MANOHAR BONADE v. DISTRICT MAGISTRATE — 1989 DIGILAW 1 (KAR)

RAJASEKHARA MURTHY, J. ( 1 ) THE petitioner is a licencee under the karnataka Exhibition of Films on Television screen through Video Cassette Recorder (Regulation) Rules, 1984. ( 2 ) ON 27-12-1988 at about 11. 00 P. M. ,the circle inspector of Police, Davanagere, found, on a surprise check, that the petitioner was exhibiting obscene films and submitted a report about the petitioner exhibiting absence films in his video parlour to the Superintendent of Police, Chitradurga and recommended for suspension of the licence issued to the petitioner. The District magistrate (Deputy Commissioner), chitradurga took action on the basis of the report of the Superintendent of Police and suspended the licence with effect from 24-1-1989. The District Magistrate's order dated - 24-1-89 (Annexure 'b') is reproduced below :- This order of the District Magistrate is challenged in this Writ Petition. ( 3 ) IT is seen from the order dated 2-1-1989 - (Annexure-'a') made by the District magistrate, that the licence had been regranted to the petitioner upto 31-3-1989 subject to the usual conditions as detailed in the original - licence and Special Condition of the licence. The petitioner has sought for a Writ of certiorari to quash the said order of suspension of the licence passed by the respondent on various grounds. ( 4 ) IT is argued by Sri C. N. Kamath, learned Counsel for the petitioner that the order of suspension is without jurisdiction and ultravires of the powers of the District magistrate. Reliance is placed in support of this argument on the provisions of Sections 16 and 17 of the Karnataka Cinemas (Regulation) Act, 1964. ('the Act' ). ( 5 ) SRI Kamath has strenuously contended that the District Magistrate has no power to revoke or suspend the licence unless the holder of licence has been convicted of an offence referred to in Section 16 of the Act or for the other offences referred to in Section 17. Sri Kamath has also relied upon two decisions of this Court reported in - 1980 (2) kar. LJ. 389 (Venkateswara Talkies v District magistrate) and 1980 (2) Kar. LJ. 392 (C shivanna Goud v District Magistrate.) He has also relied upon the two unreported decisions of this Court in W. P. . No. 6802/88 sheetal Video Mandir v District Magistrate and W. P. . No. 12765/88. LJ. 389 (Venkateswara Talkies v District magistrate) and 1980 (2) Kar. LJ. 392 (C shivanna Goud v District Magistrate.) He has also relied upon the two unreported decisions of this Court in W. P. . No. 6802/88 sheetal Video Mandir v District Magistrate and W. P. . No. 12765/88. Shanthala Video Parlour v District Magistrate ( 6 ) I have carefully gone through the decisions relied upon by Sri Kamath. In the first case reported in 1980 (2) Kar. LJ. 389 supra, (Venkateswara Talkies v District magistrate) the District Magistrate had issued a show-cause notice under Section 17 of the Act as to why the licence should not be revoked under Section 17 of the Act since the petitioner therein was a chronic evader of tax and was also a defaulter under the entertainment Tax Act, 1958. ( 7 ) THIS Court (MPC J) held, that the District magistrate gets jurisdiction to take action under Section 17 of the Act only in a case where a licencee is convicted under Section 7 of the Cinematograph Act, 1952 or section 16 of the Karnataka Cinemas (Regulations) Act, 1964 or under Section 12 or compounded an offence under Section 13 of the Karnataka - Entertainments Tax Act. On the facts of the case, his Lordship held that in the absence of a conviction as envisaged under Section 17, the District magistrate cannot assume jurisdiction to revoke the licence issued under the Act. ( 8 ) IN the case reported in 1980 (2) Kar. LJ. 392, (C. Shivanna Goud v District Magistrate), the order made by the District Magistrate suspending the licence under Section 17 of the Act, was challenged. Action was taken by the District Magistrate in the said case on the basis of a report of the Assistant Commissioner about certain omissions and commissions in the running of the touring - cinema. The petitioner in that case was fined rs. 1,000/- under Section 16 of the Act and was also called upon to pay a sum of rs. 3,09,556-50 being the tax which the petitioner was found liable to pay in respect of unpermitted seats during certain period which was detected to have been evaded. The petitioner in that case was fined rs. 1,000/- under Section 16 of the Act and was also called upon to pay a sum of rs. 3,09,556-50 being the tax which the petitioner was found liable to pay in respect of unpermitted seats during certain period which was detected to have been evaded. ( 9 ) IT was contended on behalf of the District magistrate in that case that the suspension of the licence was sustainable in law since the petitioner had violated Clause 15 of the conditions of licence. ( 10 ) HIS Lordship (KSP J) on an examination of the provisions of Section 17 of the Act which empowers the District Magistrate to suspend or revoke a licence, held, that such a power can be exercised by the District magistrate only in case of a conviction in a criminal Court and not otherwise. His lordship also left-open the question whether the District Magistrate could independently examine any other violation of conditions of licence and take action either to suspend or revoke a licence. It was, therefore, held, on the facts of the said case that the District magistrate's order made under Section 17 of the Act could not be sustained and was, therefore, quashed. Reliance placed by the government Pleader on Condition No. 15 of the licence was also rejected having regard to the view taken by the learned (KSP J), in that case. ( 11 ) THE reason for rejecting the said contention contained in para-7 of the order is reproduced below:-"7. Condition No. 15 of the licence granted to a licensee in the form prescribed by Government under the Act, cannot enlarge the power conferred by section 17 of the Act and has to be read as only effectuating the object of the Act. A clause in the form prescribed by government cannot enlarge the power conferred by the Act. In this view, the reliance placed on Clause 15 to sustain the action has no merit. " ( 12 ) IN the third case - (W. P. . No. 6802/88) (Shanthala Video Parlour v District magistrate) in more or less a similar situation as in the present case, this Court (SAH J), held, that the petitioner was entitled to the regrant of the licence having regard to the provisions of Section 16 of the Act which provides for penalties for the contraventions referred to therein. No. 6802/88) (Shanthala Video Parlour v District magistrate) in more or less a similar situation as in the present case, this Court (SAH J), held, that the petitioner was entitled to the regrant of the licence having regard to the provisions of Section 16 of the Act which provides for penalties for the contraventions referred to therein. This Court, therefore, issued a Mandamus to the District Magistrate to consider regrant of the licence, since on facts, his Lordship observed that the petitioner had not suffered a conviction for any of the contraventions referred to in Section 16 and therefore held that there was no impediment for the District Magistrate to consider the petitioner's application for regrant of the licence. ( 13 ) IN the last of the cases in W. P. . No. 12765/88 referred to by Sri Kamath (disposed of by me), I have taken the same view. ( 14 ) RELIANCE was placed by Sri Dattu, the learned Government Pleader in that case on the provisions of Section 16 (2) of the Act, which, according to him, empower the licensing Authority to suspend the licence pending the result of the prosecution. ( 15 ) THAT was also a case where the licence - holder was caught while exhibiting obscene - films. Having regard to the provisions of section 16 (2) I held that the District magistrate cannot invoke the power of suspension pending the result of the prosecution, unless there is a repetition of the offence during the said period. It was also suggested in the course of the order that there is a lacuna in the Act and that the Government should consider amending the provisions of section 16 (2) of the Act in order to empower the District Magistrates to suspend the licence without waiting for a conviction and to be exercised in cases not covered by Section 16 (2) of the Act. ( 16 ) SRI Shahapur, learned Government pleader tells me that nothing has been done by the Government since 1980 to bring a suitable amendment to the Act empowering the District Magistrates to suspend the licence. ( 16 ) SRI Shahapur, learned Government pleader tells me that nothing has been done by the Government since 1980 to bring a suitable amendment to the Act empowering the District Magistrates to suspend the licence. In a case like this where the licence holders exhibit obscene films continue to do so with impunity taking advantage of the lacuna in the Act, ( 17 ) SRI Shahapur has strongly relied upon clause 13 in the conditions of licence granted to permanent cinemas in Form 'f and Clause 15 in the licence issued to a touring cinema in Form 'g'. The said condition of licence which is common to both is reproduced below:-"15. The licence shall be subject to cancellation or suspension for breach of any of these conditions or of the special conditions specified on the reverse, or for violating of any law in force governing or regulating amusements and prescribing payment of taxes. " ( 18 ) IT is his contention that the licence is granted subject to the conditions laid down therein and the power to suspend or revoke for the breach of any of these conditions or of the special condition, is vested in the licencing Authority under the Rules governing such grants. ( 19 ) IN the light of these submissions of Sri shahapur, my view taken earlier requires reconsideration. It, therefore, becomes necessary to examine the scheme of the Act and the Rules under which licences are granted. ( 20 ) UNDER Section 19 (2) of the Act, the government is empowered to frame Rules to impose conditions and restrictions subject to which a licence may be granted under the act. No doubt, Section 16 also provides for taking action to punish the licence holder for any of the contraventions of the provisions of the Act or the Rules or any of the conditions and restrictions upon or subject to which any licence or permission has been granted under the Act. ( 21 ) THE proceedings contemplated under section 16 culminate in imposition of fine on conviction for any of the contraventions referred to therein. Such fine which may be levied may extend to Rs. 1,000/- or in the case of a continuing offence with a further fine which may extend to Rs. 100/- for each day during which the offence continues. Such fine which may be levied may extend to Rs. 1,000/- or in the case of a continuing offence with a further fine which may extend to Rs. 100/- for each day during which the offence continues. As already observed, sub-section (2) of Section 16 empowers the District Magistrate to suspend the licence only after prosecution is commenced and if there is a repetition of the offence during that period. ( 22 ) IN reply to these contentions of the learned Government Pleader, it is strenuously contended on behalf of the petitioner that under the scheme of the Act and the Rules, there is no other provision under the Act except section 17 under which the District magistrate is empowered to suspend or revoke a licence, or suspending only in the circumstances referred to in Section 16 (2 ). It is also argued by Sri Kamath that the District magistrate cannot invoke the conditions of licence to suspend a licence muchless revoke it, since this power is specifically covered by Sections 16 and 17 and that the rules under which the conditions of licence are imposed cannot override the statute and any such exercise of power by the District magistrate would be ultravires and in excess of his powers conferred under the Act. ( 23 ) IT is not, for the first time, that the power of the District Magistrate to cancel or suspend the licence has conie up for consideration before this Court. It was observed by this Court, as long back as 1980 that the district Magistrate can suspend or revoke the licence only in a case where the licence-holder suffers a conviction in a Criminal court and not otherwise. His Lordship kspj observed in Shivanna Gowda's case, referred to above, as to why the Legislature has so restricted the power of the District magistrate was not a matter for the Court to examine. It was further observed that having regard to the provisions of the Act which restricts the power of suspension by the District magistrate within the parameters of sections 16 and 17 of the Act, the District magistrate cannot ignore the same and revoke or suspend a licence granted to a licencee under the Act. ( 24 ) HAVING regard to the observations made by this Court earlier and also by me in sheetha! Video Case (W. P. . ( 24 ) HAVING regard to the observations made by this Court earlier and also by me in sheetha! Video Case (W. P. . No. 12765/88) (Sheetal Video Mandir v District Magistrate) the argument of the Government Pleader that the District Magistrate has independent powers under the Rules to suspend the licence by virtue of the terms of the grant itself, requires to be examined and the question as to District Magistrate's power to suspend which he derives under the conditions of licence, requires careful consideration. This power, which the District magistrate can legitimately exercise under the Rules and by virtue of the power conferred on him while granting the licence, should be understood as a power independent of his power to revoke or suspend on a conviction in a Criminal Court. ( 25 ) SECTIONS 16 and 17 are the penal provisions to obtain a conviction in a criminal Court for any of the offences referred to in Section 16 and 17. On such a conviction being ordered by the Criminal court, the District Magistrate may revoke the licence or suspend it for such period as he may think fit. Sub- section (2) of Section 17 provides an appeal against such order made by the District Magistrate. ( 26 ) THE point that, therefore, arises for decision is, whether the District Magistrate can suspend the licence in exercise of his powers conferred on him under the Rules and under the conditions of licence subject to which the licence is granted? One of the conditions of the licence (Condition No. 2) is that the licencee shall not exhibit or permit to be exhibited any film other than the film certified for public exhibition by the authority constituted under Section 4 of the cinematograph Act, 1952. The licence is granted by the Licensing Authority subject to the provisions of the Karnataka Cinemas (Regulations) Act and the Rules and the conditions specifically imposed while granting the licence. ( 27 ) 'cinema' is one of the subjects on which the State legislature has powers to make laws. The relevant Entry-33 of List II (State List) reads as follows:- "entry 33. Theatre and dramatic performances; cinemas subject to the provisions of Entry 60 of List I; sports, entertainments and amusements". ( 27 ) 'cinema' is one of the subjects on which the State legislature has powers to make laws. The relevant Entry-33 of List II (State List) reads as follows:- "entry 33. Theatre and dramatic performances; cinemas subject to the provisions of Entry 60 of List I; sports, entertainments and amusements". ( 28 ) UNDER Entry 60 of List I the Parliament is empowered to make laws on the subject, "sanctioning of cinematograph films for exhibition. " ( 29 ) BY virtue of the powers conferred on the parliament under this entry, the cinematograph Act, 1952, was enacted to make provisions for the certification of cinematograph films for exhibition and for regulating exhibitions by means of cinematographs. ( 30 ) THE important provision of the cinematograph Act that is relevant to advert to is, Part-II of the said enactment which deals with the certification of films for public exhibition for which purpose a Board of films Censors, is constituted by the Central government under Section 3 of the Act. The law made by the Parliament in this Part (Part-II) applies to the entire Country so far as the certification of films for public exhibition, is concerned. ( 31 ) PART III of the Cinematograph Act provides for regulation so exhibition, namely, the grant of licence by the Licensing authority and restrictions on the powers of the Licensing Authority. This part is applicable to the Union Territories so far as the licensing of cinema-houses situated within those territories is concerned. But so far as the grant of licence by the Licensing authority in the States is concerned, each states has enacted a separate Act modelled on the pattern of the Central Act. ( 32 ) ONE other provision in the Central act that needs to be noticed is sub-section (2) of Section 12 which reads thus:-"12. (2) SUBJECT TO the foregoing provisions of this section and the control of the State Government, the Licensing authority may grant licences under this part to such persons as that authority thinks fit and on such terms and conditions and subject to such restrictions as it may determine. " ( 33 ) THE State Governments have enacted acts to provide for regulating exhibition of cinematographs, the licensing of places and for other related matters. " ( 33 ) THE State Governments have enacted acts to provide for regulating exhibition of cinematographs, the licensing of places and for other related matters. The Karnataka cinemas (Regulation) Act 1964, is one such act passed by the State Legislature and has received the assent of the President. ( 34 ) AS already stated, under the provisions of the Karnataka Cinemas (Regulation) Act, 1964, the Licensing authority, namely - the District Magistrate is empowered to grant the licences on such terms and conditions and subject to such restrictions as it may impose while granting the licence. A licencee under the respective state Act, is prohibited from exhibiting films other than those certified as suitable for public exhibition under Section 3 of the cinematograph Act. Such a condition is incorporated in the conditions of the licence granted under the Karnataka Act also. Condition No. 2 of the conditions of the licence reads thus:-"2. (a) The licensee shall not exhibit or permit to be exhibited any film other than a film which has been certified as suitable for public exhibition by the authority constituted under Section (3) of the cinematograph Act, 1952 and which when exhibited displays the prescribed mark of that authority and has not been altered or tampered with in any way since such mark was affixed thereto. " ( 35 ) SOME of the other conditions of the licence are:- prohibition from exhibiting either within or outside the cinema theatre, any advertising matter or picture which is obscene or indecent from the point of view of decency or morality; exhibiting any slides relating to sexual diseases and medicines to correct sexual disorders etc. , displaying of any photograph, picture or poster which depicts or represent a scene or shot, which has been excised from any film, under the orders of the Central Board of Film Censors; no fire work to be used as an adjunct to a cinematograph exhibition; prohibition to transfer licence without permission, the time- limit beyond which the exhibition shall not continue as may be fixed by the Licensing authority and the like. ( 36 ) THE licence for exhibition under the video Rules, is issued under the provisions of the Act, namely - the Karnataka Cinemas (Regulation) Act, 6/64 and the Rules framed thereunder. The licence is granted under sub-rule (7) of Rule 4 of the VCR Rules. ( 36 ) THE licence for exhibition under the video Rules, is issued under the provisions of the Act, namely - the Karnataka Cinemas (Regulation) Act, 6/64 and the Rules framed thereunder. The licence is granted under sub-rule (7) of Rule 4 of the VCR Rules. This Rules empowers the Licensing authority to grant a licence to the applicant on such terms and conditions as it may determine while granting the licence. Rule 9 prohibits exhibition of any film other than a film certified by the Film Censor Board as suitable for public exhibition. Another condition on which strong reliance is placed by the learned Government Pleader is the power that is vested in the Licensing authority to suspend or cancel the. licence for the breach of any of the conditions of licence. It is also argued on behalf of the state that the Licensing Authority in whom is vested the power to grant the licence has also the implied power to cancel or suspend the same, which is inherent in the Licensing authority under the Act and conferred on him by the Legislature to be exercised in certain circumstances. Provision of Section 5 (2) of the General Clauses Act, is also relied in support of this argument. ( 37 ) HAVING heard the arguments of Sri c. N. Kamath the learned Counsel for the petitioner and Sri Shahapur the learned government Pleader and after examining in detail the scheme and the purpose of the act, I am of the opinion that the Licensing authority is vested with the power to suspend a licence for the breach of any of the conditions of the licence and special conditions, if any, imposed while granting the licence. These conditions are imposed by virtue of the power vested in him by the rules which are statutory Rules. ( 38 ) IT is not merely the provisions of the act, namely - Sections 16 and 17 that have to be looked into or examined while dealing with a case like this. Exhibition of films other than films which have been certified as suitable for public exhibition by the Film censor Board is prohibited under Condition no. 2 of the conditions of licence. Exhibition of films other than films which have been certified as suitable for public exhibition by the Film censor Board is prohibited under Condition no. 2 of the conditions of licence. ( 39 ) IF the licencee exhibits obscene films, can such exhibition affecting the public morals be allowed to continue solely on the interpretation and understanding of the provisions of Sections 16 and 17 which provide for penalty for any of the contraventions by imposition of fine? Is the Licensing authority left without any power to suspend the licence if it is reported by the police that the licence-holder is exhibiting uncertified films? ( 40 ) ELABORATE Rules are framed by the government for regulating exhibition of cinematograph shows and for Licensing of places and other related matters. The Karnataka cinemas (Regulation) Act is a regulatory measure. The general matters to be considered by the Licensing Authority like interest of the public generally, the suitability of the place, adequacy of the place for the exhibition etc. , are provided in section 6 of the Act. All other matters of detail and the terms and conditions which the licensing Authority can impose, are left to the Rule-making Authority under Section 19 (2) of the Act. The conditions which are required to be imposed as conditions of licence are made part of the licences and the power to suspend a licence in case of breach of any of the said conditions is conferred on the Licensing Authority. This power is dehors and in addition to the prosecution that may be levied against an offending licencee under Section 17 of the Act. ( 41 ) AS a matter of general Rule, the licensing Authorities in charge of issuing licences of particular privileges, trades or occupations have broad discretionary power to suspend licenses for reasonable cause in order to protect the public health, safety and morals. Statutes which confer such discretionary power have been held to be constitutional and valid, but a statute or Rule which vests the Licensing Authorities with arbitrary power to suspend a licence has been held to be invalid (See: Corpus Juris Secundum Vol. 53, P. 1646 ). ( 42 ) THOUGH the power to suspend or revoke a licence is conferred on the Licensing authority, the exercise of that power is always subject to judicial review in cases of arbitrary exercise. 53, P. 1646 ). ( 42 ) THOUGH the power to suspend or revoke a licence is conferred on the Licensing authority, the exercise of that power is always subject to judicial review in cases of arbitrary exercise. This power is also meant to be exercised only in cases where the continuance of the licence is hazardous to the public health, safety and morals. ( 43 ) TO sum up, the Licensing Authority has power to suspend a licence without waiting for the result of the prosecution for offences enumerated in Sections 16 and 17. Such power is to be found in Condition No. 13 of the licences issued for permanent cinemas and condition No. 15 relating to touring cinemas. ( 44 ) BUT no such a power is conferred on the Licensing Authority under the VCR rules though Rule 7 empowers the Licensing authority to grant a licence on such terms and conditions and subject to such restrictions as it may impose at the time of granting a licence. Rule 9 also prohibits exhibition of any film other than a film certified as suitable for public exhibition by the Film Censor board. Conditions of licence framed under rule (7) stops at Condition No. 9 and there is no condition corresponding to Condition no. 13 or 15 referred to above, imposing power to suspend under the VCR Rules. This appears to be a conspicious omission. ( 45 ) THE original files of the Home department were produced by the learned government Pleader and it is seen that while providing the conditions of licence for exhibitions through video-cassette recorders, only 9 conditions are imposed. Steps should, therefore, be taken by the Government to include a condition similar to Condition No. 13 imposed as a condition of licence for permanent cinemas and semi-permanent cinemas under the Act. ( 46 ) IN view of the glaring omission of such a condition conferring power to suspend the licence, the action of the Licensing authority in the present case has to be quashed as without Authority of Law. ( 47 ) WITH these observations and directions, the Writ Petition is allowed and the order of the District Magistrate, Chitradurga (Annexure-'b'), is quashed. ( 47 ) WITH these observations and directions, the Writ Petition is allowed and the order of the District Magistrate, Chitradurga (Annexure-'b'), is quashed. ( 48 ) BEFORE parting with the case, it is also necessary to point out that the Rules and the conditions of licence do not empower the licensing Authority to suspend a licence on other grounds, such as insanitary condition of the licensed - premises where public go for entertainment and for the negligence of the licensee to keep the building or structure where the exhibition of films is conducted, in good repair and safe condition. ( 49 ) THIS omission in the conditions of licence should, in my opinion, be remedied in the public interest and their safety. Writ Petition allowed. --- *** --- .