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2014 DIGILAW 61 (UTT)

Gulshan Kumar Ghai v. State of Uttarakhand

2014-02-28

SUDHANSHU DHULIA

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JUDGMENT Sudhanshu Dhulia, J. (Oral) 1. The petitioner inter alia has challenged the vires of Rule 3, 4 and 5 of Uttarakhand Cable Television Network (Exhibition) Rules, 1997 (hereinafter referred to as “Rules of 1997”). The petitioner wants to run a Cable Television Network for which he has moved an application under Section 3 of the Rules of 1997 before the District Magistrate. The relevant Rule Nos. 3, 4 and 5 of Rules of 1997, which are under challenged reads as under:- “3.Permission to provide Cable Service (1) No person shall provide cable service without prior permission of the District Magistrate. (2) Any person who desires to provide cable service under the Act may apply to the District Magistrate for permission to provide such service. (3) Application under sub-rule (2) shall be given in Form-1. (4) On receipt of the application, the District Magistrate shall satisfy himself that the applicant has furnished all the requisite information and on being so satisfied, grant to the applicant such permission in Form 2 for a period of three financial year at a time. Provided that the District Magistrate may, for reasons to be recorded in writing and communicated to the applicant refuse to grant the permission. (5) The District Magistrate shall, as far as may be, within sixty days from the date of the receipt of the application, pass an order Sub Rule (4). 4. Renewal of the permission (1) The District Magistrate may, on application being given to him, renew the permission granted under rule 3 before the expiry of its term for a period of three Financial Year at a time. Such renewal shall be given in Form-2. (2) Application for renewal under sub-rule (1) shall be given inform 1 at least sixty days before the expiry of the term of the permission. (3) The District Magistrate may, for reasons to be recorded in writing and communicated to the applicant, refuse to renew the permission. (4) The order under sub-rule (3) shall be passed before the expiry of the term of the permission. (5) Renewal of the permission deemed to have been granted Where the District Magistrate fails to pass any order under rule 4 before the expiry of the term of the permission granted under rule 3. (4) The order under sub-rule (3) shall be passed before the expiry of the term of the permission. (5) Renewal of the permission deemed to have been granted Where the District Magistrate fails to pass any order under rule 4 before the expiry of the term of the permission granted under rule 3. the renewal of such permission for a period of three Financial Year shall be deemed to have been granted to the applicant and the District Magistrate shall, in that event. issue such renewal in Form-2.” 2. According to the petitioner, the State Government only has powers to impose tax, inter alia on entertainment under Entry no. 62 of List II of Schedule 7 of the Constitution of India, which reads as under:- “62. Taxes on luxuries, including taxes on entertainments, amusements, betting and gambling.” 3. He further submits that since these powers are only to impose entertainment tax, it does not give them power to regulate entertainment. The power to regulate is contained under the Union List at Entry No. 31 of List I of Schedule 7, which reads as under:- “Posts and telegraphs; telephones, wireless, broadcasting and other like forms of communication.” 4. The Cable Television Networks (Regulation) Act, 1995 was enacted by Parliament in the Forty-sixth year Parliamentary Legislation and subsequently the State Provision Rules of 1997 were framed in the year 1997 where before having a Cable Television Network, a person has to get licence from the District Magistrate under Rule 3 of Rules 1997, which has already been referred above. 5. This argument of the petitioner, however, is totally misconceived, inasmuch as, under Entry No. 33 of List II of Schedule 7 the State Government has got powers to legislate on entertainment, subject to the provision of Entry 60 of List I, which reads as under:- “33. Theatres and dramatic performances; cinemas subject to the provision of entry 60 of List I; sports, entertainments and amusements.” 6. Entry 60 of List I, reads as under:- “60. Sanctioning of cinematograph films for exhibition.” 7. Therefore, the argument of the petitioner that no regulation can be made for entertainment by the State Government either by Rule or by Act is totally misconceived under Article 162 of the Constitution of India. The executive powers of the State Government extends to all matters in respect of which the Legislature of the State has power to make laws. Therefore, the argument of the petitioner that no regulation can be made for entertainment by the State Government either by Rule or by Act is totally misconceived under Article 162 of the Constitution of India. The executive powers of the State Government extends to all matters in respect of which the Legislature of the State has power to make laws. The power clearly springs from Entry 33 of List II, which has already been referred above. 8. In view thereof, the argument regarding the validity of vires of Rule Nos. 3, 4 and 5 of the Rules of 1997 is totally misconceived and to that extent the writ petition fails and is hereby dismissed. 9. However, learned counsel for the petitioner submits that he has already moved an application dated 07.02.2014 under Rule 3 of the Rules of 1997 before the District Magistrate, which is still pending. In view of this the District Magistrate is directed to take decision on the application of the petitioner who shall pass appropriate order, in accordance with law, within a period of three weeks from the date of production of the certified copy of this order. In case, the District Magistrate finds that a licence can be given in favour of the petitioner and he does not find any anomaly in it, he shall also pass appropriate order on the “seizure” aspect as well, presently raised by the petitioner. 10. Let the copy of this order be supplied to the parties within three days.