alleged failure of the appellant to pay the Central Excise duty, certain detention orders were passed by the Assistant Collector of Central Excise detaining the goods of the appellant like cotton fabrics, cotton yarn and cotton bales Lying in the premises of the appellant 's mill.
As a result of the said detention orders, the goods which were essential for the manufacturing process in the appellants mill were detained and, consequently, there was a disruption in the functioning of the appellant 's mill compelling the appellant to stop the working of the mill.
It is not necessary for us to state in detail the proceedings that were taken by the appellant against the said detention orders, but suffice it to say that the detention orders were withdrawn and the appellant started the working of the mill after June 10,1964.
The respondent Sangh demanded that the employees who were affected by the said closure from March 29, 1964 to June 10, 1964 should be paid their wages for the entire period.
As the said demand was not accepted by the appellant, the respondent filed an application before the First Labour Court, Bombay, under section 79 read with section 78 of the Act and prayed for the payment of full closure compensation to the employees affected during the aforesaid period.
The application of the respondent was opposed by the appellant.
It was contended on behalf of the appellant that as the closure was due to certain circumstances beyond the control of the appellant, the appellant was not liable to pay any compensation for such closure.
The Labour Court, after hearing the parties, by its order dated February 19,1968 held that the appellant was liable to pay closure compensation to the employees affected at the rate of 50% of the total basic wages and dearness allowance on the ground that such closure amounted to lay off within the meaning of section 2(kkk) of the , and that compensation at the same rate as prescribed by section 25C of the , namely 50% of the total wages would be payable to the employees affected by the said closure.
The appellant preferred an appeal against the said order of the 423 Labour Court to the Industrial Court, Maharashtra.
The Industrial A Court set aside the order of the Labour Court and remanded the matter to that Court for a fresh enquiry and finding on the question of liability and extent of compensation for the period of closure.
After remand, the Labour Court again held that the appellant was liable to pay closure compensation to the employees affected by the closure of the mill from March 24,1964 to June 10, 1964 at the rate of 50% of the basic wages and dearness allowance.
The appellant again preferred an appeal to the Industrial Court, Maharashtra, contending, inter alia, that it was not liable to pay any compensation on account of closure that took place under circumstances beyond the control of the appellant and that, in any event, the appellant was not liable to pay compensation to the Badli workmen.
C The Industrial Court by the impugned order dated September 27, 1972 partly allowed the appeal and directed the appellant to pay closure compensation to the employees affected by the closure for the said period from March 24, 1964 to June 10, 1964 at the rate of 50% of their basic wages and dearness allowance and further directed that where the employees had been sick and enjoyed sickness benefits for all the days or had been on privilege leave or enjoyed leave with wages for all the days or secured alternative employment for any period during the closure, such employees would not be entitled to any closure compensation for such days, but in respect of such days half of the wages payable to Badli workmen in lieu of the said three categories of workmen would be paid to the Badli workmen equitably.
Being aggrieved by the said order of the Industrial Court, the present appeal has been filed by the appellant by special leave.
Mr. G.B. Pai, learned Counsel appearing on behalf of the appellant, submits in the first instance that as the appellant had closed down the mill in accordance with the provisions of Standing orders 16 & 17, it is not liable to pay any compensation.
Standing orders 16 & 17 provide as follows: "16.
The Company may, at any time or times, in the event of a fire, catastrophe, breakdown of machinery or stop page of the power supply, epidemic, civil commotion or other cause, beyond the control of the Company, stop any machine or machines or department or departments, wholly or partially for any period or periods, without notice and without compensation in lieu of notice.
424 In the event of a stoppage of any machine or department under this order during working hours, the operatives affected shall be notified by notices put upon notice boards in the department concerned and at the time keeper 's office, as soon as practicable, when work will be resumed and whether they are to remain or leave the mill.
The period of detention in the mill shall not ordinarily exceed one hour after the commencement of the stop page.
If the period of detention does not exceed one hour, operatives so detained shall not be paid for the period of detention.
If the period of detention in the mill exceeds one hour, operatives so detained shall be entitled to receive wages for the whole of the time during which they are detained in the mill as a result of the stoppage.
In the case of piece workers, the average daily earnings for the previous month shall be taken to be the daily wages.
Any operative played off under order 16 shall not be considered as dismissed from service, but as temporarily unemployed, and shall not be entitled to wages during such unemployment except to the extent mentioned in order 16.
Whenever practicable a reasonable notice shall be given of resumption of normal work and all operatives played off under order 16, who present them selves for work, when the normal working is resumed, shall have prior right of reinstatement.
" Relying upon the provision of Standing order 16, it is urged by the learned counsel for the appellant that as the said Standing order does not make any provision for payment of compensation on account of closure of the mill, when such closure was due to circumstances beyond the control of the Company, the Industrial Court was wrong in directing payment of compensation to the employees of the appellant for the period in question including payment to the Badli workmen.
The question whether compensation should be paid to the Badli workmen will be considered by us later in this judgment.
We are, however, unable to accept the contention of the appellant that as the closure had been made in accordance with the provisions of the Standing orders 16 & 17 due to circumstances beyond the control of the appellant, the appellant is not liable to pay any compensation to its employees for the period of closure.
Nor are we in a position to accept 425 the contention of the Counsel for the appellant that the application of A the respondent Sangh before the First Labour Court was not maintainable as the closure was made under the provisions of the Standing orders 16 & 17.
In this connection, we may refer to the provision of sub section (4) of section 42 of the Act which provides as follows: "42(4).
Any employee or a representative union desiring a change in respect of (i) any order passed by the employer under standing orders, or (ii) any industrial matter arising out of the application or interpretation of standing orders, or (iii) an industrial matter specified in Schedule III, except item (5) thereof shall make an application to the Labour Court and as respects change desired in any industrial matter specified in item (3) of Schedule III, to the Industrial Court: Provided that no such application shall lie unless the employee or a representative union has in the prescribed manner approached the employer with a request for the change and no agreement has been arrived at in respect of the change within the prescribed period.
" Item No. 7 of Schedule III, referred to in sub section (4), relates to "Payment of compensation for closures".
Further, clause (a)(iii) of section 78(1) of the Act provides that a Labour Court shall have power to decide any change made by an employer or desired by an employee in respect of an industrial matter specified in Schedule III, except item (5) thereof, and matters arising out of such change.
In view of the provision of sub section (4) of section 42 read with the provision of section 78(1) (a)(iii), it is manifestly clear that an employee is entitled to challenge the refusal by the Company to pay compensation for the closure and claim such compensation before the Labour Court whether or not such closure was due to circumstances beyond the control of the Company, as enumerated in Standing order 16.
Such a contention, if accepted, will make the provision of section 42(4) and that of section 78(1)(a)(iii) of the Act nugatory.
The respondent Sangh, therefore, in our opinion, was entitled to make the application before the Labour Court claiming compensation for the period of closure even though such closure was made in accordance with the provisions of the Standing orders 16 & 17.
There is no substance in the contention of the appellant that as 426 the closure had to be made under certain compelling circumstances, the appellant was not liable to pay compensation to any of its employees.
The Standing order 16 provides that such closure can be made without notice and no compensation would be required to be paid in lieu of notice.
It is clear from Standing order 16 that it does not contemplate that when there has been a closure on account of some unavoidable circumstances, no compensation is required to be paid to the employees.
Under the circumstances, there is no substance in the contention of the appellant that as the closure had been made in accordance with Standing orders 16 & 17, it is not liable to pay any compensation.
The contention is, accordingly, overruled.
We, therefore, uphold the order of the Industrial Court directing payment of compensation to the employees of the appellant for the above period of closure.
The next question that remains to be considered is whether the Industrial Court is justified in directing payment of compensation to some of the Badli workmen.
It is not in dispute that Badli workmen get work only in the absence, temporary or otherwise, of regular employees, and that they do not have any guaranteed right of employment.
Their names are not borne on the muster rolls of the establishment concerned.
Indeed, a Badli workman has no right to claim employment in place of any absentee employee.
In any particular case, if there be some jobs to be performed and the employee concerned is absent, the Company may take in a Badli workman for the purpose.
Badli workmen are really casual employees without any right to be employed.
It has been rightly submitted by the learned Counsel for the appellant that the Badli employees could not be said to have been deprived of any work to which they had no right and, consequently, they are not entitled to any compensation for the closure.
Indeed, the Industrial Court has itself observed that to allow the claim of Badli workmen would be tantamount to penalising the appellant.
In spite of the said observation, the Industrial Court directed payment of compensation to the Badli workmen in place of certain categories of regular employees.
We fail to understand how the Industrial Court can direct payment of compensation to the Badli workmen when, admittedly, such Badli workmen, as noticed already, have no right to be employed.
It may be that the Company may not have to pay closure compensation to the three categories of employees, as mentioned by the Industrial Court, but that does not mean that the Company has to pay compensation to the Badli workmen in place of these categories of employees.
In this connection, we may refer to section 25C of the 427 which excludes a Badli workman or a A casual workman from the benefit of compensation in the case of layoff.
In the circumstances, although we uphold the order of the Industrial Court for payment of compensation to the regular employees of the appellant at the rate fixed by it, we are unable to subscribe to the view that the compensation which would have been payable to the three categories of employees, should be paid to the Badli workmen.
In other words, we hold that Badli workmen have no right to claim compensation on account of closure.
Mr. Naunit Lal, learned Counsel appearing on behalf of the respondent Sangh, has placed reliance upon the fact that in the Rashtriya Mill Mazdoor Sangh vs Apollo Mills Ltd ., l ; , this Court awarded compensation to Badli workmen.
Accordingly, it is submitted by him that it is implied that this Court must have taken the view that Badli workmen are also entitled to compensation on account of closure under Standing orders 16 & 17.
We are unable to accept the contention.
The question whether the Badli workmen are entitled to compensation or not, was not raised in Apollo Mills case (supra).
Indeed, in that case, it has been observed by this Court that the case of Badli workmen does not appear to have been separately raised and, accordingly, there is no reason not to award them compensation.
Thus it appears that nothing was decided by this Court but, as no body challenged the right of the Badli workmen to get compensation, this Court directed payment of compensation to them.
We have, however, come to the conclusion that the Badli workmen are not entitled to any compensation on account of closure under Standing orders 16 & 17.
In the circumstances, the order of the Industrial Court in so far as it directs payment of compensation to the Badli workmen is set aside and, except that, the rest of the order of the Industrial Court is affirmed.
The appeal is allowed in part to the extent indicated above.
In view of the facts and circumstances of the case, there will, however, be no order for costs.
A.P.J. Appeal allowed in part.

summary:
Certain goods which are essential for the manufacturing process in the appellant 's mill were detained by the Excise Authorities for non payment of Central Excise Duty and consequently there was a disruption in the functioning of the appellant 's mill compelling the appellant to stop the working of the mill for the period from March 24, 1964 to June 10, 1964.
The Respondent Sangh demanded that the employees who were affected by the said closure should be paid their wages for the aforesaid period.
As the said demand was not accepted by the appellant, the respondent filed an application before the First Labour Court, praying for the payment of full closure compensation to the affected employees.
The Labour Court held the appellant liable to pay closure compensation to the employees affected by the closure of the mill for the aforesaid period at the rate of 50% of the basic wages and dearness allowance.
The Industrial Court partly allowing the appeal of the appellant, directed the appellant to pay closure compensation to the employees affected by the closure for the period from March 24,1964 to June 10, 1964 at the rate of 50 per cent of their basic wages and dearness allowance and further directed that where the employees had been sick and enjoyed sickness benefits for all the days or had been on privilege leave or enjoyed leave with wages for all the days or secured alternative employment for any period during the closure, such employees would 420 not be entitled to any closure compensation for such days, but in respect of such days half of the wages payable to Badli workmen in lieu of the said three categories of workmen would be paid to the Badli workmen equitably.
In appeal to this Court, it was contended on behalf of the appellant that as the closure had been made in accordance with the provisions of the Standing orders 16 and 17 due to circumstances beyond the control of the appellant, the appellant is not liable to pay any compensation to its employees for the period of closure including payment to the Badli workmen.
Allowing the appeal in part, ^ HELD: (1) The order of the Industrial Court in so far as it directs payment of compensation to the Badli workmen is set aside and, except that, the rest of the order of the Industrial Court is affirmed.
[427F G] 2.(i) Sub section
(4) of Sec.
42 read with the provision of section 78(1)(a)(iii) of the Bombay Industrial Relations Act 1946, makes it manifestly clear that an employee is entitled to challenge the refusal by the company to pay compensation of the closure and claim such compensation before the Labour Court whether or not such closure was due to circumstances beyond the control of the company, as enumerated in Standing order 16.
The Respondent Sangh therefore, was entitled to make the application before the Labour Court claiming compensation for the period of closure even though such closure was made in accordance with the provisions of the Standing orders 16 and 17.[425E H] 2.(ii) The Standing order 16 provides that such closure can be made without notice and no compensation would be required to be paid in lieu of notice.
It is clear from Standing order 16 that it does not contemplate that when there has been a closure on account of some unavoidable circumstances, no compensation is required to be paid to the employees.
Therefore, the order of the Industrial Court directing payment of compensation to the employees of the appellant for the above period of closure is upheld.
[426A C] 3.
Badli workmen get work only in the absence, temporary or otherwise, of regular employees, and that they do not have any guaranteed right of employment.
Their names are not borne on the muster rolls of the establishment concerned.
Indeed a Badli workman 421 has no right to claim employment in place of any absentee employee.
In A any particular case, if there be some jobs to be performed and the employee concerned is absent, the Company may take in a Badli workman for the purpose.
Badli workmen are really casual employees without any right to be employed.
Therefore, the Badli employees could not be said to have been deprived of any work to which they had no right and, consequently, they are not entitled to any compensation for the closure.
It may be that the Company may not have to pay closure compensation to the three categories of employees as mentioned by the Industrial Court, but that does not mean that the company has to pay compensation to the Badli workmen in place of these categories of employees.
[426D Il] Rashtriya Mill Mazdoor Sangh vs Appollo Mill Ltd., []960] 3 SCR 231 distinguished.


judgement:
ON: Writ Petition (Criminal) No. 1451 of 1985 Under Article 32 of the Constitution of India.
S.B. Bhasme, Harbans Lal, A.S. Bhasme, Badri Das Sharma, 445 C.V. Subba Rao, R. Kumar, D.N. Mukharji, R. Mukherji, Tapash A Roy, Dilip Sinha and J.R. Das for the Respondents.
The order of the Court was delivered by BHAGWATI, CJ.
This application under Article 32 of the Constitution has asked for release of children below the age of 16 years detained in jails within different States of the country, production of complete information of children in jails, information as to the existence of juvenile courts homes and schools and for a direction that the District Judges should visit jails or sub jails within their jurisdiction to ensure that children are properly looked after when in custody as also for a direction to the State Legal Aid Boards to appoint duty counsel to ensure availability of legal protection for children as and when they are involved in criminal cases and are proceeded against.
The Union of India and all the States and Union Territories have been impleaded as respondents.
On September 24, 1985, notice was directed to all the respondents.
A few of the respondent States filed counter affidavits in response to the notice.
The matter was adjourned on March 31, 1986.
to April 15, 1986, to enable the respondents who had not yet filed their affidavits to file such affidavits.
On April 15, 1986, after hearing counsel who appeared for the parties this Court pointed out: " .
It is an elementary requirement of any civilised society and it had been so provided in various statutes concerning children that children should not be confined to jail because incarceration in jail has a dehumanising effect and it is harmful to the growth and development of children.
But even so the facts placed before us, which include the survey made by the Home Ministry and the Social Welfare Department show that a large number of children below the age of 16 years are confined in jails in various parts of the country .
" This Court directed the District Judges in the country to nominate the Chief Judicial Magistrate or any other Judicial Magistrate to visit the District Jail and Sub Jail in their districts for the proposes of ascertaining how many children below the age of 16 years are confined in jail, what are the offences in respect of which they are charged, how many of them have been in detention whether in the same jail or previously 446 in any other jail before being brought to the jail in question, whether they have been produced before the children 's court and, if so, when and how many times and whether any legal assistance is provided to them.
The Court also directed that "each District Judge will give ut most priority to this direction and the Superintendent to each jail in the district will provide full assistance to the District Judge or the Chief Judicial Magistrate or the Judicial Magistrate, in this behalf who will be entitled to inspect the registers of the jail visited by him as also any other document/documents which he may want to inspect and will also interview the children if he finds it necessary to do so for the purpose of gathering the correct information in case of any doubt.
The District Judge, Chief Judicial Magistrate or the Judicial Magistrate, as the case may be, will submit report to this court within 10 weeks from today.
It will also be stated in the report as to whether there are any children 's home, Remand Home or observation Homes for children within his district and if there are, he will inspect such children homes, remand homes and observation homes for the purpose of ascertaining as to what are the conditions in which children are kept there and whether facilities for education or vocational training exist.
Such reports will be submitted by each District Judge through the Registrars of the respective High Courts to the Registrar of this Court.
Each State Government will also file affidavit stating as to how many children homes, remand homes and observation homes for children are in existence in the respective State and how many inmates are kept in such children homes, remand homes or observation homes.
The would also direct the State Legal Aid & Advice Board in each State or any other Legal Aid organisation existing in the State concerned, to send two lawyers to each jail within the State once in a week for the purpose of providing legal assistance to children below the age of 16 years who are confined in the jails.
" The writ petition was adjourned to July 17, 1986.
On April 24, 1986 the Court again made the following order: "We have adjourned the writ petition to 17.7.1986 for hearing and final disposal but we feel that it would be desirable to take it up when the Bench sits in vacation.
We would direct that the matter may be placed for final disposal before a Bench of this Court on 24.6.1986.
We have granted two months ' time to the District Judges to make their reports vide our order dated 15.4.1986.
Fresh intimation to this effect may be sent to the District Judges through the Registrars of the High Courts.
We may re 447 iterate that as soon as the reports are received copies A thereof may be supplied to the Advocates during the vacation itself . " The writ petition was thereafter listed on July 12, 1986, during the long vacation for hearing.
The Court found that though reports from several District Judges had come in response to the earlier direction, yet several District Judges had not sent their reports.
The Court observed: "It is a little surprising that though we gave directions long back directing the District Judges/Chief Judicial Magistrates to send their reports of inspection of not only the District Jails but also Sub Jails in the districts on or before 10.6.86 (24.6.86), the reports have not yet come in respect of several Districts and particularly in respect of sub jails in the Districts.
We propose to give directions for expediting submission of these reports at the next hearing of the writ petition.
We are very keen that the High Courts should be requested to monitor the submission of these reports and we have therefore requested the counsel appearing in the case to make constructive suggestions in that behalf.
Six further weeks have passed beyond the time indicated if the order dated April 15, 1986, and even till this day analysis shows that several District Judges have not complied with the direction.
This Court had intended that the report of the District Judges would be sent to the Registry of this Court through the Registrars of the respective High Courts.
This obviously meant that the Registrars of the High Courts were to ensure compliance.
We are both concerned and surprised that a direction given by the apex Court has not been properly carried out by the District Judges who are an effective instrumentality in the hierarchy of the judicial system.
Failure to submit the reports within the time set by the Court has required adjournment of the hearing of the writ petition on more than one occasion.
We are equally surprised that the High Courts have remained aloof and indifferent and have never endeavoured to ensure submission of the reports by the District Judges within the time indicated in the order of this Court.
We direct that every defaulting District Judge who has not yet submitted his report shall unfailingly comply with the direction and furnish the report by August 31, 1986, through his High Court and the Registrar of every High Court shall ensure that compliance with the present direction is made.
448 Article 39(f) of the Constitution provides that the State shall direct its policy towards securing that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.
Every State excepting Nagaland has a Children 's Act.
It is a fact some of the Acts have been in existence prior to inclusion of the aforesaid clause in Article 39 by the amendment of 1976.
Though the Acts are on the statute hook.
in some States the Act has not yet been brought into force.
This piece of legislation is for the fulfilment of a constitutional obligation and is a beneficial statute.
Obviously the State Legislatures have enacted the law on being satisfied that the same is necessary in the interest of the society, particularly of children.
There is hardly any justification for not enforcing the statute.
For instance, in the case of Orissa though the Act is of 1982, for four years it has not been brought into force.
Ordinarily it is a matter for the State Government to decide as to when a particular statute should be brought into force but in the present setting we think that it is appropriate that without delay every State should ensure that the Act is brought into force and administered in accordance with the provisions contained therein.
Such of the States where the Act exists but has not been brought into force should indicate by filing a proper affidavit by August 31, 1986, as to why the Act is not being brought into force in case by then the Act is still not in force.
Under the Jail Manuals prevalent in different States every jail has a nominated committee of visitors and invariably the District and Sessions Judge happens to be one of the visitors.
The purpose of having visitors is to ensure that the provisions in the Manual are strictly complied with so far as the convicts and the under trials prisoners detained in jail are concerned.
Being in jail results in curtailment of freedom.
lt is, therefore, necessary that the safeguards which are provided in the Manual should be strictly complied with and the prisoners should have the full benefit of the provisions contained in the Manual.
We direct that every District and Sessions Judge should visit the District Jail at least once in two months and in course of his visit he should take particular care about child prisoners, both convicts and undertrials and as and when he sees any infraction in regard to the children in the prison he should draw the attention of the Administration as also of his High Court.
We hope and trust that as and when such reports are received in the High Court the same would he looked into 449 and effective action would be taken thereupon.
It is hardly necessary A to point out that it is the obligation of the High Court to ensure that all persons in judicial custody within its jurisdiction are assured of acceptable living conditions.
The Court had made a direction to the State Legal Aid Boards to provide the facility of lawyer 's service in regard to under trial children.
No report has yet been received from any Board as regards action taken in this direction.
The State Boards will now furnish the information also by August 31, 1986.
Certain other directions have been given earlier by this Court.
All such directions shall be complied with and returns shall be furnished to this Court also by August 31, 1986.
We hope and trust that there would be strict compliance with these directions now made and there would be no occasion for any further direction to be made for the self same purpose.
The writ application shall be placed for directions on September 8, 1986.
The petitioner, we must record, has undertaken real social service in bringing this matter before the Court.
She has stated to us that she intends visiting different parts of the country with a view to gathering further information relevant to the matter and verifying the correctness of statements of facts made in the counter affidavits filed by the respondent States.
We are of the view that the petitioner should have access to information and should be permitted to visit jails, children 's homes, remand homes, observation homes, Borstal schools and all institutions connected with housing of delinquent or destitute children.
We would like to point out that this is not an adversary litigation and the petitioner need not be looked upon as an adversary.
She has in fact volunteered to do what the State should have done.
We expect that each State would extend to her every assistance she needs during her visit as aforesaid.
We direct that the Union Government respondent No. 1 shall deposit a sum of rupees ten thousand for the time being within two weeks in the Registry of this Court which the petitioner can withdraw to meet her expenses.
We would like to make it clear that the information which the petitioner collects by visiting the children 's institutions in different States as indicated above is intended to be placed before this Court and utilised in this case and not intended for publications otherwise.

summary:
The petitioner filed the present petition under Article 32 of the Constitution for release of children below the age of 16 years detained in jails within different States of the country, production of complete information of children in jails and existence of juvenile Courts, homes and schools in the country.
The petitioner also asked for a direction to the State Legal Aid Boards to appoint duty counsel to ensure availability of legal protection for children as and when they are involved in criminal cases.
The Supreme Court while directing the State Legal Aid and Advice Board in each State or any other Legal Aid organisation existing in the State concerned, to send two lawyers to each jail within the State once a week for the purpose of providing legal assistance to children below the age of 16 years who are confined in the jails, called for information from the District Judges about the children below the age of 16 years detained in various jails.
However several District Judges did not comply with the direction within the time granted.
While showing concern and surprise that a direction given by the apex Court has not been properly carried out by the District Judges who are an effective instrumentality in the hierarchy of the judicial system, the Court, 444 ^ HELD: (1) Every defaulting District Judge who had not submit ted his report shall unfailingly comply with the direction and furnish the report by August 31, 1986 through his High Court, and the Registrar of every High Court shall ensure that compliance of the present direction is made.
It is surprising that the High Courts have remained aloof and indifferent and have never endeavored to ensure submission of the reports by the District Judges within the time indicated in the order of this Court.
[447G H] (2)(I) Enough the Children 's Acts are on the statute book, in some States the Act has not been brought into force.
This piece of legislation is for the fulfilment of a constitutional obligation and is a beneficial statute.
There is hardly any justification for not enforcing the statute.
Ordinarily it is a matter for the State Government to decide as to when a particular statute should be brought into force but in the present setting, it is appropriate that without delay every State should ensure that the Act is brought into force and administered in accordance with the provisions contained therein.
[448B E] (2)(II) Such of the States where the Act exists but has not been brought into force should indicate by filing a proper affidavit as to why the Act is not being brought into force in case the Act is still not in force.
[448E] (3)(I) The safeguards which are provided in Jail Manuals prevalent in different States should be strictly complied with and the prisoners should have the full benefit of the provisions contained in the Manual.
It is also the obligation of the High Court to ensure that all persons in judicial custody within its jurisdiction are assured of acceptable living conditions.
[448F; 449A] (3)(II) Every District and Session Judge should visit the district jail at least once in two months, and in the course of his visit, he should take particular care about child prisoners, both convicts and under trials and as and when he sees any infraction in regard to the children in the prison he should draw the attention of the Administration as also of his High Court.
[448G H]