K. S. GOPALA RAO v. STATE OF MYSORE — 1973 DIGILAW 323 (KAR)

( 1 ) THESE four petitions can be disposed of by a common order as the question of law and fact arising axe common to all of them. They are directed against orders made by the District Magistrate, bangalore District, in MAG (2) 252, 232 and 223 of 71-72 and MAG (2) 32/72-73. By those orders the applications of the petitioners for the grant of ' No objection certificates' (NOC for short) enabling the running of touring cinemas in Bangalore District, had all been rejected on the basis of rule 107 of the Rules framed under the Mysore Cinemas (Regulation) Act, 1964. The question of law arising in all these petitions is whether Rule 107 of the Mysore Cinemas (Regulation) Rules of 1971, (hereinafter referred to as Cinema Rules), is constitutionally valid in the context of Arts. 14 and 19 (1) (g) of the Constitution. The relevant Rule reads thus :" Restriction on the grant of licence.-N0 licence shall be granted to any touring cinema in any place where there is a permanent cinema theatre : provided that licence may be granted to one touring cinema in any place with a population exceeding fifteen thqusand and if there is only one permanent cinema theatre in such place. Explanation: For the purpose of this sub-rule 'place' means an area within a radius of three miles from the site on which the permanent cinema theatre is located. " ( 2 ) THERE are no special provisions for the licensing of touring cinemas in Cinemas (Regulation) Act, 1964. In regard to their licensing, provision has been made in Chap. XI of the Cinema Rules. Rule 88 thereof has made provision for the application of certain rules governing the grant of noc's in case of permanent cinemas, to cases of tqurist cinemas also. It is relevant to set qut Rule 27 (2) governing permanent cinemas also for the purpose of reference and comparison in the context of a contention that a similar provision could have been made in the case of touring cinemas also. This Rule has not been specified in Rule 88, making it applicable to the latter class of cinemas. The said Rule reads thus :" (2) The number of cinemas to be permitted in any area shall be determined on Hie basis of one cinema for every fifteen thousand population or a fraction there of exceeding seven thqusand five hundred. This Rule has not been specified in Rule 88, making it applicable to the latter class of cinemas. The said Rule reads thus :" (2) The number of cinemas to be permitted in any area shall be determined on Hie basis of one cinema for every fifteen thousand population or a fraction there of exceeding seven thqusand five hundred. Explanation :-For the purposes of this sub-rule 'area,' means the area coming within the jurisdiction of a loeal authority in case of urban centres having a population of ten thousand and above; and in other cases including villages, an area within a radius of eight kilo metres from the centre of that local authority where a cinema is proposed to be located excluding the population of urban centres, if any, coming within the radius of the said eight kilo metres. " ( 3 ) THE petitioners' applications to run touring cinemas have all been rejected almost exclusively on the ground that the camp sites involved therein were all situated at places lying in an area within a radius of three miles from the site on which a permanent cinema theatre and a touring cinema are already located. , and therefore, clearly barred under Rule 107 of the Cinema Rules, which forbids the grant of more than one 'noc' in such circumstances. Aggrieved by these orders of rejection, the petitioners have approached this Court challenging the constitutionally of the said rule as aforesaid. ( 4 ) ON behalf of the petitioners, it is contended that the right to run a touring cinema is a fundamental right guaranteed under Art. 19 (1) (g) of the Constitution, and therefore, the restrictions on the exercise of such right imposed by Rule 107 in question, in order to seek the protection of art. 19 (6) of the Constitution, must strictly satisfy the test of reasonableness and public interest as enjoined therein. The restrictions envisaged under the said Rule do not satisfy either of the said tests. In otheer words, they are unreasonable and do not subserve public interest, and therefore clearly violative of Art. 19 (1) (g) of the Constitution. Since for the same reasons it becomes arbitrary, it also infringes Art. 14 of the Constitution. In this behalf reliance has been placed on several decided cases, cited before me, which I shall briefly advert to later. Since for the same reasons it becomes arbitrary, it also infringes Art. 14 of the Constitution. In this behalf reliance has been placed on several decided cases, cited before me, which I shall briefly advert to later. ( 5 ) ON behalf of the State, in the counter filed, it has been contended that in view of the proclamation of emergency, the petitioners would not be entitled to invoke the aid of Art. 19 (1) (g) of the Constitution. But it may at once be noted here that this point was not seriously pressed or argued at the Bar. I, therefore, do not propose to examine the same in the course of this order. It is also contended generally that this Rule has been conceived in public interest, in that the health and safety of the public have been the predominant factors taken into account in the framing of it. Reliance in this regard has been placed on a Bench decision of the High court at Madras. ( 6 ) BEFORE adverting to the main point that has arisen for consideration, it is convenient to refer to some of the principles touching the question on hand with reference to the decided cases cited on behalf of the parties. In Salinath v. District Magistrate, 1965 1 Mys. L. J. 337. this Court has ruled that the right to operate a cinema is a fundamental right guaranteed under Art. l9 (1) (g) of the Constitution and all that a law could do is to impose reasonable restrictions on such a right. ( 7 ) THE Supreme Court in the case of Narendra Kumar v. Union of India, AIR. 1960 SC. 430. has observed that the 'restrictions' contemplated in Arts. 19 (5) and 19 (6) would include prohibition also. With regard to the application of the test of reasonableness it has observed in para 19 of the said report thus :" (19) In applying the test of reasonableness, the Court has to consider the question in the back-ground of the facts and circumstances under which the order was made, taking into account the nature of the evil that was sought to be remedied by such law, the ratio of the harm caused to individual citizens by the proposed remedy, to the beneficial effect reasonably expected to result to, the general public. It will also be necessary to consider in that connection whether the restraint caused by the law is more than was necessary in the interests of the general public. " ( 8 ) IN Maneklal Chotalal v. M. G. Hokwana, AIR. 1967 SC. 1373. the Supreme Court in the context of the application of Art. 14 and Art. 19, has further stated the position in paragraph 40 of the above report thus :"the principles to be borne in mind in applying Arts. 14 and 19 of the Constitution are now well settled. A fundamental right to acquire, hold and dispose of property can be controlled by the State only by making a law imposing, in the interest of general public, reasonable restrictions on the exercise of the said right. Such restrictions on the exercise of a fundamenal right shall not be arbitrary, or excessive, or beyond what is required in the interest of the general public. The reasonableness of a restriction shall be tested both from the substantive and procedural aspects. If an uncontrolled or unguided power is conferred, without any reasonable and proper standards or limits being laid down in the enactment the statute may be challenged as discriminatory. " ( 9 ) THE next case relied on is also of the Supreme Court and chat of harakchand v. Union of India, AIR. 1970 SC. 1453. In paragraph 16 of the above report this is what has been observed :" It is necessary to emphasise that the principle which underlies the structure of the rights guaranteed under Art. 19 of the Constitution is the principle of balancing of the need for individual liberty with the need for social control in order that the freedoms guaranteed to the individual subserve the larger public interests. It would follow that the reasonableness of the restrictions imposed under the impugned Act would have to be judged by the magnitude of the evil which it is the purpose of the restraints to curb or eliminate. "i shall now turn to the cases wherein the validity of certain rules or instructions having the force of law concerning the exercise of the right to run touring cinemas had directly arisen for consideration. ( 10 ) IN the case of Rasdeep Touring Talkies v. District Magistrate, AIR. 1967 Pun. 219. "i shall now turn to the cases wherein the validity of certain rules or instructions having the force of law concerning the exercise of the right to run touring cinemas had directly arisen for consideration. ( 10 ) IN the case of Rasdeep Touring Talkies v. District Magistrate, AIR. 1967 Pun. 219. the punjab High Court was concerned with a question of the constitutional validity at the following rule : " A licence to a thuring cinema to graph shall only be granted for a place where there is no " permanent cinema,". Explanation :-for the purpose of this sub-rule, the expression 'place' shall mean the area within two miles of territorial limits of the village or town in which a permanent cinema is situated. " a learned single Judge of the Court found in substance that (1) a separate classification of permanent cinemas and touring cinemas is not discriminatory within the meaning of Art. 14 of the Constitution; (2) if the rationale behind the rule impugned is to afford protection to a permanent cinema owner, it would not be reasonable; (3) the object of statutory interference in the business of cinematograph is to 'safeguard the interests of health and public safety'. On these and other findings the Court declared the rule reproduced above as constitutionally invalid. The only difference of substance that I see between the Punjab rule and the one concerned in this case (Rule 107) is that the present rule has provided for the grant of licence for one touring cinema, in case the population exceeds fifteen thousand. This distinguishable feature, in my opinion, ought not to make any difference to the application of the principles to the present case. ( 11 ) THE last case is the one relied on behalf of the State. It is of the Madras high Court in Vallinayagam v. State of Madras, AIR. 1952 Mad. 528. . The facts of that case were as follows: The State Government on 5-5-1950 and 11-11-1950 issued two orders whereby certain instructions were conveyed to the District Magistrates bearing on the question of grant of licences to touring cinemas. In the first of the orders the Licensing Authorities were instructed to restrict the number cf touring cinemas in places where there were permanent cinemas in order to prevent unhealthy competition and to ensure public safety. In the first of the orders the Licensing Authorities were instructed to restrict the number cf touring cinemas in places where there were permanent cinemas in order to prevent unhealthy competition and to ensure public safety. The Licensing Authorities were inter alia, directed that for places with a population over 50,000 no touring cinema should be allowed within a distance of three miles from the nearest permanent cinema theatre. By the later order, the Government further instructed the Authorities not to grant a licence to a touring cinema within three miles of a place with a population of over 50,000 even if there was no permanent cinema as the intention of the Government was to encourage construction of permanent theatres The validity of these instructions was questioned on the ground that it was violative of Art. 19 (1) (g) of the Constitution. Rajamannar, CJ. , speaking for the Bench and after referring to a decision of the u. S. Court in Herbia v. New York, 1934 291 U. S. 502. has observed, notwithstanding the mention of the object underlying such restrictions, thus :"in our opinion, the instructions contained in the two government Orders contain restrictions which are reasonable and in the interest of the general public. It is not difficult to perceive that the said restrictions are in the interests of the safety and health of the general public and designed to prevent unhealthy competition which itself indirectly would have deleterious influence on the general public. " ( 12 ) THE above enunciation no doubt fully supports the stand taken on behalf of the State. The rule with which we are concerned in this case, if anything, is not so drastic as the instructions dealt with by the Madras high Court in the said case. But, if I may say so with all respect to the learned Judges, there are not any clear reasons given in support of the aforesaid conclusion. In this view I am not inclined to follow the said decision. ( 13 ) I shall now proceed to examine the rule impugned, which has been reproduced earlier, in the light of the principles laid down by the Supreme court and referred to earlier. The first part of Rule 107 provides that no licence for a touring cinema shall be granted in any place where there is a permanent cinema theatre. ( 13 ) I shall now proceed to examine the rule impugned, which has been reproduced earlier, in the light of the principles laid down by the Supreme court and referred to earlier. The first part of Rule 107 provides that no licence for a touring cinema shall be granted in any place where there is a permanent cinema theatre. The proviso, however, makes an exception and provides for the grant of licence for only one touring cinema at a place with a population exceeding 15,000, but haying only one permanent cmema. There is an explanation which says that the wold 'place' occurring in the said rule means an 'area' within a radius of three miles from the site of a permanent theatre. It follows, therefore, that if within that area there is more than one permanent cinema theatre which is not ah "impossibility having regard to the terms of Rule 27 (2) earlier reproduced, no licence for a touring cinema could be granted at all. It is also obvious that if the population of the 'place' is less than 15,000 and the place has a permanent theatre, no touring cinema can be licensed. 'the further conclusion is that whatever be the population in excess of 15,000 specified in the rule, then also no licence for a second touring cinema could be granted. It is on account of the situation last envisaged that the rule has been challenged. It is to be seen that an area of 3 miles radius is sufficiently large and it is conceivable as in the instant case that the population therein might far exceed 15,000, and far that matter may exceed that number many times over in urbanised localities and areas located on the fringes of large tewns and cities. Once faced With such a situation, it is highly unreasonable to limit the grant of licences for touring cinemas as in Rule 107- In this context, it may not be out of place to take note of the corresponding provisions governing thq permanent cinemas that is Rule 27 (2) eaffter reproduced. it is clear there from that the restriction regarding such cinemas has been correlated to population, and population only. It is provided therein that the number of permanent cinemas to be permitted shall be determined on the bais of one cinema for every 15000 population or a fraction thereof exceeding 7,500. it is clear there from that the restriction regarding such cinemas has been correlated to population, and population only. It is provided therein that the number of permanent cinemas to be permitted shall be determined on the bais of one cinema for every 15000 population or a fraction thereof exceeding 7,500. Such a criterion has not been adopted under Rule 107. I say so only by way of comparison, as it cannot be said that sueh separate provision in regard to permanent and toaring cinemas would be discriminatory as the differences existing between them are such as would render their separate classification reasonable, no such question of course has arisen in this case. ( 14 ) IT must be remembered that what is sought to be enforced by the petitioners is their fundamental right. The stress of the argument is not so much on the prohibition of such touring cinema at places with a population of less than 15,000 and with a permanent theatre existing. But if the population exceeds 15,000 many times over such a prohibition or restriction becomes unreasonable. It is in this sense that the impugned rule operates as an unreason able restriction on the persons carrying on the business of touring cinimas thus falling outside the protective umbrella of' Art. l9 (6) of the Constitution. On this accant it cannot he doubted that the fromers of the rule were entitled to take into account the interets of the public generally, particularly those concerning their health and safety. I fail to see how such interests are not so well served if more than one touring cinema is permitted in such a yast area as is covered by a circle of 3 miles radius, especially when it is possible to show that the population is Of the order of several times the15. 000. limit mentioned in the rule in question. It seems to me that the criterion of population followed in rule 27 (2) could with advantage have been adopted in Rule 107 also. ( 15 ) ONCE Rule 107 is out of the way, as in my opinion it must, the licensing authority will be free to limit the number of cinemas to be permitted, in accordance with the provisions of S. 7 of the Cinema (Regulation) 'act. ( 15 ) ONCE Rule 107 is out of the way, as in my opinion it must, the licensing authority will be free to limit the number of cinemas to be permitted, in accordance with the provisions of S. 7 of the Cinema (Regulation) 'act. It is not as though such cinema operators would be free to exercise their fundamental right at any place of their choice indiscriminately. Any reasonable action taken by such Authority pursuant to the above provision may not ordinarily be open to any serious abjection. For all these reasons, I find myself in agreement with the ratio of the decision of the Punjab High Court in the case of Rasdeep Touring Talkies (5) referred earlier. I am also of the view that the principles applied therein are equally applicable to the case on hand. The following passages in the said case may be usefully referred to :"even, other wise, it is clear from a reference to the provisions of the Central Act, the Punjab Act and the Punjab Rules that the object of statutory interference in the business of exhibition of cinematograph is at least two-fold. Firstly and mainly the object" is to safeguard the interests of health and public safety. "any rules framed by the appropriate authorities for attaining the abovementioned and other auxiliary objects of this class of legislation would be reasonable, even if they impose restrictions on the normal fundamental right guaranteed under Art. 19 (1) (g) of the Constitution to carry on any occpuation, trade or business. But it appeals that there is no rational connection between the objects of the Central Act and the Punjab Act or even the Punjab Rules and loking to the possible economic loss to a person who has set up a permanent cinema, still there seems to be no other basis for providing a rule of the type which is impugned in these cases. ( 16 ) I, therefore, hold that Rule 107 of the Mysore Cinemas (Regulation) rules, 1971, infringes Arts. 14 and 19 (1) (g) of the Constitution and therefore invalid and unenforceable. As a result of this discussion, the petitions deserve to succeed and are accordingly allowed. The impugned orders of the District Magistrate bangalore District, are hereby set aside. ( 16 ) I, therefore, hold that Rule 107 of the Mysore Cinemas (Regulation) rules, 1971, infringes Arts. 14 and 19 (1) (g) of the Constitution and therefore invalid and unenforceable. As a result of this discussion, the petitions deserve to succeed and are accordingly allowed. The impugned orders of the District Magistrate bangalore District, are hereby set aside. The District Magistrate is directed to dispose of the petitioners' applications afresh in accordance with law and without reference to the restrictions imposed by Rule 107 of the cinema Rules. There will be no order as to costs. --- *** --- .