Balswarup Goel v. Municipal Board — 1959 DIGILAW 268 (ALL)

JUDGMENT D.S. Mathur, J. - This is a petition under Article 226 of the Constitution of India by Balswarup Goel and his brother, Hira Lal Goel, for the issue of a writ of mandamus, or any other appropriate writ, to direct the Municipal Board, Ghaziabad, district Meerut, through its President, Respondent No. 1, not to enforce the bye-laws (Annexure "A" to the affidavit) framed by the Board to regulate the running of Cinemas within its territorial limits and to prohibit it from demanding or levying any permission fee for running the Cinemas. A request was also made to direct Respondent No. 1 not to implement its resolution dated 11-1-1957, whereby steps were to be taken for enhancement of the fee imposed under the bye-laws. The Petitioners have also made request for the issue of a writ of mandamus to direct the Commissioner, Meerut Division, Meerut, Respondent No. 2, to take steps u/s 301(5) of the U.P. Municipalities Act for rescinding the said bye-laws. 2. The main question for consideration in the present proceeding is whether the Municipal Board, Respondent No. 1, had the power to frame the bye-laws contained in Annexure "A" to the affidavit and if the bye-laws so framed would be effective. If the bye-laws could be framed by the Board and are effective, it shall have the power to increase the amount of fees within permissible limits. A bye-law which is not effective or is against the provisions of the Act can be rescinded by the Commissioner. 3. The Petitioners are proprietors of two cinemas, namely, Manohar Talkies and Mohan Chitralok, both situate within the municipal limits of Ghaziabad, district Meerut. They had obtained licences for running the above Cinemas from the District Magistrate, Meerut, Respondent No. 2 under the provisions of the Cinematograph Act, 1918 (Act II of 1918) read with rules framed under the said Act by the U.P. Government. These licences were renewed from year to year and are still in force. The bye-laws contained in Annexure "A" to the affidavit have not yet been repealed inspite of the suggestion made by the State Government; and the Petitioner have been called upon to pay the fees prescribed therein for running the Cinemas. Prior to 21-12-1945, the prescribed-fee was at the rate of Rs. 5 per year, but it was then enhanced to Rs. 100 per year or Rs. 10 per month or part thereof. Prior to 21-12-1945, the prescribed-fee was at the rate of Rs. 5 per year, but it was then enhanced to Rs. 100 per year or Rs. 10 per month or part thereof. In its meeting held on 11-1-1957, the Respondent-Board passed a resolution to move the District Magistrate for enhancement of the fees, as the fee already imposed was insufficient. 4. The above facts were admitted by the Respondent-Board except for the allegation that it had no right to frame the bye-laws or to impose fees as prescribed therein. In order to meet the argument whether the fee imposed under the bye-laws was a fee or a tax, it was mentioned on behalf of the Respondent-Board that it rendered many services for which the fee had been imposed. It was further pleaded that Petitioner No. 2, namely, Hira Lal Goel, had filed a suit in the Court of Munsif, Ghaziabad, to challenge the validity of the bye-laws being contrary to G.O. No. 3087/XI-47 dated 20-6-1947, but the suit was dismissed. It was thus contended that Petitioner No. 2 at least was bound by this decision and could not reagitate the same matter. In case the writ petition was moved by Hira Lal Goel alone, this point could have been given importance in not excercising the discretion in his favour; but the present petition has been moved by Bal Swarup Goel also, who would not be bound by that decision. If the bye-laws and the resolution are set aside, or are held not to be enforceable not only the Petitioner No. 1 but also owners of all the Cinema Houses will become entitled to the benefit of the order to be passed by this Court. It will, therefore, be proper not to dismiss the petition as far as Hira Lal Goel is concerned on the above preliminary point. 5. The validity and effectiveness of similar bye-laws framed by the Municipal Board of Kanpur were challenged in Civil Misc. Writ Petitions Nos. 242 and 309 of 1934 and Second appeal No. 1746 of 1951, decided on 22-4-1955 and the decision was given against the Board. There is thus an earlier decision of this Court holding that the above bye-laws are ineffective. Writ Petitions Nos. 242 and 309 of 1934 and Second appeal No. 1746 of 1951, decided on 22-4-1955 and the decision was given against the Board. There is thus an earlier decision of this Court holding that the above bye-laws are ineffective. Brother Chowdhry, J., however, observed that the Municipal Board had been given the power to frame such bye-laws, but in view of the provisions contained in the U.P. Cinematograph Rules 1951, the bye-laws could not be enforced by the Municipal Board. I am in respectful agreement with the view expressed in the above cases, though it may be observed that the powers of a Municipal Board to frame bye-laws with regard to the working of Cinemas had not been fully considered. It will be in the interest of the parties to interpret the law and the rules, to clearly lay down the extent to which the Municipal Board can frame bye-laws to regulate the working of Cinema Houses, so that both the Board and the proprietors of Cinemas may know their rights and liabilities. 6. The Cinematograph Act, 1918 (Act No. 11 of 1918) was partially repealed as far as the State of Uttar Pradesh is concerned by a subsequent enactment known as the Cinematograph Act of 1952, Act XXXVII of 1952. It is provided in Section 18 of the Act of 1952 that though the Act of 1918 had been repealed the repeal shall have effect in relation to Part A and Part B States only in so far as the said Act relates to the sanctioning of cinematograph films for exhibition. Under the Act of 1952 the Central Legislature made two kinds of provisions (1) for the certification of films, that is, to certify films which can be exhibited in public places and (2) for the regulation of such exhibitions i.e. licensing of Cinema Houses where an exhibition by means of a cinematograph can be given. The provisions on the first point are contained in Part II of the Act and on the other in Part III of the Act. It was further made clear in Section 1(2) of the Act of 1952 that Parts I, II and IV extended to the whole of India except the States of Jammu and Kashmir and Part III to Part C States only. It was further made clear in Section 1(2) of the Act of 1952 that Parts I, II and IV extended to the whole of India except the States of Jammu and Kashmir and Part III to Part C States only. Parts I and IV contain preliminary provisions, Part I with regard to short title extent and commencement of the Act and the definitions of various terms; while Part IV contains repealing clause. Consequently, as far as the licensing of Cinema Houses within the State of Uttar Pradesh is concerned, it would be governed by the provisions of the Act of 1918 as amended by the State Legislature. 7. The Cinematograph Act, 1918 and also the corresponding Act of 1952 were enacted to provide inter alia for regulating exhibitions by means of cinematographs. Such an object has been expressed in the title and the preamble of the Act. The rule making power of the State Government is contained in Section 9(3) of the Act of 1918 which makes it clear that the Government concerned can make rules to provide for the regulation of cinematograph exhibitions for securing the public safety. The U.P. Legislature amended this section by providing that the State Government can make rules to provide for the fees to be levied for licensing buildings for cinematograph exhibitions and for inspection of electric installations in such buildings. In the U.P. Cinematograph Rules, 1951, a provision has been made on most of the points which could be connected with public safety. Before a licence can be granted or renewed, the building must be of a proper design with suitable seating arrangement and provision for ventilation, sanitation and protection from fire. These are admittedly restrictions which can be imposed for purposes of public safety. Under the Rules the licence can be granted or renewed by the District Magistrate in case the application for a licence or renewal complies with the provisions of the Act and the licensing authority, namely, the District Magistrate, can revoke or suspend the licence granted to a Cinema House within his jurisdiction, if he is satisfied that the licencee is responsible for the breach of one or more of the provisions of the Act or the Rules of 1951 or any condition of the licence. The licence can be revoked or suspended on other grounds also as detailed in the above Rules. The licence can be revoked or suspended on other grounds also as detailed in the above Rules. A perusal of the Rules will make it clear that the State Government have made rules to regulate the issue and renewal of licences for running Cinema Houses, but detailed provision has not been made for regular inspection of such cinemas. Rr. 31 and 37 merely provide for the inspection of electric installation by the Electric Inspector or his representative. The State Government have not framed any rule for the inspection of buildings to be used for cinematograph exhibition from other points of view, namely, sanitation and convenience of the members of the public. The reason for not framing such a rule is not far to seek. An application for a licence under Rule 4 has to be accompanied with a certificate from the Medical Officer of Health having jurisdiction that tie arrangements for sanitation conform to the requirements of the existing rules and also a certificate from the Regional Fire Officer having jurisdiction that the arrangements for fire-fighting appliances provided and the precautions taken against fire conform to the requirements of the existing rules. The words "existing rules" are of a general nature and shall not only cover the rules framed under the Cinematograph Act but also rules duly framed by a competent authority. Medical Officers of Health are attached to Municipal Board-Regional Fire Officers may also be under the control and supervision of the Municipal Board. Whether arrangements for sanitation and fire-fighting appliances conform to the rules or not shall be determined by these two officers in accordance with the rules that may be framed by the State Government and also the rules which may be framed by the Municipal Board. As the Board appears to have the power to lay down what sanitary conditions or which fire fighting appliances should be maintained or provided in Cinema House, the State Government framed no rules on these points and left the supervision of the Cinema House from these aspects at the discretion of the Board and its employees. 8. As the Board appears to have the power to lay down what sanitary conditions or which fire fighting appliances should be maintained or provided in Cinema House, the State Government framed no rules on these points and left the supervision of the Cinema House from these aspects at the discretion of the Board and its employees. 8. A consideration of the provisions of the Cinematograph Act and the Rules framed thereunder will, therefore, show that the licensing of cinemas can be done by the licensing authority in accordance with the rules framed by the State Government and Government servants shall make inspection with regard to such items only for which they have been employed, while regular inspections to ensure that proper sanitation and tire-lighting arrangements have been made and exist in the Cinema House shall remain within the jurisdiction of the Municipal Board and its employees. 9. The bye-laws in question were framed u/s 298(2)H(m) of the U.P. Municipalities Act, No. II of 1916, read with Clause (d) of item J of this sub-section. Clause H(m) gives the power to the Board to make a bye-law to prohibit or regulate with a view to promoting the public safety or convenience any act which occasions or is likely to occasion a public nuisance and for the prohibition or regulation of which no provision is made under this heading. Cinema Houses or running thereof are not by themselves a public nuisance, but it can occasion or is likely to occasion a public nuisance. The term "public nuisance" has not been defined in the U.P. Municipalities Act and for this reason it must be given a meaning as laid down in Section 4(84) of the U.P. General Clauses Act. It is laid down therein that 'public nuisance' shall mean a public nuisance as defined in the IPC. This term has been defined in the IPC in Section 268 as an act or omission which causes any common injury, danger or annoyance to the public or to the people in genera who well or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. People frequenting Cinema Houses can collect on the road and thus cause obstruction and annoyance to passers by. Noise emitting from Cinema Houses can be a nuisance to persons living in that locality. People frequenting Cinema Houses can collect on the road and thus cause obstruction and annoyance to passers by. Noise emitting from Cinema Houses can be a nuisance to persons living in that locality. Insanitary conditions prevailing in Cinemas may also result in causing a public nuisance. When Clause H(m) has been generally worded to cover any act which occasions or is likely to occasion a public nuisance, it will give power to the Municipal Board to prohibit or regulate the running of Cinema Houses with a view to promoting the public safety, or convenience. Bye-laws which can be framed under this clause can to some extent be the same as contained in the U.P. Cinematograph Rules, 1951. When the rules framed by the State Government and the bye-laws of the Board cover the same matter, the natural question for consideration is whether both the rules and the bye-laws can be enforced by the two bodies at the same time, or the bye-laws framed by the Board shall remain in abeyance and shall not be effective for so long as similar rules framed by the State Government are in force. 10. It is a well settled rule of interpretation of statutes that a special Act over-rides a general enactment. There is no reason why a similar rule be not applied to the interpretation of rules or bye-laws framed by two authorities, one of which is a parent body and the other derives in one way a delegated authority. The provisions of the Cinematograph Act and the rules framed thereunder cover a single subject, namely, exhibition of Cinematograph films and for that reason, they can be regarded as a special provision. Clause H(m) of Section 298(2) of the U.P. Municipalities Act is of a general nature and its provisions can be placed in the category of a general provision. On application of the principles applicable to the interpretation of statutes it can be held, as was observed by brother Chowdhry, J. in the writ cases referred to above, that the special rules shall over ride the general rules for so long as the special rules remain in force. 11. On application of the principles applicable to the interpretation of statutes it can be held, as was observed by brother Chowdhry, J. in the writ cases referred to above, that the special rules shall over ride the general rules for so long as the special rules remain in force. 11. To sum up, a correct interpretation of the provisions of the U.P. Municipalities Act and of the Cinematograph Act and the rules framed thereunder is that if rules have been framed by the State Government to prohibit or regulate Cinema Houses, i.e. exhibition of Cinematograph films, with a view to promote public safety or convenience of the members of the public such rules shall over-ride any bye-laws to be framed by the Municipal Board on those points but if the State Government does not frame any rule on any important and material point and leaves it upon a public body like the Municipal Board to make rules or to exercise supervisions on such matters, the Board can make bye-laws on those points. 11. Under the impugned bye-laws, the Municipal Board of Ghaziabad framed rules for the licensing of Cinema Houses and placed many restrictions which are similar to those placed by the State Government under the U.P. Cinematograph Rules, 1951. The Municipal Board also levied a fee for the grant or renewal of licences for running Cinema Houses. It may, however, be mentioned that bye-laws rover not only the exhibition of cinematograph films in Cinema Houses, but also other entertainments or fire-works. In the present proceeding we are not concerned with the validity or enforcement of bye-laws as applicable to such entertainments. For reasons above the Municipal Board of Ghaziabad had no power to make a bye-law that no one could run a Cinema House unless he obtained a licence, obtained sanction or permission of the Board, on payment of the prescribed fees. The Board had, however, the power to make bye-laws to provide for the regular inspection of Cinema Houses and also on allied matters a fee could also be imposed for the grant of licence etc. if the Board made arrangements for, say, fire extinguishing services. It could also impose a fee if it became necessary for the Board to incur extra expenditure on the cleaning of roads or in keeping the locality in a sanitary condition. if the Board made arrangements for, say, fire extinguishing services. It could also impose a fee if it became necessary for the Board to incur extra expenditure on the cleaning of roads or in keeping the locality in a sanitary condition. The Board can also have the power to impose a fee to meet the expenses incurred in making regular inspection of Cinema Houses to ensure that conditions in the cinemas are sanitary and proper fire fighting appliances are maintained in a proper and working condition. The fee so imposed shall be for a municipal service or undertaking provided for the benefit of the proprietors of the Cinema Houses and to ensure their proper running from the point of view of public safety and convenience. 12. In the circumstances when the Municipal Board has the power to make bye-laws on restricted matters only and not on points already covered by the U.P. Cinematograph Rules, 1951, bye-laws if framed by the Board against the rule being laid down by this Court shall not be effective and such bye-laws cannot be enforced, neither to recover the fees, nor to lay down that the Cinemas cannot be run without previously obtaining a licence, sanction or permission under the bye-laws. The present petition must, therefore, be allowed for the simple reason that the impugned bye-laws, so far as Cinema Houses are effected, are on the same points as detailed in the U.P. Cinematograph Rules, 1951. 13. The petition is hereby allowed and it is ordered that bye-laws framed by the Municipal Board of Ghaziabad as contained in Annexure A to the affidavit cannot be enforced as far as Cinemas are concerned with the result that the Respondent-Board cannot recover and is hereby prohibited from levying a fee as laid down therein for running the Cinemas. The Respondent Board is also directed not to implement its resolution dated 11-1-1957. It is made clear that the Board shall have the power to make bye-laws in accordance with the law. 14. It is not necessary to issue a writ against Respondent No. 2, namely, the Commissioner, Meerut Division, Meerut, as the impugned bye-laws regulate and are applicable to not only Cinema Houses but also other public places of entertainment and exhibition.