Raja Ram Jaiswal v. State of Uttar Pradesh — 1981 DIGILAW 740 (ALL)

JUDGMENT Satish Chandra, C.J. - This writ petition is primarily directed against the order of the State Government of February 15, 1980, allowing the petitioner's appeal but remanding the matter to the District Magistrate, Allahabad, for consideration of the petitioner's application for grant of the licence under the Uttar Pradesh Cinemas (Regulations) Act, 1955, for exhibiting cinema films. 2. The petitioners are the owners of premises No. 26/30. Sahitya Sammelan Marg, Allahabad. In 1971 they applied to the District Magistrate, Alluhabad for permission under the U. P. Cinematograph Rules, 1951 for the construction of a permanent building for the use of cinematograph exhibition. The Hindi Sahitya Sammelan, Allahahad filed objections. They also made representations to the State Government against the petitioners' application. The State Government directed the District Magistrate Allahabad to look into the matter carefully and to see whether or not it would be in public interest to grant permission. The District Magistrate, Allahabad, enquired into the matter and, on March 28, 1972, passed an order holding that the construction of a cinema building by the petitioners in the aforesaid premises will not be contrary to public interest. He accorded permission to the petitioners to construct the cinema building within two years. The petitioners state that they started the construction and completed the cinema building by March, 1975 at a cost of over Rs. 60,00,000/-. The cinema building was fully air-conditioned and sound proof and had a seating capacity of 920. 3. On January 31, 1974, the State Government issued a notification under S. 4(1) of the Land Acquisition Act in respect of premises No. 26/30, i.e. the land on which the cinema building was being constructed. Notice of this notification was served on the petitioners on March 31, 1974. The petitioners filed a writ petition No. 1932 of 1974 in this Court and obtained an order staying further proceedings in pursuance of the said notification. Subsequently the State Government withdrew the notification under S. 4(1) and on Jan. 30, 1975 the writ petition was dismissed as having become infructuous. 4. Six days later, namely, on Feb. 6, 1975, another notification under S. 4(1) of the land Acquisition Act was issued for acquiring this very land for the same purpose, namely, extension of the Hindi Sangrahalaya of the Hindi Sahitya Sammelan Building. Soon thereafter a notification under S. 6 of the Land Acquisition Act was also issued. 5. 4. Six days later, namely, on Feb. 6, 1975, another notification under S. 4(1) of the land Acquisition Act was issued for acquiring this very land for the same purpose, namely, extension of the Hindi Sangrahalaya of the Hindi Sahitya Sammelan Building. Soon thereafter a notification under S. 6 of the Land Acquisition Act was also issued. 5. The petitioners filed another writ petition No. 3171 of 1975 to challenge the validity of these notifications. 6. During the pendency of this writ petition, the petitioners applied to the District Magistrate, Allahabad for the grant of a licence for exhibiting cinema films in the cinema building. The District Magistrate referred this application to the State Government and required directions whether he should decide it or should await disposal of the land acquisition proceedings and the writ petition. It appears that on Oct. 18, 1979, the State Government, after making enquiries, directed the District Magistrate to grant a provisional licence to the petitioners. The District Magistrate, however, instead of doing so again referred the matter to the Government stating that in his opinion a licence should not be granted during the pendency of the writ petition relating to land acquisition proceedings. 7. The matter thus again went into the court of the State Government. 8. On Dec. 7, 1979, this Court decided the writ petition. The same was allowed and the notifications were quashed. The petitioner, filed a copy of the judgment before the State Government. On Dec. 13, 1979, the State Government informed the petitioners to contact the District Magistrate again for the grant of licence. The petitioners made another representation to the District Magistrate on Dec. 18, 1979 requesting him to grant he requisite licence. On Dec. 22, 1979, the District Magistrate, however, passed an order refusing to grant the licence. Aggrieved, the petitioners went up to the State Government in appeal. The State Government directed the District Magistrate to send his comments on the petitioners' appeal. After considering the comments furnished by the District Magistrate, the State Government held that the various grounds mentioned by the District Magistrate in his comments were untenable. It allowed the appeal, set aside the order of the District Magistrate but sent the matter back to him for consideration of the question whether it would be in the public interest to grant a cinema licence to the petitioners. 9. It allowed the appeal, set aside the order of the District Magistrate but sent the matter back to him for consideration of the question whether it would be in the public interest to grant a cinema licence to the petitioners. 9. The District Magistrate fixed May 3, 1980 for disposal of the application. Meanwhile on or about April 15, 1980 the petitioners filed the present writ petition. They challenged the validity of the State Government's remand order. Their case was that, in the circumstances, the State Government ought to have granted the licence itself. The District Magistrate had fixed May 3, 1980 for disposal of the application. On that day, the petitioners appeared before the District Magistrate. The Magistrate, however, informed the petitioners that he would decide the question of public interest after hearing all concerned persons. On May 12 and 13, 1980, a public notice was published in the newspapers `Bharat' and `Amrit Prabhat' inviting objections on May 15, 1980. The petitioners on May 13, 1980, filed an application objecting to this novel procedure of public notice adopted by the District Magistrate. However on May 15, 1980, only one objection was filed and this was by the Hindi Sahitya Sammelan. Feeling that the District Magistrate was bent upon rejecting the petitioners' application, the petitioners approached this Court and obtained an interim order. The District Magistrate hence did not proceed further in the matter. 10. Mr. Raja Ram Agarwal, appearing for the petitioners, submitted : (i) that Rule 7(2) was invalid; (ii) that the question of public interest having been enquired into at the time of the grant of permission to construct the building, could not be reopened subsequently, and (iii) that the procedure adopted by the District Magistrate on the question of public interest was discriminatory. 11. In order to appreciate these submissions, let us look at the facts a little more closely. The petitioners had applied for permission to build a cinema building in 1971. The District Magistrate referred that application to the State Government. The State Government on Dec. 16, 1971 passed an order stating that under the U. P. Cinematograph Act, 1952, the District Magistrate as the Prescribed Authority himself has to take the decision whether permission to construct a cinema house on any particular place be given or not. Reference was made to U. P. Cinematograph Rules, especially Rule 7. The State Government on Dec. 16, 1971 passed an order stating that under the U. P. Cinematograph Act, 1952, the District Magistrate as the Prescribed Authority himself has to take the decision whether permission to construct a cinema house on any particular place be given or not. Reference was made to U. P. Cinematograph Rules, especially Rule 7. It was emphasised that if the site of the cinema building was within the distance specified under R. 7(2) of educational institutions or hospitals where patients resided then after obtaining the prior permission of the State Government, the District Magistrate could refuse to grant the licence in public interest. The District Magistrate was directed to enquire whether the proposed cinema building violated R. 7(2). It may be recalled that the Hindi Sahitya Saminelan had filed an objection. The State Government directed the District Magistrate to enquire whether the Hindi Sahitya Sammelan was an educational institution. What kind of activity was being conducted by it? Does it impart education to anyone so that it may be called an educational institution? If the District Magistrate thinks that for any other reason the grant of permission will not be in public interest then he should obtain the orders of the State Government in that respect. The District Magistrate was asked to dispose of the application after taking into consideration the aforesaid matters. 12. On March 24, 1972, the District Magistrate, Allahabad, addressed a communication to the State Government. He stated that in view of R. 7 (2) of the U. P. Cinematograph Rules, 1951, Hindi Sahitya Sammelan can have no objection to the construction of a cinema building on the site in question. Hindi Sahitya Sammelan was not an educational institution. It has no hostel or a general hospital. Hindi Sahitya Sammelan is a Society which primarily carries on the work of propagating Hindi. No educational classes are held in it. It is not an educational institution like any school, college or university. The District Magistrate went on to state that he has considered all aspects of the matter but he has not been able to find any reason for which it may be said that construction of the cinema building on the site in question could be considered to be against public interest. No question of public interest was involved in the construction of the cinema building on the proposed site. No question of public interest was involved in the construction of the cinema building on the proposed site. He went on to state that the proposed cinema building appears to be a big beautiful building which will be completely air-conditioned and sound proof. Granting permission for its construction will add to the revenue of the State in the form of entertainment tax. Considering all these aspects, it was feasible to grant to the petitioners permission to construct the cinema building. He intimated to the State Government that he was accordingly granting the permission to the petitioners. After this communication to the State Government, the District Magistrate on March 28, 1972 granted the requisite permission to the petitioners to construct the cinema building. 13. The Hindi Sahitya Sammelan, however, kept on interfering. It appears to have prevailed upon the State Government to acquire the premises on which the cinema building was being constructed. The State Government issued a notification under S. 4 (1) of the Land Acquisition Act on January 31, 1974 when the construction of the cinema building had gone on for nearly two years and was nearing completion. This notification was, however, withdrawn by the State Government but another notification was issued on February 6, 1975 which was quashed by the High Court by its judgment dated Dec. 7, 1979. Meanwhile the petitioners on March 26, 1974 that is to say, -two days before the expiry of the two years' period of limitation prescribed by the District Magistrate for completion of the construction of the cinema building, applied to him for extension of time. This application remained pending till July 25, 1975. On that date, the District Magistrate passed an order refusing to extend time in the ground that land acquisition proceedings for acquiring the premises were pending in the form of a writ petition before the High Court. 14 . In May, 1979, the petitioners made an application to the District Magistrate for the grant of a cine.na licence under the U. P. Cinemas (Regulations) Act, 1955 and the Rules. The District Magistrate promptly referred this application to the State Government; even though the State Government directed the District Magistrate to grant to the petitioners the provisional licence, the District Magistrate demurred. The District Magistrate promptly referred this application to the State Government; even though the State Government directed the District Magistrate to grant to the petitioners the provisional licence, the District Magistrate demurred. He again represented to the State Government that in his opinion licence should not be granted during the pendency of the writ petition challenging the land acquisition proceedings. 15. The land acquisition proceedings were, however, quashed by the High Court on Dec. 7, 1979. A copy of the judgment was filed by the petitioners before the District Magistrate as well as before the State Government. The State Government on Dec. 13, 1979 directed the petitioners to contact the District Magistrate again in connection with the application for grant of the lincence. On December 18, 1979, the petitioner made an application before the District Magistrate that the cinema building is complete in all respects, all the concerned departments have inspected it and reported no objection indicating that the rules have been fully complied with. It prayed the District Magistrate to grant the requisite licence. On Dec. 22, 1979, the District Magistrate Allahabad passed an order rejecting the petitioners' application for the grant of licence. Thereupon the petitioner went up to the State Government in appeal under S. 5 (3) of the U. P. Cinemas (Regulations) Act, 1955. The State Government asked the District Magistrate to submit his comments on the detailed memorandum of appeal filed by the petitioners. The District Magistrate submitted his comments. 16. In its order of Feb. 15, 1980 disposing of the petitioners' appeal, the State Government stated that the District Magistrate in his comments has given the following reasons for refusing the lincence : (i) the cinema building has violated the rules because the cinema hall is within 100 yards of two educational institutions; (ii) under the rules there is no provision for granting the licence after imposing conditions; (iii) the appellants' contention that the District Magistrate has refused the licence on inimical grounds is incorrect and the petitioners should be hauled up for it, (iv) the licence has been refused in public interest and on considerations of public peace and order; (v) the construction of cinema building was not completed within the prescribed period of time; (vi) if the licence is granted there is apprehension that breach of peace might take place. 17. 17. The State Government in its order stated that the grounds on which the District Magistrate has chosen to refuse the licence to the petitioner do not fall within the purview of the relevant rules. It also held that rules have not, in any manner, been violated. 18. The State Government went on to hold that in view of the conditions mentioned in amended R. 7 (2), the District Magistrate could refuse the licence for sufficient reasons on the ground that on a particular site the situation of a cinema building may not be in the public interest. But, for such refusal, the condition precedent is that the District Magistrate should obtain the prior approval of the State Government. It was also observed that the view of the District Magistrate that licence could not be granted by imposing conditions is incorrect. Under S. 6 (2) of the U. P. Cinematograph Act, 1955 or S. 5 (2) of the U. P. Cinemas (Regulations) Act 3 of 1956) a licence could well be granted after imposing such conditions as may be considered necessary. The Government did not accept the District Magistrate's contention that the cinema building was within 100 yards of educational institutions. Accordingly, the State Government cancelled the District Magistrate's order refusing to grant the licence. It allowed the appeal and sent the matter back to the District Magistrate with a direction that it may reconsider the application of the petitioners after giving them an opportunity of hearing (which was not given earlier) and then to pass a reasonable and valid order. It was also directed that if in the public interest the prior permission of the State Government was considered necessary then he should refer the matter to the State Government through the Commissioner. 19. The learned Standing Counsel submitted that the writ petition was premature. The State Government has remanded the matter to the District Magistrate for consideration of the question whether the situation of the cinema building was or was not in the public interest. The District Magistrate should, therefore, be permitted to proceed with the matter and take a decision. We are, however, not inclined to dispose of the writ petition on this short ground. The District Magistrate should, therefore, be permitted to proceed with the matter and take a decision. We are, however, not inclined to dispose of the writ petition on this short ground. We think that, in the circumstances, we should dispose of the matter one way or the other because we have gained the impression that neither the State Government nor the District Magistrate is eager to decide the application one way or the other. They have sent the matter back and forth many times. Initially the application was made to the District Magistrate but he instead of applying his mind and deciding the matter referred the application to the State Government. The State Government, on October 18, 1979, directed the District Magistrate to grant a provisional licence subject to the result of the writ petition in which land acquisition proceedings were challenged. The District Magistrate never the less did not grant the provisional licence but reiterated his view that during the pendency of the writ petition the licence should not be granted. The matter again went back to the State Government. Meanwhile the land acquisition writ petition was allowed. The petitioners filed copies of the judgment before the State Government as well as the District Magistrate. The State Government again directed the petitioners to approach the District Magistrate for disposal of the application for the grant of a licence. This time the District Magistrate quietly dismissed the application without either affording the petitioners an opportunity of hearing or giving any reasoned order. The petitioners again went up in appeal. The State Government called for the comments of the District Magistrate. It received detailed comments which showed that the District Magistrate was of the opinion that, inter alia, because of an apprehension of breach of peace it was not in the public interest to grant the licence. Yet the State Government took shelter behind a technical plea that before coming to the conclusion and rejecting the application on the ground of public interest, the District Magistrate should have taken the prior permission of the State Government. After holding that all the rules have been complied with and there was no violation of any of the rules or provisions of the Act. But the State Government again sent the matter back to the District Magistrate. The District Magistrate this time adopted the novel procedure of having public hearings. After holding that all the rules have been complied with and there was no violation of any of the rules or provisions of the Act. But the State Government again sent the matter back to the District Magistrate. The District Magistrate this time adopted the novel procedure of having public hearings. The petitioners have been sent back and forth enough number of times. 20. The position is that the question of compliance of the rules and whether the situation of the site of the cinema building was in the interest of general public had been examined thread-bare before the permission to construct the building was granted in 1972. It was again examined by the State Government and it was held that the reasons for which the District Magistrate refused the licence do not fall within the purview of any of the provisions of the U. P. Cinematograph Rules and no rule has been violated. But under the amended R. 7 (2), if the Licensing Authority for sufficient reasons thinks that the site of the cinema building was not in the public interest then he could refuse the licence. 21. It will be remembered that the District Magistrate had in his comments mentioned six grounds out of which four were found by the State Government to be having no merit. Grounds Nos. 4 and 6 mentioned the question of peace and order. Ground No. 4 says that licence has been refused keeping in mind the public interest and law and order situation. Ground No. 6 mentioned that if the licence was granted then maintenance of peace was likely to be endangered. The question, therefore, becomes considerably narrowed down. The question of law submitted by the learned counsel for the petitioner was that problems of law and order or apprehensions of breach of peace were immaterial and irrelevant while considering the question whether it was in the public interest to grant the licence. Learned counsel for the petitioners submitted that under S. 6 of the U. P. Cinemas (Regulation) Act, 1955, the State Government or the District Magistrate has power to suspend exhibition of films if he is of the opinion that any film which is being publicly exhibited is likely to canse the breach of peace. Learned counsel for the petitioners submitted that under S. 6 of the U. P. Cinemas (Regulation) Act, 1955, the State Government or the District Magistrate has power to suspend exhibition of films if he is of the opinion that any film which is being publicly exhibited is likely to canse the breach of peace. Such an order of suspension could last for a period of two months subject to the State Government extending it, S. 7 of the Act gives power to suspend, revoke and cancel a licence. It sayed that a licence granted' under S. 5 may be cancelled or revoked in the public interest, Sub-s. (1-A) gives particular grounds for the licence being cancelled or revoked. The grounds are that the licence was obtained through fraud or misrepresentation, or that there was a mistake as to an essential matter at the time of grant of licence or that the licencee has been guilty of the breach of the provisions of the rules or conditions of the licence or that the licencee has been convicted of any offence, or that on account of any change occurring in the situation of the place of the licencee, the continuance of the licencee is considered prejudicial to decency or morality. 22. It will thus be seen that a licence cannot generally be revoked or cancelled on the ground of apprehension of breach of peace. On that ground a licence can be suspended temporarily under S. 6. Danger to breach of peace is never a permanent phase. It is a passing or transient feature in the life of a city. Sub-s. (1-A) of S. 7, however, opens with the phrase "in particular and without prejudice to the generality of the power conferred by sub-s (1), a licence may be cancelled or revoked under that sub-section on any of the following grounds namely,........." 23. Under S. 7 (1) a licence can be revoked or cancelled in the public interest. It may hence be argued that the particular instances mentioned in sub-s. (1-A) of S. 7 are not exhaustive and a licence may be revoked or cancelled on other grounds relevant to public interest. Assuming this to be so, a licence may be cancelled or revoked on the ground of apprehension of breach of peace in cases not dealt with under S. 6. Assuming this to be so, a licence may be cancelled or revoked on the ground of apprehension of breach of peace in cases not dealt with under S. 6. S. 6 gives specific power to suspend a licence temporarily on the ground that there is likelihood of breach of peace. On such a ground a licence cannot be cancelled or revoked. Even if it be assumed that breach of peace can conceivably be a ground for cancellation or revocation then the apprehension of breach of peace must be established to be of such a widespread and permanent nature which cannot be dealt with under S. 6 by suspension of a licence. 24. What are the facts? In his comments, the District Magistrate gives a mere apprehension, From the version of the comments of the District Magistrate mentioned in the State Government's order it does not appear that there was any apprehension of breach of peace in the locality as a permanent feature. In this connection, the observations of the Andhra Pradesh High Court in Neelam Wines, Hyderabad v. Commissioner of Police, Chatta Bazar, Hyderabad, AIR 1981 Andh Pra 191, are apposite. There an application for the grant of licence for running a wine shop was refused from law and order point of a view. Dealing with it, the Court observed (at p. 195) : - "We are not oblivious to the possibility of some unruly elements gathering around the ldine shop and disturbing peace. But we hold that it is not normally permissible to the State to prevent a person from doing his lawful business or carrying on his lawful activity on the basis that some other person or persons might be provoked to disturb peace, because of those lawful acts. Where such a situation develops or is likely to develop the clear duty of the police would be to afford protection to the lawful activities and to put down those who are the law breakers. The police by totally prohibiting the carrying on both the legal activity as well as the illegal activity would only bring about peace of the graveyard. That cannot be the purpose of the Act." Certainly that is not the purpose of the U. P. Cinematograph Act, 1952 (or U. P. Cinemas (Regulations) Act (3 of 1956)). The police by totally prohibiting the carrying on both the legal activity as well as the illegal activity would only bring about peace of the graveyard. That cannot be the purpose of the Act." Certainly that is not the purpose of the U. P. Cinematograph Act, 1952 (or U. P. Cinemas (Regulations) Act (3 of 1956)). In paragraph 9 of the counter affidavit filed on behalf of the State Government, it has been averred that the expression "public interest" is well known to the legal world and it cannot be said that it provides any unfettered and unguided discretion. The general object of the Act itself, namely, to regulate the exhibition of cinematograph films within a residential locality consistent with the social and cultural requirements and ideals, provides enough guidelines for exercise of power. It cannot be doubted that the exhibition of cinematograph films has a social, moral and cultural impact on the neighbourhood. It is further stated that `public interest' has to be judged taking into account the interest of the public in general of that town and the persons of that locality for ascertaining that it is in the public interest to grant licence under S. 5 read with R. 7 of the Rules. These being the general objects of the Act, the question that a licence should be refused on the ground that there was likelihood of breach of peace would arise in rarest of `the rare cases, if at all. The public interest for purposes of granting the licence confines itself to the interest of the public of the town or of the locality. There is not even a whisper in the counter affidavit filed either by the State Government or the District Magistrate that there was a genuine and real apprehension of a permanent and widespread breach of peace if licence was to be granted to the petitioners. It may be remembered that the question of public interest was thoroughly examined at the time of the grant of permission to construct the building. It has also to be kept in mind that a person who invests a huge sum after being given the permission to construct after considering every aspect including public interest, acquires some sort of a right to the grant of the licence for showing the films in the building so constructed. He cannot be treated as a mere begger asking for charity. He cannot be treated as a mere begger asking for charity. There is no allegation that the petitioners will show such films as are likely to cause breach of peace or that the antecedents of the petitioners are such that by their very presence they are likely to cause breach of peace in the locality. In the circumstances, the apprehension of large scale continuing of peace appears to us to be a figment of imagination devoid of any reality. 25. There seems to be no doubt that the relevant rules having been complied with there was no objection with regard to the electrical requirements or ventilation or sanitation, fire precautions or the like. The question of public interest in respect of the location of the site of the cinema building had been gone into earlier and has been gone into by the State Government on this occasion while considering the question of the grant of licence. Tho only outstanding thing was apprehension of breach of peace. That, as shown above, was an illusory apprehension. 26. In the counter affidavit filed on behalf of the District Magistrate it has been stated that many representations were received by him. In pursuance of the public notice, though the petitioners have stated that only one objection against the grant was received and that was by the Hindi Sahitya Sammelan. The District Magistrate had not chosen to clarify the position. In the rejoinder, the gave have stated that the various petition representations were in favour of the grant of the licence to the petitioners. 27. At one stage. the learned Standing Counsel doubted whether the question of public interest was required to be gone into at the time of grant of permission to construct the building. Rule 3 deals with application for constructing a building. Sub-rule (3) thereof requires the Licensing Authority to be satisfied that the site plans and the specifications fully conform to the rules before granting the requisite approval to the construction of the building. In Smt. Bhudevi v. State of U.P., 1967 All L J 703 it was held that the process of approval of the site is an integral part of the grant of a licence under the U. P. Cinematograph Act and that the requirement of R. 3(3) that the site plans and the specifications fully conform to the rules means all the rules on the subject. The whole of R. 7 would be attracted. Rule 7 specifically requires consideration of the question of public interest. Thus it is not correct to say that in 1972 there was no legal requirement to consider the question of public interest. 28. The learned Standing Counsel also emphasised that originally the permission was granted to complete the building in two years under R. 3(3). Rule 3(3) requires that the period within which construction shall be completed was also to be stated. Two years' period was so stated. Before the expiry of the period of two years the petitioners on March 26, 1974 applied for extension of time for completing the constructions fully. This application remained pending for more than a year. It was rejected on July 25, 1975 on the ground that a writ petition challenging the land acquisition proceedings was pending. In that writ petition an interim order staying the proceedings has been passed by the High Court and so the District Magistrate was powerless to do anything. Meanwhile the petitioners stated that the District Magistrate continued to give to the petitioners permits for cement, steel, etc. to enable it to complete the building. The building was completed by March, 1975 long before July 25, 1975 when the application for extension of time was formally rejected. 29. In our opinion, the relevant part of R. 3(3) is directory. In the circumstances, the petitioners did not commit any violation of rules in completing the building by March 1975 instead of March, 1974. 30. The State Government was justified in its view that the District Magistrate can impose such conditions as it may think reasonable. Sub-s. (2) of S. 5 provides :- "(2) Subject to the foregoing provisions of this section and to the control of the State Government and the interests of the general public, the licensing authority may grant licences under this Act on such terms and conditions and subject to such restrictions as it may determine and on payment of such fees as may be prescribed." Thus, the placing of conditions and restrictions is inherent to the grant of a licence. In this view of the matter we do not think it fit to deal with the other points raised on behalf of the petitioner. 31. In the result, the petition succeeds and is allowed. The impugned order of the State Government dated February 15th 1980 is modified. In this view of the matter we do not think it fit to deal with the other points raised on behalf of the petitioner. 31. In the result, the petition succeeds and is allowed. The impugned order of the State Government dated February 15th 1980 is modified. The District Magistrate, Allahabad, is directed to forthwith grant to the petitioners the requisite licence subject to reasonable conditions and restrictions. In the circumstances, the parties will bear their own costs.