Kania, J. -
(1.) THIS is a petition filed against the Municipal Commissioner for the City of Bombay, praying that he be ordered forthwith to grant a license on the terms and conditions usual and proper, authorising the petitioner to carry on, or be allowed to carry on, upon his premises in Bombay the trade or operation of melting vegetable oil.
(2.) THE petitioner had been carrying on business in Bombay prior to March, 1933, and held a license from the respondent, which contained inter alia condition 4a, which ran as follows : Ghee or butter, or other animal fat, whether unmixed or mixed with vegetable oil or with other substance shall not be kept on the premises. THE license so granted expired on March 31, 1933. THE respondent thereafter refused to renew licenses in Bombay for melting vegetable oil and it is alleged that among others he refused to renew the license of the petitioner also. On July 19, 1933, a complaint was filed under the directions of the respondent charging one Kheraj Ubhaiya with contravening the provisions of Sections 394 and 479 of the City of Bombay Municipal Act and contending that thereby an offence was committed under Section 471 of the Act. THE complaint was that he had infringed condition 4a of the license by keeping some ghee or butter on the premises in respect of which the license was granted to him. On November 7, 1933, the complaint was heard by the Presidency Magistrate, Third Court, and the accused's statement was recorded. THE accused contended that as ghee was allowed to be kept up to four hundred-weights without a license he had kept the same on the premises. THE learned Magistrate acquitted the accused on December 19, 1933. From the record annexed to the petitioner's affidavit in rejoinder I do not find the reasons, if any, recorded by the learned Magistrate for that order.
After that order was made, it is alleged that prosecutions were launched against various persons (members of the association of which the petitioner is the leader) under the Prevention of Adulteration Act, 1925. One of the cases, which appears to have been treated as a test case, was brought in revision application No.115 of 1934 to the High Court, and as in that case it was found that vegetable ' tawda' was asked for and supplied, there was no question of conviction under that Act, and the conviction was quashed. After that decision was given, on February 19, 1935, the respondent issued a general circular intimating that he had decided to prohibit the melting of vegetable oil in the City of Bombay, and there was a general refusal to issue licenses to melt vegetable oil. On June 15, 1935, the present petition was filed. It appears that the respondent then took legal advice and intimated to the petitioner that he did not propose generally to refuse licenses, but was prepared to consider individual applications for license on their own merits. Prosecutions launched under the respondent's directions on the ground that certain traders were carrying on business of melting vegetable oil without a license were dropped, presumably because those parties were carrying on the business after the general refusal to issue licenses was intimated to them. On August 29, 1935, the respondent, through his attorneys, informed the petitioner that the prosecutions launched as aforesaid would be withdrawn and he would consider each application for a license to melt vegetable oil on its merits. After considering the petitioner's application in that way he refused to issue a license to the petitioner. The petition, therefore, is pressed to a hearing.
The relevant portions of Section 394 of the City of Bombay Municipal Act (III of 1888) run as follows : 394. (2) Except under and in conformity with the terms and conditions of a license granted by the Commissioner no person shall (a) keep, in or upon any premises, for any purpose whatever, (i) any article specified in Part I of Schedule M, or (ii) any article specified in Part II of Schedule M, in excess of the quantity therein prescribed as the maximum quantity of such article which may at any one time be kept in or upon the same premises without a license; (d) carry on, or allow to be carried on, in or upon any premises (i) any of the trades or operations connected with trade specified in Part IV of Schedule M; (4) It shall be in the discretion of the Commissioner (a) to grant any license referred to in sub-section (i) subject to such restrictions or conditions (if any) as he shall think fit to prescribe, or (b) to withhold any such license. Part II of Schedule M contains, inter alia, ghee kept for sale, and the maximum quantity which may be kept at any one time without a license. . . (4 Cwts.); Gun-powder, (5 Lbs.); Matches for lighting (1 gross boxes ). Part IV of Schedule M mentions melting of vegetable oil.
(3.) HAVING regard to the foregoing provisions, it is clear that the respondent has a discretion to issue licenses referred to in Sub-section (1) subject to such restrictions and conditions as he shall think fit to prescribe. On behalf of the petitioner it is contended that the imposition of condition 4a in the license is not in accordance with the Municipal Act and is therefore ultra vires the Commissioner. It is alleged that if the respondent insists on including that condition in the license, under the circumstances, there is a wrongful refusal to issue a license according to law. In respect of the exercise of the discretion it is contended on behalf of the petitioner that it should be exercised according to the rules of reason and justice and not according to private opinion, according to law and not humour; it is not to be arbitrary, vague and fanciful, but legal and regular; it must be exercised within the limits to which an honest man competent in the discharge of his office must confine himself. In support of this contention reliance is placed on the decision in Sharpe V. Wakefield  A. C. 173. It is lastly contended that the present attempt of the respondent to refuse a license to the petitioner, apart from anything else, is to serve an ulterior motive, viz. , to prevent adulteration of vegetable oil with ghee within the town and islands of Bombay. It is urged that however desirable that object be, it is not within the province of the respondent to take that object into consideration and exercise his discretion with a view to serve that end because that is not provided by the Act, and if there is any defect in the legislation, it is for the. Legislature to amend the law.
Having regard to the general words of discretion contained in Section 394,. Sub-section (4), the burden of proving that the respondent is wrong in his action is on the petitioner.;