Bhudevi v. State of U. P. — 1967 DIGILAW 186 (ALL)

JUDGMENT Satish Chandra, J. - The petitioners want that the permission granted by the District Magistrate of Etah, for constructing a cinema building by the third respondent be quashed and for a direction to the District Magistrate to decide the petitioners application for such permission in accordance with the law. 2. It appears that the petitioner are carrying on the business of exhibition of cinema films in the town of Kasganj, and that is the only cinema house in the town. 3. The petitioners wanted to built another cinema hall. For that purpose they purchased a piece.of land in June, 1962 and another piece of land in August. 1962. On 25-8-1962 they made an application for permission to construct a building under rule 3 of the U. P. Cinematograph Rules, 1951. The application was made to the District Magistrate, Etah, who was the licencing authority. Respondent No. 3 had also made a similar application to the District Magistrate. On 5-2-1963 the District Magistrate rejected both the applications. The order stated that because of national emergency it will be difficult to procure huge quantity of building materials which would be needed for constructing such a building. Kasganj is not a growing industrial town, nor a flourishing Mandi. The permission to construct a cinema building hence cannot be granted so long as the national emergency lasts. 4. Against this order the third respondent made a representation or appeal to the State Government. There appears to have been certain objections to the situation of the site proposed by the third respondent. The State Government asked the District Magistrate to make enquiries and report. Certain reports were sent by the District Magistrate. It is stated that under political and personal pressure exerted by the third respondent on the authorities concerned in the State Government, the State Government relaxed the rules and granted exemption to the third respondent. The allegations on this point of mala fides are vague and indiscriminate. They have been denied in the counter-affidavit. At the hearing the learned counsel did not press them. It is, therefore, not necessary to deal with them in detail. 5. Coming to know that the State Government is likely to grant the application of the third respondent the petitioner also filed an appeal to the State Government and prayed that they may also be granted the permission. At the hearing the learned counsel did not press them. It is, therefore, not necessary to deal with them in detail. 5. Coming to know that the State Government is likely to grant the application of the third respondent the petitioner also filed an appeal to the State Government and prayed that they may also be granted the permission. It is stated in the counter-affidavit filed on behalf of the State Government. that the site proposed by the petitioners contravened rule 7 and it was not considered advisable to relax the restrictions of that rule, in the petitioner is case. 6. The site proposed by the third respondent was, on the other hand, a better site. Consequently the District Magistrate was advised to relax the restrictions in the case of the third respondent. It is further stated that the Government acted on the advice given by the District Magistrate in the matter of relaxation of the restrictions under the rules. The Government did not issue any order of relaxation itself. 7. In the counter-affidavit filed on behalf of the District Magistrate it is stated that the Government by a letter of 1-8-1966 informed the District Magistrate that it had no objection to the relaxation of the restrictions contained in rule 7 (2) of the U. P. Cinematograph Rules on the fulfilment of the following conditions: (i) The cinema hall is completely sound proof, (ii) The licence shall erect a suitable buffer wall between the cinema house and the arms and ammunition shop. 8. It is further stated that the Government directed the District Magistrate to reconsider the cases according to the provisions of the Act and the rules because the earlier order of the District Magistrate was passed on consideration of national emergency and not of the provisions of the Act and the rules. The District Magistrate considered the matter and by an order passed on 5-7-1966 rejected the petitioner's application. The petitioners filed an appeal to the State Government on 2-8-1966 which was also dismissed by the State Government. On 14th December, 1966, the District Magistrate informed the third respondent that the building plans of his proposed cinema hall have been approved by the Executive Engineer and that he should obtain the requisite certificate from the Municipal Board and file it. On 9-1-1967 the Municipal Board accorded the requisite permission to the third respondent. 9. On 14th December, 1966, the District Magistrate informed the third respondent that the building plans of his proposed cinema hall have been approved by the Executive Engineer and that he should obtain the requisite certificate from the Municipal Board and file it. On 9-1-1967 the Municipal Board accorded the requisite permission to the third respondent. 9. The order of the State Government dated 1-8-1966 is challenged on the ground that the State Government had no jurisdiction either of its own accord or by way of an appeal or representation, to interfere in the matter, and that in any event, the provisions of rule 7 of the rules could not be relaxed in case of a proposal for appearing the site. In order to appreciate the first submission it will be feasible to read the provisions of the U. P. Cinemas (Regulation) Act, 1955. Section 3 of this Act provides that no person shall give an exhibition by means of a cinematograph elsewhere than in a place licensed under the Act. Section 2 (d) defines the word "place" to include a house, building, tent or other structure and any description of transport whatsoever. Section 5 (1) directs the licensing Authority not to grant a licence under this Act, unless it is satisfied that, the rules made under this Act have been substantially complied with and adequate precautions have been taken in the place, in respect of which the licence is to be given, to provide for the safety of persons attending exhibitions therein. Under sub-sec. (2) a licensing authority is to grant licence subject to these conditions and subject to the control of the State Government and the interest of the general public. Sub-sec. (3) provides for an appeal against the refusal of a licence by the licensing authority to the State Government; and the State Government can make such order in the case as it thinks fit. Section 7 authorises the State Government as well as the licensing authority to suspend, cancel or revoke a license on the grounds mentioned in it. 10. In the matter of grant of a licence under Section 5, the State Government has been given control over the licensing authority. In addition, an appeal lies to it against the decision of a licensing authority refusing to grant a licence. The State Government has an independent power to suspend, cancel or revoke a licence. 10. In the matter of grant of a licence under Section 5, the State Government has been given control over the licensing authority. In addition, an appeal lies to it against the decision of a licensing authority refusing to grant a licence. The State Government has an independent power to suspend, cancel or revoke a licence. The licensing authority thus has to work under the general guidance of the State Government. The controlling power of the State Government is exercisable even before the licensing authority grants a licence because the jurisdiction of the licensing authority to grant a licence is subject to the control of the State Government. 11. The U. P. Cinematograph Rules, 1951, bifurcates the working of the grant of a licence in two stages, in cases where a licence is sought for a building which is not in existence at that time. The rules came into force in January 22, 1951. The first stage is for obtaining an approval for constructing a building for cinema exhibition. Under rule 3 a person desirous of constructing a permanent building to be used for cinematograph exhibition is to submit an application specifying the site on which the proposed building is to be constructed together with a plan and specifications thereof. Under sub-rule (3) of rule 3 the licensing authority, if it is satisfied that the site, plan and specifications fully conform to the rules, shall grant to the applicant a certificate signifying his approval thereto. The second stage commences alter the building has been constructed. Under rule 4 an application for the grant of a new licence is to be made to the licensing authority. The second stage commences alter the building has been constructed. Under rule 4 an application for the grant of a new licence is to be made to the licensing authority. The application is to be accompanied, inter alia, with an order of approval of the plan under rule 3 (1); plan of the seating arrangements for each class separately; a certificate from the Electrical Inspector to Government that the electrical installations conform to the requirements of the existing rules, this certificate is given under rule 5, after an inspection of the building; a certificate from the Medical Officer of Health that the arrangements for sanitation conform to the requirements of the existing rule; this certificate is given after an inspection of the premises under rule 6; and also a certificate from the Regional Fire Officer that the arrangements for firefighting appliances provided and the precautions taken against fire conform to the requirements of the existing rules (rules 16. 17 etc.). Thus the application for a licence has to be made after the plan for the building has been approved and the building has been constructed and certified by the various authorities. 12. Rule 7 inter alia provides that the licence shall not be granted unless the licensing authority is satisfied that the requirements of the rules have been fully complied with. Same is the provision in rule 3 (3) for approving the plan. There also compliance with the rules is essential. Rules for both the stages are the same and are provided in sub-rule (2) of rule 7. Under it no building shall be licensed. if it is situate within a radius of one furlong from any residential institution attached to a recognised educational institution, a public hospital with a large indoor patient ward, or an orphanage containing one hundred or more, inmates, or in any thickly populated exclusively residential area. The determination of what is a hospital, recognised educational residential institution, orphanage or a thickly populated exclusively residential area is to be made by the licensing authority, subject to the General control of the Government. Under the proviso the licencing authority may, with the prior approval of the Government, relax this rule or any part thereof. The second proviso lays down certain matters which the State Government is to take into consideration in relaxing this rule. 13. Under the proviso the licencing authority may, with the prior approval of the Government, relax this rule or any part thereof. The second proviso lays down certain matters which the State Government is to take into consideration in relaxing this rule. 13. It is to be noticed that under rule 7 the State Government directly comes into the picture in the matter of determination of what is a hospital, recognised residential educational institution, orphanage or a thickly populated residential area. Under the proviso the State Government is constituted the sole authority to relax the conditions of this rule because the licensing authority can do it only with the prior approval of the Government. 14. The provisions of the Act deal with the licencing of a place. Section 2 (d) of the Act defines the word "place" which does not include the site. It was for the petitioner urged that the provisions in the Act for granting a licence hence do not relate to the licensing of a site. The State Government has been given a power to control the working of the licensing authority in the matter of granting a licence under the Act. It has also been constituted as an appellate authority against the order refusing to grant a licence. It was urged that the State Government hence has jurisdiction only in the matter of grant of a licence for a place. This jurisdiction hence does not extend to the question of approval of a site. I do not think that this submission is correct or justified. The definition of the word "place" is inclusive. It does not exclude the site. Rule 3 (3) as it stands after its amendment in 1955 specifically refers to the site; it says that the licensing authority may, if it is satisfied that the site, plans and specifications fully conform to the rules, grant to the applicant a certificate signifying his approval thereto. The word "place" in the Act should hence be deemed to include a site to be used for the purpose of cinema building. 15. It was urged that the impugned order of the State Government relaxing the rules and directing the approval of the site was without jurisdiction. The submission, though attractive, does not bear close scrutiny. The Act or the Rules do not directly or indirectly prohibit the construction of any building. 15. It was urged that the impugned order of the State Government relaxing the rules and directing the approval of the site was without jurisdiction. The submission, though attractive, does not bear close scrutiny. The Act or the Rules do not directly or indirectly prohibit the construction of any building. Under this provision no person can be restrained from constructing a building even with the intention of using it as a cinema; but in order to forewarn such intending persons, the rules have provided for the approval of the site as well as the plan of the building. The site also has to conform to the conditions of rule 7. The application for licence has to be accompanied under rule 4, with the order of approval of the plan under rule 3. The process of approval of the site is hence an integral part of the grant of a licence under the Act. If it were not construed to be so, the provisions of rule 3 would be ultra vire6 the rule making power, because in that event they will be outside the Act and will hence not be carrying into effect the provisions of the Act. Such a construction is to be avoided. Intrinsically there is no inconsistency in treating the procedure for approving a site and the plan as a part of the process of the grant of licence under Section 5 of the Act. Provisions of Section 5 will hence govern the proceedings for approval of the site and the plan. The State Government will have the controlling jurisdiction, an appeal will also lie against the decision of the licensing authority refusing approval. The third respondent, therefore, had the right to go to the State Government in appeal. 16. It was urged that the order of the District Magistrate dated 5-2-1963 did not refuse approval. It only postponed consideration for the duration of the national emergency. This was a refusal for the time being and for an indefinite period. Such an order could, in my opinion, be treated as a decision refusing to grant a licence. 17. The State Government hence validly exercised jurisdiction in the matter. Reliance in this connection was placed upon the Supreme Court decision in the case of State of Punjab v. Hari Kishan, A.I.R. 1966 S.C. 1081. Such an order could, in my opinion, be treated as a decision refusing to grant a licence. 17. The State Government hence validly exercised jurisdiction in the matter. Reliance in this connection was placed upon the Supreme Court decision in the case of State of Punjab v. Hari Kishan, A.I.R. 1966 S.C. 1081. There it was held that the State Government cannot oust the licensing authority and usurp its functions so as to entitle itself to deal with all applications for a licence. This case was followed by the Court in Writ Petition No. 1198 of 1966 Ram Agyan Singh v. D.M. Allahabad, decided on 20-3-1967. These cases are inapplicable. In the present case the State Government has not interfered while the matter was pending with the District Magistrate. The District Magistrate had given a decision refusing approval of the site and the plan. 18. It was at the end urged that in proceedings for approval of the site the proviso to rule 7 (2) authorising relaxation will not be attracted. Under rule 3 (3) the approval can be given after the site plans and specifications fully conform to the rules. It was urged that the provisions of rule 3 attracts only those rules which lay down the conditions which have to be complied with, namely, the conditions mentioned in sub-rule (2) of rule 7; but the provision dealing with relaxation of the condition is not imported. I am unable to accept this sub mission. The requirement that the site plan and the specifications should conform to the rules means all the rules on the subject including the restrictions and the exemptions. The whole of rule 7 will be attracted. The question as to what is a hospital, orphanage, thickly populated residential area etc. can be determined subject to the general control of the Government. Similarly, the power to relax the rule will also be available. 19. If this submission advanced for the petitioner is accepted, anomalous results will follow. The power to relax the rules will not be available at the time of approval of the site and the plans. If the approval is refused, no question for an application for a licence under rule 4 can possibly arise, because an application without an order of approval of the plan under rule 3 is not entertainable. The question of granting a licence after relaxing the rules will never arise. If the approval is refused, no question for an application for a licence under rule 4 can possibly arise, because an application without an order of approval of the plan under rule 3 is not entertainable. The question of granting a licence after relaxing the rules will never arise. In my opinion, the power of relaxing the rule is exercisable at the stage of the approval of the site and the plan. 20. For the respondents an attempt was made to show that the State Government did not act at its own initiative or at the instance of the third respondent, but because the licensing authority itself required the approval of the Government in the matter of relaxing the rule on subsequent applications made for approval by the third respondent to the licensing authority. It is unnecessary to consider this submission, because the petition fails on the main point. 21. The initial decision of the licensing authority dated 5-2-1963 refusing the petitioner's application was not approved by the State Government. It directed the authority to reconsider the case. The District Magistrate then rejected it on 5-7-1966 after considering the merits. The State Government dismissed the petitioner's appeal. The Petitioners' application is hence not pending. There is nothing illegal in the second order of the licensing authority. The relief that it be directed to decide the application in accordance with law cannot be granted. In the result, the petition is dismissed with cost. Petition dismissed.