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1961 DIGILAW 164 (KER)

Prabhakaran v. Sankaranarayana Iyer

1961-06-16

ANNA CHANDY, P.GOVINDA MENON

body1961
Judgment :- 1. The Executive Authority of the Ettumanur Panchayat prosecuted the accused who is the proprietor of the Kailas Picture Palace for failure to take out a licence as provided in S.6 of the Travancore-Cochin Places of Public Resort Act, VIII of 1951, an offence punishable under S.13. It was admitted that no licence was taken and that the cinema was conducted. The defence plea was that having taken out necessary permission under the Kerala Cinemas (Regulation) Act - Act XXXII of 1958 - there is no need for a separate licence under S.3 of the Places of Public Resort Act and that S.6 of Act XXXII of 1958 specifically excludes the operation of the provisions of the Places of Public Resort Act. The learned Magistrate upheld the contention and acquitted the accused. The Panchayat after having obtained special leave has come up in appeal. The appeal has been referred to the Division Bench as the question involved is one of general importance. 2. The question that arises for determination is whether a separate licence under the Places of Public Resort Act is necessary. The Kerala Cinemas (Regulation) Act of 1958 was enacted to provide for the regulation of exhibitions by means of cinematograph. S.6 provides that: "(1) Any person who intends (a) to use any place for the exhibition of cinematograph films; or (b) to use any site for constructing a building thereon for the exhibition of cinematograph films; or (c) to construct or reconstruct any building for such exhibition; or (d) to install any machinery in any place where cinematograph exhibitions are proposed to be given, shall make an application in writing to the licensing authority for permission therefor, together with such particulars as may be prescribed, and any provision contained in the enactments specified in the schedule as in force in any part of the State, or in the rules made under any of them, in so far as it relates to any of the matters specified above, shall not apply to any application made under this section." S.10 provides for penalty for any owner or person in charge of a cinematograph using the same or allowing it to be used and it also provides penalty for any owner or occupier of any place permitting that place to be used in contravention of the provisions of the Act or the rules made thereunder. So for the use of a cinematograph in any place, permission has got to be obtained from the licensing authority under S.6. 3. We might in this connection usefully compare the provisions of Madras Cinemas (Regulation) Act, IX of 1955 which had been followed in the Kerala Act When Act IX of 1955 was originally enacted its provisions regarding the approval of the site were to be applied conjointly with the provisions contained in several other enactments including the Madras Places of Public Resort Act, 1888. In that situation a person desiring to exhibit a film in a theatre had to obtain a licence from the appropriate authority under the Places of Public Resort Act in relation to the places where the films were to be exhibited. This led to delay and more than that inconvenience to the applicants for licence and occasionally want of co-ordination among the several authorities. The legislature remedied the situation by introducing a new section, S.SA in the -Madras Act IX of 1955 by the amending Act, Act XXI of 1956 S.SA runs: 11(1) Any person who intends to install any (d) machinery in any place where cinematograph exhibitions are proposed to be given, shall make an application in writing to the licensing authority for permission therefor, together with such particulars as may be prescribed, and any provision contained in the enactments specified below or in the rules made under any of them in so far as it relates to any of the matters specified above shall not apply to any application made under this section: (1) The Madras Places of Public Resort Act, 1888: ................................................................................................................... (2) The licensing authority shall thereupon, after consulting such authority or officer as may be prescribed, grant or refuse permission and the provisions of S.S, 8 and 9 relating to licences shall, so far as may be, apply to permission under this section." S. 7 of the Madras Places of Public Resort Act, 1888 enacts: "If the authority is satisfied (a) that the enclosed place or building may safely be used for the purpose of public resort or entertainment proposed; (b) that no objection, arising from its situation, ownership, or the purpose proposed, exists, he shall give to the applicant a written licence, signed by him, specifying the enclosure or building and the purpose for which it is to be used. Such licence shall be in such form and subject to such fee and conditions as the State Government may from time to time by rule direct. If the authority is not satisfied as aforesaid, he may refuse to grant a licence recording his reasons for refusal in writing.' By reason of the proviso to S.SA the provisions of the Places of Public Resort Act in so for as the licensing provisions regarding the site are concerned ceased to be applicable in so far as the licence for exhibition of cinematograph films were concerned. 4. But the Places of Public Resort Act contained other provisions and there is nothing in both the Madras and the Kerala Acts which either impliedly or expressly repealed those provisions. A proviso should not be interpreted so as to have greater effect than strict construction of the proviso renders necessary. The Act of the legislature is to be construed according to its plain meaning. The legislature has not said that the entire Act is repealed. Possibly they never thought about it and the ingenious construction sought to be placed on the clause would be contrary to their intention. When such is not the clear intention of the Legislature, courts should not attempt to arrive at the intention by any reasoning. The objects of the two statutes are altogether distinct. One is only to regulate the places and the other is for protection of the health and comfort of the pubic who frequent the place. Therefore both provisions may well stand together and one is not a repeal of or incongruous with the other. 5. Reference was made to the decision in T.J. Joseph v. Municipal Council, Palai [1960 KLT. 46]. There the question was whether S.286 and 287 of the Travancore District Municipalities Act of 1116 in respect of the provision for cart-stands including bus-stand was impliedly repealed by S.72 of the T. C. Motor Vehicles Act, 1125, which Act was enacted as the preamble shows in order to provide a uniform law relating to motor vehicles and it was held that to the extent that S.286 and 287 militate against such uniformity they should be considered as having been repealed by implication. This decision can be of no assistance to the petitioner in this case. 6. Reliance was also placed on an unreported decision of the Madras High Court in Writ Petition 1002 of 1959. This decision can be of no assistance to the petitioner in this case. 6. Reliance was also placed on an unreported decision of the Madras High Court in Writ Petition 1002 of 1959. There, His Lordship Rajagopala Ayyangar, was considering the validity of R.13 of the Madras Cinemas (Regulation) Act 9 of 1955. The question whether the entire provisions in the Madras Places of Public Resort Act were repealed had never come up for consideration and his Lordship had only to consider S.7 of the Madras Places of Public Resort Act regarding the approval of the site and stated that by reason of S.5A of the Madras Cinemas Regulation Act the provisions of S.7 of the Madras Places of Public Resort Act ceased to be applicable So, that decision cannot be taken as an authority for the position that the entire Act has been repealed. 7. In the case in Corporation of Calcutta v. Monarch Bioscope Co. (AIR. 1936 Cal. 145) a similar question arose whether a person who had obtained a licence under the Cinematograph Act, 1918 from the Commissioner of Police is bound to take a further licence from the Calcutta Corporation under S.391 of the Calcutta Municipal Act, S.391 is in these terms: "No person shall, without or otherwise than in conformity with the terms of a licence granted by the Corporation in the behalf, keep open any theatre, circus or other similar place of public resort, recreation or amusement." Ghose, J., repelled the contention and observed: "It was urged that the Cinematograph Act of 1918 is a complete Act and that as it provides for the safety of the public no further action is called for by the Corporation. To this the reply is that the Cinematograph Act is an all India Act and applies to Cinematograph shows exhibited at any time or place within British India and the chief object of the Act is to prevent the showing of unlicensed cinematograph films and further to have proper safeguard against fire. For this purpose, no one may open a cinematograph show at any place without any licence under the Cinematograph Act of 1918. But this will not necessarily take away the power of the Calcutta Corporation under S.391. For this purpose, no one may open a cinematograph show at any place without any licence under the Cinematograph Act of 1918. But this will not necessarily take away the power of the Calcutta Corporation under S.391. It should be observed that the business of Municipal Corporation is not only to secure the safety of the public but also to secure their comfort and convenience; Whether in fact a poor performer should be bound to take licence both under the Cinematograph Act and under the Calcutta Municipal Act is a matter for the high authorities to determine. As the law now stands the plaintiffs were under obligation to take a licence from the Corporation." We are in respectful agreement with the views expressed in the above cafe and we are of opinion that licence has got to be taken under the Places of Public Resort Act even though the place has been licenced under the Kerala Cinemas (Regulation) Act. 8. To the same effect is the decision in The Attorney-General v. Lockwood [152 English Reports 160], where the keeper of a beer-shop, licensed under 1 Will. 4, C. 64, & 4 & 5 Will. 4, C. 84, was liable to the penalties imposed by 56 Geo. 3, C. 58, S.2, for having in his possession any of the prohibited articles therein specified. It was held that there was no implied repeal. 9. What is stated in the proviso to S.6 of the Kerala Cinemas (Regulation) Act is that the provisions contained in the other enactments specified in the schedule regarding the matters specified in S.6 shall not apply to any applications made under S.6. In the schedule is included among the other enactments the T.C. Places of Public Resort Act - Act VIII of 1951. A reference to the enactments in the schedule would show that for the construction or reconstruction of any building or for installation of any machinery application has got to be made under those enactments. Now since provision is made in the Kerala Cinemas (Regulation) Act for the very same purpose what S.6 states is that there is no need to apply again under those enactments, because the purpose served is the same. Emphasis is to be laid on the words "regarding the matter specified in S.6." 10. Now since provision is made in the Kerala Cinemas (Regulation) Act for the very same purpose what S.6 states is that there is no need to apply again under those enactments, because the purpose served is the same. Emphasis is to be laid on the words "regarding the matter specified in S.6." 10. Therefore S.6 will not have the effect of repealing the other provisions contained in the Places of Public Resort Act which were enacted to provide for an altogether different purpose, namely the inspection of places of public resort and entertainment. The rules framed under S.14 of the Places of Public Resort Act would go to show that rules have been framed not only for the construction of the buildings, but also for regulating the health, comfort and convenience of the persons who visit such places of entertainments. R.6 to 17, and 20 to 23 may with advantage be referred to in this connection. All these rules are enacted for a distinctly different purpose than what was provided under the Kerala Cinemas (Regulation) Act and in no way could it be said that those provisions have been repealed by S.6. 11. The order of the learned Magistrate acquitting the accused on the ground that S.6 of Act XXXII of 1958 has repealed all the provisions of the Places of Public Resort Act and that there was no need for getting a licence under the P. P. R. Act is not correct and the order of acquittal has, therefore, to be set aside. It is argued that as the case had been disposed of on this preliminary ground the accused was not able to put forward his other contentions and that the case may go back to the lower court for disposal. We agree. The result is, the order of acquittal is set aside and the case is sent back to the trial court for fresh disposal.