Wanchoo, J. -
(1.)This petition under Art. 32 of the Constitution challenges the constitutionality of S. 39 of the Calcutta Police Act, No. IV of 1866, (hereinafter called the Act). The facts necessary for our purpose are these. On August 11, 1954, the petitioner entered into an agreement with one Haripada Bhowmick, who is respondent No. 3 with respect to an eating house named 'Kalpatoru Cafeteria', situate in No. 2 Chowranghee Road, Calcutta. The petitioner was appointed a contractor by this agreement and was given the exclusive use and occupation of the said eating house upon certain terms and conditions. A licence has to be taken out with reapect to an eating house under S. 39 of the Act. It appears that originally the licence was in the name of Bhowmick, and one of the conditions of the licence was that the eating house should not be sublet without permission of the Commissioner of Police (hereinafter referred to as the Commissioner). On the date of the agreement, Bhowmick held a licence for the eating house, which was to expire on March 31, 1955. It is said that under the agreement the licence was to remain in the name of Bhowmick while the petitioner was to carry on the business as contractor. The petitioner carried on the business from after the date of the agreement and no application for a fresh licence was made by him before March 31, 1955, when the licence in the name of Bhowmick was to expire. It was only on August 8, 1955, that an application for licence was made by the petitioner on behalf and in the name of Bhowmick though the business was continued to be run by him all the time after March 31, 1955. It appears that the application made in the name of Bhowmick was rejected on December 27, 1956; but in the meantime Bhowmick was prosecuted on September 10, 1955, for running the eating house without a licence and was fined on December 12, 1955. Thereafter a notice was issued to Bhowmick on September 7, 1956, to show cause why his application for licence should not be refused inasmuch as he had not applied in time and violated the condition of the licence by sub-letting the eating house to the petitioner. Thereafter the petitioner applied on September 21, 1956, for the issue of a licence in his own name. It may be mentioned that in the meantime there had been disputes between Bhowmick and the petitioner and a suit had been filed by Bhowmick against the petitioner in October 1956 in that connection. It may also be mentioned that though the petitioner applied for the first time on September 21, 1956, for licence he had already been prosecuted in October, 1955, for keeping an eating house without a licence and convicted in November 1955. The application made by the petitioner on September 21, 1956, was eventually rejected on March 30, 1958, though in the meantime the petitioner was all along continuing the business of the eating house without having obtained a licence. After the rejection of his application the petitioner applied to the High Court under Art. 226 of the Constitution challenging the constitutionality of S. 39 and also challenging the order of the Commissioner rejecting his licence on various grounds. This application was dismissed on August 7, 1958. Thereupon the petitioner went up in appeal to a Division Bench of the High Court which was disposed of on March 4, 1959. The Division Bench held S. 39 to be constitutional. It further held that as extraneous matters had been taken into account in rejecting the application of the petitioner for a licence the rejection was not in accordance with law. However, as the period of one year for which a licence is valid under S. 39 had expired in September 1957, and the judgment was being delivered in March 1959, the appeal was dismissed on the ground that that application could not be considered in 1959. Thereupon the petitioner made another application to the Commissioner on March 30, 1959, for the period from April 1, 1959 to March 31, 1960. During all this time the petitioner was carrying on his business as a keeper of the eating house without a licence. This application was found defective and another application was made on May 14, 1959. In the meantime, the petitioner again applied to the High Court on or about May 8, 1959, under Art. 226 of the Constitution in order to compel the Commissioner to issue him a licence or in the alternative to compel him not to prosecute him for keeping an eating house without a licence and for such other orders as the High Court might deem fit to pass. It may be mentioned that day to day prosecution of the petitioner had begum from February 1956 under S. 40 of the Act for continuing to keep an eating house without a licence. This writ application filed in the High Court was withdrawn by the petitioner on May 13, 1959, as his application to the Commissioner of March 30, was defective. On May 30, 1959, the Commissioner rejected the application of the petitioner for a licence on the ground that his antecedents and his present conduct showed that he would not keep good behavior and further that he would not keep good behaviour and further that he would not be able to prevent drunkenness or disorder among the persons frequenting or using the eating house. The petitioner's complaint is that he was not heard before the order rejecting his application was passed. Then on June 15, 1959 the petitioner again applied under Art, 226 of the Constitution to the High Court against the rejection of his application on May 30. On February 11, 1960, the High Court allowed the petitioner to withdraw the application with liberty to move such application as he may be advised before this Court, in case such liberty was necessary. Thereafter the petitioner moved this Court by his present application on February 15, 1960.
(2.)His main contention before us is that S. 39 of the Act confers naked and uncanalised powers on the Commissioner to grant or refuse a licence and that no criteria have been laid down anywhere in the Act to guide the discretion of the Commissioner. Further, no opportunity is provided to an applicant for a licence to be heard either orally or in writing before passing orders on an application for licence; in consequence, the Commissioner has been given completely arbitrary powers either to grant or to refuse a licence and this amounts to an unreasonable restriction on the fundamental right of the petitioner to carry on the trade of eating house keeper. Besides this attack on the constitutionality of S. 39 the petitioner also contends that the order is mala fide and should be struck down on this ground. There are some other grounds in the petition but they have not been pressed before us and it will not be necessary to consider them.
(3.)The first question therefore that falls for consideration is whether S. 39 of the Act is a reasonable restriction within the meaning of Art. 19(6) on the fundamental right to practise any profession or to carry on any occupation, trade or business contained in Art. 19 (1)(g). Section 39 is in these terms:-
"The Commissioner of Police may, at his discretion from time to time, grant licences to the keepers of such houses or places of public resort and entertainment as aforesaid for which no licence as is specified in the Bengal Excise Act, 1909, is required upon such conditions, to be inserted in every such licence, as he, with the sanction of the said State Government from time to time shall order, for securing the good behavior of the keepers of the said houses or places of public resort or entertainment, and the prevention of drunkenness and disorder among the persons frequenting or using the same; and the said licences may be granted by the said Commissioner, for any time not exceeding one year."
Learned counsel for the petitioner contends that the language of S. 39 shows that an absolute discretion, untrammelled by any considerations, is conferred on the Commissioner by this section and there is nothing either in the section or anywhere in the Act to guide the discretion of the Commissioner in the matter of granting such licences. Therefore, according to learned counsel, the power conferred on the Commissioner is arbitrary and unguided and such power is necessarily to be struck down on the ground that it cannot be a reasonable restriction on the fundamental right to carry on trade. There is no doubt that if the section empowers the Commissioner to grant or refuse a licence without any criteria to guide him, it would be an unreasonable restriction on the right to carry on trade. We have therefore to see whether there is any guidance either in the section or in the Act to regulate the exercise of discretion of the Commissioner in the matter of granting such licences. In this connection it must be remembered that the Act was passed in 1866 when there were no fundamental rights and we cannot expect that meticulousness of language which should be found in statutes passed after January 26, 1950. It may also be mentioned that the Act replaced two earlier Acts, namely, Act XIII of 1856 and XLVIII of 1860. The Act of 1860 also contained provisions for licences for eating houses in Ss. 11 and 12 thereof, though the language of those sections was somewhat different, Section 11 laid down that in the towns of Calcutta, Madras and Bombay no eating house shall be kept without licence and provided for a penalty for the same. Section 12 then laid down that the Commissioner shall from time to time grant licences to keepers of such houses upon conditions for securing the good behaviour of the keepers of the said houses and for the prevention of drunkenness and disorder among the persons frequenting or using the same. The language of S. 39, however, is different inasmuch as it provides that the Commissioner may at his discretion from time to time grant licences. The Act of 1860 was interpreted by the Bombay High Court in Rustom Jamshed Irani vs. Hartley Kennedy, ILR 26 Bom 396 as giving no discretion to the Commissioner to refuse a licence if the person applying for the licence was willing to fulfil the conditions imposed thereunder. In the case of Calcutta, however, S. 39 made a change in the language contained in the earlier act giving discretion to the Commissioner in the matter of grant of licences. The question therefore is whether the word "discretion" introduced by S. 39 means an absolute and unguided discretion and would therefore now become an unreasonable restriction on the fundamental right of a citizen to carry on the trade of keeping an eating house. There is no doubt, as we have already indicated, that the section does not say as many of the provisions of laws passed after January 26, 1950, do that the Commissioner would grant licence on certain specified considerations. The contention on behalf of the petitioner is that the first part of S. 39 confers an absolute discretion on the Commissioner to grant or to refuse a licence just as he pleases and that the second part of the section merely provides for certain conditions to be imposed in case the Commissioner pleases to grant a licence. We are however of opinion that when we are judging a law passed in 1866 to decide whether it satisfies the test of constitutionality based on Art. 19(1) (g) and Art. 19(6), we should take the section as a whole and see whether on a fair reading of the section it can be said that there is no guidance for the Commissioner in the matter of granting or refusing licences and his power is arbitrary. If such guidance can be found on a fair reading of the section, there would be no reason for striking it down simply because it has not been worded in a manner which would show immediately that considerations arising from the provisions of Art. 19(1)(g) and Art. 19(6) were in mind - naturally those considerations could not be in the mind of the legislature in 1866. We have therefore to see whether an Act passed before the Constitution came into force can be reasonably and fairly read as containing guidance in the matter of licensing, as in this case. If it can be fairly and reasonably read to contain guidance it should not be struck down. If, on the other hand, on a fair and reasonable construction of the section as a whole, we come to the conclusion that there is no guidance in it and the discretion vested in the Commissioner is absolute and arbitrary it will have to be struck down.