Karnataka High Court
Srinand Talkies And Ors. vs State Of Karnataka on 9 October, 1984
Equivalent citations: ILR1984KAR1231, 1984(2)KARLJ450
ORDER Per Narayana Rai Kudoor, J.
The impugned Rule undoubtedly imposes a restriction on the licensees to exhibit not more than four cinematograph shows in a day. The element of restriction or restraint is inherent both in regulative measures as well as prohibitive or preventive measures ....The term ' prohibit' postulates negative command. Thus, from the meaning of ' regulate' and ' prohibit ' it is clear that the element of restriction is found in both but it varies only in degree.... It would therefore be reasonable to deduce that the word 'regulation' is a word of broad import having wide meaning comprehending all facts not only specifically enumerated in the Act but also embrace within its fold the powers incidental to the regulation envisaged in good faith with a view solely to the public welfare. Court has to recognise this power of the Government in public interest ........ The Rule does not either prohibit or prevent the licensees from exhibiting cinematograph shows in any day. On the other hand, his right to exhibit cinematograph shows every day is not taken away but continued subject to the condition of exhibiting not more than four cinematograph shows in a day. It only regulates the exhibition of cinematograph shows in a day, that is, not more than four shows.
Merely because a licence given to exhibit cinematograph shows, it does not mean that the licensee could exhibit films all the 24 hours of the day. He is required to exhibit the cinematograph shows in an orderly manner, more suitable in the interest of the general public. There is no provision either in the Act or, in the Rules restricting the number of shows in a day. The only restriction imposed upon the licensees about the exhibition of films shows, before the impugned Rule came to be framed was condition No. 11 of the licence that no cinematograph exhibition shall continue after 1 a.m. In that view, the impugned Rule which places restriction upon the licensees to exhibit not more than 4 shows in a day cannot be said to be unreasonable.... Having regard to the facts and circumstances of the case, the context in which the impugned Rule was made and considering the nature of the trade or business carried on by the Petitioners, the impugned Rule cannpt be said to be so unreasonable as to take it out of the purview of clause (6) of Article 19 of the Constitution. Consequently it follows that the impugned Rule does not contravene Article 19(l)(g) of the Constitution.
Impugned Rule valid as it is for the purpose of the Act and within the competence of the Rule - making - authority and not violative of Article 19(l)(g) of the Constitution.
In view of divergence, questions of law arising for determination referred to Rama Jois, J.
(1) Whether Rule 41A of the Karnataka Cinemas (Regulation) Rules framed by Government under Section 19 of the Karnataka Cinemas Regulation Act of 1964 (Karnataka Act 23 of 1964) was for purposes of the Act or not ?
(2) Whether Rule 41A was violative of Article 19 of the Constitution or not ?
Per Rama Jois, J.
18th September 1984
(i) On consideration of the object and purpose for the achievement of which the Rule is framed, the Rule is for the purpose of the Act as discernible from the provisions of the Act Preamble, Sections 6(2), 8(b), 12, 19(2)(2), 19(2)(d) and (e)j and therefore, inuavires.
(ii) Every one of the grounds which persuaded the Government to make the Rule are intended to remedy the mischief resulting from having as many as five shows within a span of 15 hours and to ensure the health, safety, convenience and comfort of the one-goers, who constitute the very source of income of the Petitioners' business. Therefore the restriction imposed under Rule 41A is in public interest...... When there is a clash between public interest and individual right, the latter must yield to the former.
Rule 41A held valid concurring with Kudoor J, and disagreeing with Puttaswamy, J.
ORDER OF THE COURT 9th October 1984 In the light of the opinions expressed by the majority, the challenge of the Petitioners to the impugned Rule is liable to be rejected. Writ Petitions dismissed.
(B) Constitution of India -- Article 19(l)(g) and 19(6) -- Rule 41-A of Karnataka Cinemas (Regulation) Rules, 1971 intra Vires :
Vide Head note 'A' supra.
ORDER Puttaswamy, J.
1.As the Petitioners in all these cases have challenged the validity of one and the same Rule, I propose to dispose of them by a common order.
2. All the Petitioners are licensees for exhibition of films in their respective theatres licensed under the Karnataka Cinemas (Regulation) Act, 1964 (Karnataka Act 23 of 1964) and the Karnataka Cinemas (Regulation) Rules, 1971 framed under the Act (here in after referred to as the Act and the Rules). The licences of the Petitioners have been renewed from time to time and are still current.
3. Prior to 1-8-1981, the Petitioners were free to exhibit the number of cinematograph shows in their theatres subject to the terms and conditions stipulated in their licences. Clause 11 of the licences issued to the permanent and drive-in theatres prohibits exhibition of films beyond 1-00 a.m. of the day. Except for this condition, there was no other restriction placed in the Act, the Rules and the licences restricting the number of shows to be exhibited by the Petitioners.
4. But, Government in its Notification No. HD 59 CNA 81 dated 1-8-1981 published in Karnataka Gazette (Extra-ordinary) dated 3-8-1981, in the purported exercise of its powers under Section 19 of the Act has added a new Rule viz.. Rule 41-A restricting the number of shows to four a day and making some consequential amendments in Rule 88 of the Rules. Rule 41-A framed by Government reads thus :-
"41A. Number of shows permissible in a day :- No licensee shall exhibit more than four cinematograph shows in a day."
In these Petitions under Article 226 of the Constitution, the Petitioners have challenged the validity of this rule.
5. The Petitioners have urged that the restriction or prohibition imposed in the impugned rule that was not for purposes of the Act, was beyond the Rule making power of Government, under Section 19 of the Act. Secondly, the Petitioners have urged that the impugned Rule that was not in the interest of general public, places an unreasonable restriction on the freedom of trade and business guaranteed to them under Article 19(1)(g) of the Constitution. Apart from these grounds, the Petitioners have urged certain minor grounds that are not very necessary to notice.
6. In a common return, the respondents have justified the impugned Rule. The respondents have asserted that the introduction of noon shows some time between 12-00 noon and 3 p.m. or running of more than four shows a day which was the earlier prevailing practice had introduced health hazards in violations of the Act, Rules and conditions of licences like (i) the theatres were not kept clean ; (ii) the theatres were not exhibiting the approved films and slides ; (iii) that there would not be sufficient time for egress and ingress of the visitors between the end of one and the commencement of the other show ; and (iv) there was necessity to conserve scacre electrical energy and to curb or check these evils, the impugned Rule had been framed. On these and other grounds; the respondents have urged that the Rule made was for purposes of the Act and was within the competence of Government and the restriction imposed was a reasonable restriction saved by Article 19(6) of the Constitution.
7. Sriyuths B. G. Sridharan, M. Rangaswamy, S.K.V. Chalapathy and S. S. Ujjannavar, Learned Counsel for the Petitioners have strenuously contended that the impugned Rule restricting the number of shows to be exhibited by the theatre owners, was not for purpose of the Act and was beyond the Rule making power of Government. In support of their contention, Counsel for the Petitioners have placed strong reliance on a Division Bench ruling of this Court in A. Selvarajen v. The State of Mysore and another, 1963 (1) Mys. L. J. 28.
8. Sri M. R. Achar, Learned Government Advocate appearing for the respondents has urged that the restriction on the number of shows conceived in the interests of general public, was for purposes of the Act and was valid. In support of his contention Sri Achar has strongly relied on a ruling of Allahabad High Court in Govind Ram Sharma v. State of Uttar Pradesh and another, and a ruling of the Patna High Court in M/s. Vishnu Talkies v. The State of Bihar and others, .
9. The nature of trade or business carried on by the Petitioners was not a dangerous or a noxious trade which is opposed to public morals, decency and health. The nature of trade and business carried on by the Petitioners viz., exhibition of approved cinematograph films in their theatres is a trade and business guaranteed under Article 19(l)(g) of the Constitution, In such trade and business, the State is generally competent to make regulatory provisions and not make provision for restriction or abolition either partial or total.
10. Earlier, I have extracted the impugned Rule in its entirety. The Rule in clear and unambiguous terms prohibits the licensees from exhibiting more than four shows per day. I will even assume that the same has been framed for a laudable purpose by Government. But, still there is no escape from holding that the effect of the impugned Rule was nothing but a restriction or a partial abolition of the trade and business guaranteed to the Petitioners under Article 19(1)(g) of the Constitution.
11. The title of the Act itself suggests that it is a regulatory Act. The preamble to the Act which generally opens the key to the Act, also attempts to regulate the exhibition of films by issue of licences and impose reasonable conditions for exhibition of films in the interests of the general public.
12. Sections 1 and 2 dealing with the title, commencement and definition of certain terms are not material. Section 3 prescribes the authority that can issue licences under the Act. Section 4 of the Act prohibits a person from exhibiting films except in accordance with a licence issued for that purpose subject to the terms and conditions stipulated in such licence. Section 5 provides for making an application for licence. Section 6 provides for the matters to be taken into consideration for granting or refusing a licence. Section 7 confers power on the licensing authority to limit number of places that can be licensed in an area. Section 8 directs the licensing authority to satisfy with the requirements of the Act and the Rules before granting a licence under the Act. Section 9 declares that the licence granted is personal to the grantee and was not transferable without the permission of the licensing authority. Section 10 provides for appeals against the orders made under Sections 5 and 9 of the Act. Section 11 directs the construction of building only after obtaining necessary permission from the licensing authority. Section 12 empowers Government to issue directions to the licensees on the matters specified in that Section. Section 13 empowers the licensing authority to issue directions to the licensees. Section 14 empowers Government to issue orders and directions of a general character. Section 15 empowers Government and the licensing authority to suspend exhibition of films in certain cases. Section 16 provides for penalties. Section 17 provides for cancellation or suspension of a licence. Section 18 provides for a revision to Government.
13. Every one of the provisions of the Act briefly analysed, do not contemplate the restriction of number of shows that can be exhibited by licensees over and above the number of shows considered reasonable, adequate or necessary by Government per day. In these matters there can be more than one opinion and the subjective or even objective opinion of Government can hardly be the criteria either for the trade or the public also.
14. Section 19(1) of the Act empowers Government to make Rules to carry out the purposes of the Act. Section 19(1) is the general provision that empowers Government to make Rules. The specific matters enumerated in the following sub-section of that Section viz., Section 19(2) of the Act, do not enlarge the scope and ambit of that Section, but only particularises the matters that fall within the purview of the main Section of the Act. The power to make Rules can only be exercised for carrying out the purposes of the Act and not for other purposes. The restriction on the number of shows docs not fall within the purview of either Section 19(2)(a) or Section 19(2)(d) of the Act.
15. Earlier, I have held that the Act only provides for regulating the exhibition of films and not for restriction or prohibition of films by the licensees. The purposes of the Act is only to regulate the exhibition of films by the licensees. The purposes of the Act is not to restrict or prohibit the exhibition of films by the licensees. But, the impugned Rule far from regulating the exhibition of films, prohibits the exhibition of films or restricts the exhibition of films. In my view, the existing condition No, 11 of the licence issued in Form-F, the validity of which is not in challenge in these cases, cannot be relied on to examine the validity of the impugned Rule. I have, therefore, no hesitation in holding that the impugned Rule was not for purposes of the Act and was beyond the Rule making power of Government under Section 19 of the Act and is liable to be struck down on this short ground.
16. In Selvarajen's case,1 this Court was considering the validity of Rule 67 framed by Government under the Hyderabad Cinemas (Regulation) Act, 1952 which was then in force in the Hyderabad-Karnataka area, prohibiting the issue of licences to travelling cinemas for a period exceeding four months in an year for the same building. In upholding the challenge of the Petitioner to the said Rule as beyond the Rule making power of Government under Section 9 of that Act, that is analogous to Section 19 of the Act, the Division Bench speaking through Somnath Iyer, J. (as he then was) expressed thus :
" But it was urged by the Learaed Government Pleader that what the State Government did in this case was merely to regulate the cinematograph exhibitions for securing public safety and therefore the Rule was one which properly fell within the ambit of Section 9(2)(b) of the Act. It is true that that Clause provides for the Rules being made for that purpose by the State Government.
But it should be remembered that the Rules which may be so made have to be made for two purposes. One of those purposes is to carry into effect the provisions of the Act. That is what sub-section (1) of Section 9 expressly provides. If, as 1 have mentioned, the purpose of that Act is to permit the. exhibition of cinematograph shows even in non-permanent buildings constructed with inflammable materials, that purpose is not carried into effect by the new Rule since what it does, is, to altogether forbid such exhibitions for a period of eight months in a year, if the exhibitions are made in such non-permanent buildings.
"Secondly, it cannot be said that the new Rule 'regulates' cinematograph exhibitions. It would not be possible for any one to suggest that if the State Government prohibited the exhibition of cinematograph shows for a period of eight months in a year, it regulated the cinematograph exhibitions.
The word 'regulation' when it occurs in a statute, has to be interpreted having regard to the context in which that word occurs. And when that Word occurs in a licensing legislation such as Hyderabad Cinemas (Regulation) Act it is not possible to interpret that word so as also to confer power to prohibit the performance of the thing which can be done under a licence. The word 'regulation' is distinct from 'prohibition' or 'prevention' and unless there is anything in the statute justifying such interpretation, the word 'regulation' cannot be equated with prohibition or prevention. The very expression 'regulation' cannotes continued existetice of the thing to be regulated, and if as the State Government has done in this case, a person who has once exhibited his shows in a non-permanent building for four months has no right to' exhibit such shows during the reimaining eight month, no one can suggest, that during those eight months when the exhibitor cannot exhibit his shows at all, the State Government is regulating the exhibition of cinematograph shows by that person who is altogether prevented or prohibited from making any such exhibition during that period. If he is permitted during that period also to make his exhibition, what the State Government has, is, the power to make a Rule regulating that exhibition, provided the exhibition is continued and going on, and if it altogether stops such exhibition, what the Government does is not to legulate it but to prohibit it or stop it.
That, that is how the expression 'regulation' has to be interpreted is what was pointed out ia Municipal Corporation of the City of Toronto v. Virago (1896 AC 88). At page 93 of the report Lord Davey observed; "No doubt the regulation and governance of a trads may involve the imposition of restrictions on its exercise both as to lime and to a certain extent as to place where such restrictions are in the opinion of the public authority necessary to prevent a nuisance or for the maintenance of order. But, their Lordships think there is marked distinction to be drawn between the prohibition or prevention of a trade and the regulation or governance of it, and indeed a power to regulate and govern seems to imply the continued existence of that which is to be regulated or governed".
In Attorney-General for Ontario v. Attorney General for the Dominion (1896 AC 348) Lord Watson said this at page 363 of the report :
"A power to regulate, naturally, if not necessarily, assumes, unless it is enlarged by the context, the conservation of the thing whih is to be made the subject of regulation."
It cannot, therefore, be said that when the Government made the impugned Rule, it made it for the regulation of the cinematograph exhibitions; on the contrary it made it not for the purpose of regulating the exhibition, but for stopping the exhibition and cannot therefore be regarded as a Rule properly made under Section 9(2)(b) of the Act."
In my opinion, these principles enunciated in Selvarajen's case1 equally governs the validity of the impugned rule also and cannot be distinguished on any substantial ground.
17. In Govind Ram Sharma's case2, the Allahabad High Court was examining the validity of the additional conditions imposed by the licensing authority in pursuance of the directions issued by Government of Uttar Pradesh under Section 5 of the Uttar Pradesh Cinemas (Regulation) Act, 1955 that corresponds to Section 14 of the Act regulating the exhibition of films in the State in the manner indicated in the additional conditions. The power exercised by Government and the licensing authority under that Act corresponding to Sections 12 and 14 of the Act would show that what was done in that case by the authority was only regulatory in character and was not restrictive or prohibitive as is found in the impugned Rule. I am, therefore, of the opinion that the ratio in Govind Ram Sharma's case2 does not bear on the point and assist the respondents.
18. In Vishnu Talkies' case3, the Patna High Court was examining the validity of at direction issued by the very licensing authority under Section 5(2) of the Bihar Cinemas (Regulation) Act corresponding to Section 5 of the Act regulating the exhibition of films before the commencement of certain hours in the interests of the student community of the area. But, that is not the position in the present cases. In the present cases, Government far from regulating, has restricted or prohibited the shows particularly without rhyme or reason. Hence, the ratio in Vishnu Talkies' case3 does not really bear on the point and assist the respondents.
19. Learned Counsel for the Petitioners have next contended that the impugned Rule places an unreasonable restriction to carry on their trade or business in entertainment and was violative of Article 19(1)(g) of the Constitution.
20. Sri Achar has urged that the impugned rule conceived in the interests of general public, places a reasonable restriction and was saved by Article 19(6) of the Constitution.
21. The scope and ambit of Article 19 of the Constitution and the tests to be applied in judging the validity of restrictions has been explained by the Supreme Court in a large number of cases and it is enough to refer to two of them only.
22. In The State of Madras v. V. G. Row, , one of the earliest cases that has become classical, a Constitution Bench of the Supreme Court speaking through Patanjali Sastri, C.J. expressed thus :
"...It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual stature impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, ths extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the Judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable. "
In Narendra Kumar and others v. The Union of India and others, a Constitution Bench of the Supreme Court expressed thus :
"(16) It is clear that, in these three cases, viz., Chintaraan Rao's case, , Cooverjee's case, and M.B. Cotton Association Limited Case, (supra) the Court considered the real question to be whether the interference with the fundamental right was " reasonable " or not in the interests of the general public and that if the answer to the question was in the affirmative, the law would be valid and it would be invalid if the test of reasonableness was not passed. Prohibition was in all these cases treated as only a kind of " restriction". Any other view would, in our opinion defeat the intention of the Constitution.
(17) After Art. 19(1) has conferred on the citizen the several rights set out in its seven sub-clauses, action is at once taken by the Constitution in Clauses 2 to 6 to keep the way of social control free from unreasonable impediment. The raison d'etre of a State being the welfare of the members of the State by suitable legislation and appropriate administration, the whole purpose of the creation of the State would be frustrated if the conferment of these seven rights would result in cessation of legislation in the extensive fields where these seven rights operate. But, without the saving provisions that would be the exact result of Art. 13 of the Constitution. It was to guard against this position that the Constitution provided in its Clauses 2 to 6 that even in the fields of these rights new laws might be made and old laws would operate where this was necessary for general welfare. Laws imposing reasonable restriction on the exercise of the rights are saved by Clause 2 in respect of rights under sub-clause (2) in respect of rights under sub-clause (a) where the restrictions are "in the interests of the security of the State"; and of other matters mentioned therein ; by Clause 3 in respect of the rights conferred by sub-clause (b) where the restrictions are "in the interests of the public order"; by Clauses 4, 5 and 6 in respect of the rights conferred by sub-clauses (c),(d) (e), (f) and (g) the restrictions are " in the interests of the general public " in Clause 5 which is in respect of rights conferred by sub-clauses (d), (e) and (f) also where the restrictions are "for the protection of the interests of any Scheduled Tribe". But, for these saving provisions such laws would have been void because of Art. 13 which is in these words :
" All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they arc inconsistent with the provisions of this Part, shall to the extent of such inconsistency, be void ; (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this Clause shall, to the extent of the contravention be void ......".
18. (1)As it was to remedy the harm that would otherwise be caused by the provisions of Art. 13, that these saving provisions were made, it is proper to remember the words of Art. 13 in interpreting the words ''reasonable restrictions" on the exercise of the right as used in Clause(2). It is reasonable to think that the makers of the Constitution considered the word " restriction " to be sufficiently wide to save laws " inconsistent" with Art. 19(1), or "taking away the rights" conferred by the Article, provided this inconsistency or taking away was reasonable in the interests of the different matters mentioned in the Clause. There can be no doubt therefore that they intended thc word " restriction" to include cases of "prohibition" also. The contention that a law prohibiting the exercise of a fundamental right is in no case saved, cannot therefore, be accepted. It is undoubtedly correct, however, that when, as in the present case, the restriction reaches the stage of prohibition special care has to be taken by the Court to see that the test of reasonableness is satisfied. The greater the restriction, the more the need for strict scrutiny by the Court.
19. In applying the test of reasonableness, the Court has to consider the question in tha background of the facts and circumstances under which the order was made, taking into account the nature of the evil that was sought to be achieved 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."
Bearing these principles, it is necessary to examine whether the restriction placed by the impugned rule was a reasonable restriction with due regard to the nature of business carried on by the exhibitors.
23. I have earlier noticed the nature of business carried on by the Petitioners, reproduced the Rule and analysed its effect also. On my earlier analysis, it is manifest that the Rule places a restriction or results in partial restriction or prohibition of the trade and business guaranteed to the Petitioners under Article 19(l)(g) of the Constitution.
24. The impugned Rule restricts the number of shows to four a day. As to why such a restriction or restraint should be placed cannot be gathered from the very rule or the other provisions of the Act and Rules. Every one of the reasons stated in the return briefly noticed by me earlier, do not really touch on the necessity to restrict or prohibit more than four shows Every one of those reasons really justify regulation rather than restriction or prohibition. Whether the exhibitors will make profit or there will be attendance for more than four shows a day are hardly relevant in judging the impact of the rule vis-a-vis the restriction placed under Article 19(6) of the Constitution. With due regard to the nature of the business, I find it difficult to hold that the restriction placed was in the interests of the general public and is a reasonable restriction.
25. The rule prohibits the exhibition of more than foul shows in a day. Except for this, the Rule does not regulate the exhibition of those four shows. As the Rule stands, even exhibition of four shows in a row or continuously is not prohibited. Whether an exhibitor would be so foolish or crazy in exhibiting four shows in a row or continuously is irrelevant in ascertaining the impact of the Rule. The Rule does not prohibit the exhibition of what are called as 'noon shows' between 12 noon and 3 p.m. also. Every one of the reasons set out by the State to justify the impugned Rule like the necessity to keep the theatres clean, facilitate the exhibition of approved films, allow sufficient time for egress and ingress between the end of one show and the commencement of another show and the necessity to conserve scarce electrical energy are hardly achieved by the impugned Rule. So far as the last reason, the assertion of the Petitioners -that they do not depend on supply of electric energy and depend on their own source is not denied by the respondents. Even otherwise, the supply of electric energy is not regulated by the Act and the Rules and is, regulated by other laws. When one judges the impugned Rule, with due regard to the nature of the trade or business, I cannot but hold that it places an unreasonable restriction that is not conceived in the interests of the general public and is not saved by Article 19(6) of the Constitution.
26 What I have said on Govind Ram Sharma's2 and Vishnu Talkies3' cases earlier, equally applies in holding that they do not bear on the validity of restriction placed in the impugned Rule.
27.On the above discussion, I hold that the impugned Rule which is not saved by Article 19(6) of the Constitution is violative of Article 19(1)(g): of the Constitution and is liable to be struck down on that ground also.
28. As to how the exhibition of films should be regulated and what should be the periods between one show and the other show and what further directions should be issued to ensure the cleanliness in the theatres during such intervals, if not already regulated by the existing rules and the conditions imposed in the existing licences are matters for Government and licensing authorities to examine and decide. But, they cannot be examined by me much less any opinion expressed on all or any of them, I need hardly say that what I have said earlier cannot be understood as in any way interfering with those or other powers of the authorities under the Act and the Rules.
29. In the light of my above discussion, I strike down Rule 41A of the Karnataka Cinemas (Regulation) Rules, 1971 framed by Government and published in its Notification No. HD 59 CNA 81 dated 1-8-1981 with no order as to costs.
Narayana Rai Kudoor, J.
1.I have had the advantage of reading the Order proposed to be made by my learned Brother Puttaswamy J. With respect. I am unable to bring myself agree with the view expressed by my learned Brother. I, therefore, proceed to record my reasons for the same.
2. The Petitioners in these Writ Petitions are licensees for exhibition of cinematograph films in their respective theatres licensed under the Karnataka Cinemas (Regulation) Act, 1964 (Karnataka Act No. 23/1964) and the Karnataka Cinemas (Regulation) Rules, 1971 (for short the 'Act' and the 'Rules' respectively). The licences of the Petitioners have been renewed from time to time and are still current. The theatre-owners in Bangalore who were normally exhibiting four shows earlier, resorted to exhibit five shows in a day. There was no regulation as to the number of shows to be exhibited in a day till 1-8-1981. The only condition regarding the exhibition of cinematograph shows in a day was, Clause 11 of the conditions of the licence which prohibits exhibition of cinematograph films after such time not later than 1 a.m. as may be fixed by the licensing authority. Except for this condition, there was no other restriction placed in the Act and the Rules restricting the number of shows to be exhibited in any day.
3. The State Government in its notification No. HD 59 CNA 81 dated 1-8-1981 published in the Karnataka Gazette (Extra-Ordinary) dated 3-8-1981 in the purported exercise of the powers under Section 19 of the Act has added a new rule-Rule 41A fixing the exhibition of cinematograph shows not more than four in a day. Rule 41-A reads :
"41A. Number of shows permissible in a day : No licenssc sha 1 exhibit more than four cinematograph shows in a day."
In these Petitions under Article 226 of the Constitution, the Petitioners have challenged the validity of this rule.
4. It is contended by the Petitioners that the theatre-owners in Bangalore, having found it difficult to exhibit the large number of films that are awaiting release, in the existing theatres in which only four shows in a day were being exhibited, resorted to exhibit five shows in a day by increasing the establishment expenses and also employing additional staff. The restriction imposed by the impugned Rule on the licensee not to exhibit more than four cinematograph shows in a day is not for carrying out the purposes of the Act. It is not a regulatory provision; on the other hand, it places restriction prohibiting or preventing the Petitioners from carrying on their business of exhibiting cinematograph shows. It is ultra vires the provisions of the Act and is bevond the power of the rule-making authority under Section 19 of the Act. They further contended that the impugned Rule is not in the public interest and it places an unreasonable restriction on the fundamental right of the petitioners to carry on their trade or business of exhibiting cinematograph films. So it is void as violative of Article 19(1)(g) of the Constitution. The impugned rule which absolutely prohibits the exhibition of more than four shows in a day, is not proportionate to the mischief sought to be eradicated and it will not achieve the purpose for which the rule has been made. Apart from these main grounds, the Petitioners have also urged some other grounds in their Petitions which are unnecessary to be traversed.
5. The respondents in their common return have justified the impugned Rule. They have inter alia contended that all the Petitioners are licence-holders under the provisions of the Act to exhibit cinematograph films in their respective theatre. They have been obtaining regrant of their licences from time to time. The licences issued to them are subject to the provisions of the Act, the Rules made thereunder and the conditions of the licences. Under Section 12 of the Act, the State Government may from time to time issue directions to the licensee or licensees generally requiring them to exhibit such films or class of films having scientific or educational value ; such films dealing with news and current events and such documentary films, indigenous films or such other films having special value to the public and where such directions are issued, they shall be deemed to be additional conditions and restrictions subject to which the licence had been granted. Under Section 13 the licensing authority may, from time to time issue directions to the licensee or licensees generally requiring them to exhibit in each show such slides of public interest as may be supplied by the licensing authority. The direction to be issued under Section 12 of the Act are with regard to the exhibition of films which in the opinion of the State Government benefit the members of the public who visit the cinematograph shows. Likewise, the direction to be issued by the Licensing Authority to exhibit slides of public interest are also beneficial to the members of the public. It was found from various reports and informations collected by the State Government that many of the licensees were conducting noon-shows apart from the regular shows i.e., morning show, matinee, evening and night shows. Because of the exhibition of five shows in a day, in a cinema theatre, it was not possible for the licensees to keep the-theatres hygienically clean. Reports were also received that for want of time as the licensees were exhibiting five shows in a day, they were not exhibiting the films approved and required to be exhibited under Section 12 and also the slides as required under Section 13 of the Act. The State Government found that exhibition of five shows in a day was not conducive to the health of the cinegoers and for want of time, various exhibitors in several theatres would start the exhibition of approved films and slides and also other advertisements even before the cinegoers could enter the theatres and occupy their respective seats. In this process, the main object of Sections 12 and 13 of the Act was defeated. Further, it was also felt that power being scarce, it was advisable to impose a condition restricting the exhibition of film shows not more than four in a day. In this background, the State Government made the impugned Rule. The purpose of the Act is to regulate the exhibition by means of cinematograph and licensing of places in which the cinematograph films are exhibited in the State. The main object in regulating the exhibition of cinematograph films is public interest. The impugned Rule regulates the exhibition of cinematograph shows and it does not prohibit the exhibition of such shows in a day. The Rule is within the competence of the Rulemaking authority and is not ultra vires the provisions of the Act. It is made in the interest of general public. Besides, the restrictions sought to be imposed under the impugned Rule is a reasonable restriction within the meaning of Article 19(6) and so it is not violative of Article 19(1)(g) of the Constitution.
6. Sriyuths B. G. Sridharan, M. Rangaswamy, S. K. V. Chalapathy and S. S. Ujjannavar, Learned Counsel for the Petitioners firstly contended that the impugned Rule restricting the number of shows to be exhibited by the theatre-owners in a day not more than four shows, is not for the purpose of the Act and is beyond the Rulemaking power of the Government. In support of their contention, they placed strong reliance on a Division Bench Ruling of this Court in Shelvarajaa v. State of Mysore.
7. Per contra Sri M. R. Achar, Learned Government Advocate appearing for the respondents strenuously urged that the restriction imposed under the impugned Rule on the number of shows conceived in the interest of general public, is for the purposes of the Act and within the competence of the Rule-making authority and so it is valid. Sri Achar in support of his contention cited few rulings and placed strong reliance on a ruling of the Andhra Pradesh High Court in D. K. V. Prasad Rao v. Government of Andhra Pradesh, and a ruling of the Patna High Court in Messrs Vishnu Talkies v. State of Bihar and others.
8. To understand these rival submissions, it would be necessary to refer to the relevant statutory provisions.
9. The title of the Act suggests that it is a regulatory Act. The preamble to the Act which generally serves as a key to understand the purpose and object of the Act states that it is an Act to provide for regulating exhibition by means of cinematograph and the licensing of places in which cinematograph films are exhibited in the State of Karnataka. The twin purpose of the Act adumbrated in the preamble is to provide for regulating exhibition of cinematograph films and the licensing of places in which cinematograph films are exhibited. Section 3 of the Act provides that the licensing authority shall be the concerned District Magistrate, Section 4 prohibits a person from exhibiting films in any place other than a place licensed under the Act or otherwise than in compliance with any conditions and restrictions imposed by such licence. Sections 5 to 8 prescribe the procedure to be adopted to grant licence for exhibition of cinematograph films and the places of such exhibitions. Section 11 provides for construction or reconstruction of buildings or use of the places for exhibition of cinematograph films, only after obtaining permission of the licensing authority. Section 12(1) empowers the State Government to issue directions from time to time to any licensee or licensees generally, requiring them to exhibit such film or class of films having scientific or educational value, films dealing with news and current events and such documentary films, indigenous films or other films having special value to the public as may have been approved by the State Government in that behalf from time to time. Sub-section (2) provides that where any direction have been issued under sub-section (1), such directions shall be deemed to be additional conditions and restrictions subject to which the licence has been granted. Section 13 empowers the licensing authority to issue directions to any licensee or licensees generally from time to time requiring them to exhibit in each show such slides of public interest as may be supplied by the licensing authority. Section 14 empowers the State Government, subject to the provisions of the Act and the Rules made thereunder to issue orders and directions of a general character as it may consider necessary in respect of any matter relating to licences for the exhibition of cinematograph films to the licensing authority which the licensing authority is bound to give effect. Section 15 empowers the State Government and the licensing authority to suspend exhibition of films in certain cases. Section 16 provides for penalties. Section 17 provides for cancellation or suspension of licence by the licensing authority. Section 19 empowers the State Government to make Rules to carry out the purposes of the Act. The material portion of Section 19 which is relevant for our purpose reads :
''19, Powers to make Rules : (1) The State Government may by notification, after previous publication, make Rules to carry out the purposes of this Act. (2) In particular and without prejudice to the generality of the fore-going power, such Rules may provide for - a) the particulars to be given in an application for a licence and the terms,conditions and restrictions subject to which a licence may be granted under this Act and the fees to be paid in respect of each licence ; b) xx xx xx xx c) xx xx xx xx d) the regulation of cinematograph exhibitions for securing public safely;"
10. A bare rending of these provisions shows that Section 19(1) of the Act empowers the State Government to make Rules to carry out the purposes of the Act. Sub-section (2) enumerates specific matters in respect of which Rules may be made without prejudice to the generality of the power conferred upon the Stale Government under sub-section (1), The power to make Rules can be exercised for carrying out the purposes of the Act and not for any other purpose.
11. The State Government in exercise of its powers under Section 19 of the Act has framed the Rules. Chapter VI of the Rules deals with approval of building construction and issue of licence. Rule 34 provides for obtaining certificates from various authorities relating to the approval of the building constructed for exhibiting the cinematograph shows. Rule 35 provides for the procedure to make an application for issue of the licence to exhibit cinematograph films shows after obtaining the necessary certificates stipulated under Rule 34. Rule 36 provides that on receipt of the application for licence, the Licensing Authority shall, if he is satisfied that all the works are carried out as per the approved plans and all arrangements are made for exhibition of films, issue a licence in Form-F to the applicant within two weeks from the date of receipt of the application or refuse to issue such licence for reasons to be recorded in writing. Form-F stipulates the conditions of the licence.It provides that the licence is granted subject to the provisions of the Act and the Rules and also the conditions detailed in the licence.
12. There is no provision either in the Act or in the Rules which restricts the number of cinematograph shows in a day before the impugned Rule came to be included in Chapter VI. The only restriction regarding the cinematograph exhibitions in a day is found in condition No. 11 of the licence in Form-F which places an embargo upon the licensee that no cinematograph exhibition shall continue after such time not later than l am as may be fixed by the Licensing Authority. The State Government framed the impugned Rule in exercise of its powers under Section 19 of the Act.
13. Undoubtedly as noticed earlier, the Act provides for regularing and not for prohibiting or preventing exhibition of cinematograph films, The purpose of the Act is to regulale exhibition of films and not to prohibit or prevent the exhibition of films by the licensees. The question therefore, that arises for consideration is whether the impugned Rule regulates the exhibition of films or prohibits or prevents the exhibition of films by the licensees in their theatres.
14. The impugned Rule undoubtedly imposes a restriction on the licensees to exhibit not more than four cinematograph shows in a day. The element of restriction or restraint is inherent both in regulative measures as well as prohibitive or preventive measures. The term 'regulate' is defined in the Shorter Oxford English Dictionary, Third Edition, as follows :
" To control, govern or direct by Rule or regulations ; to subject to guidance or restrictions ; to adapt to circumstances or surroundings ; ".
The term 'prohibit' is defined as :
" To hold back ; to forbid ; to interdict ; to prevent, hinder or debar ; to forbid or prevent from doing something."
In other words the term 'prohibit' postulates negative command. Thus seeing from the meaning of the expression 'regulate and 'prohibit', it is clear that the element of restriction is found in both but it varies only in degree
15. In Municipal Corporation of the City of Toronto v. Virago, 1896 A.C. 88 at page 93 of the Report, Lord Davey observed :
" No doubt the regulation and governance of a trade may involve the imposition of restrictions on its exercise both as to time and to a certain extent as to place where such restrictions are in the opinion of the public authority necessary to prevent a nuisance or for the maintenance of order. But their Lordships think there is marked distinction to be drawn between the prohibition or prevention of a trade and the regulation or governance of it, and indeed a power to regulate and govern seems to imply the continued existence of that which is to be regulated or governed. "
In Indu Bhushan v. Rama Sundari, the Supreme Court while considering the scope of the word 'regulation' observed :
" The Dictionary meaning of the word 'regulation' in Shorter Oxford Dictionary is "the act of regulating" and the word 'regulate' is given the meaning 'to control, govern, or direct by Rule or Regulation'. This entry, thus, gives the power to Parliament to pass legislation for the purpose of directing or controlling all house accommodation in cantonment areas. Clearly, this power to direct or control will include within it all aspects as to who is to make the constructions under what conditions the constructions can be altered. who is to occupy the accommodation and for how long, on what terms is to be occupied, when and under what circumstances the occupant is to cease to occupy it, and the manner in which the accommodation is to be utilised. All these are ingredients of regulation of house accommodation and we see no reason to hold that this word 'regulation' has not been used in this wide sense in this entry. "
It would therefore, seems to me reasonable to deduce that the word 'regulation' is a word of broad import having wide meaning comprehending all facets not only specifically enumerated in the Act but also embrace within its fold the powers incidental to the regulation envisaged in good faith with a view solely to the public welfare. Court has to recognise this power of the Government in public interest.
16. In order to find out the true scope of the impugned Rule whether it 'regulates', or 'prohibits or prevents' the exhibition of cinematograph shows, it is necessary to ascertain what the expression 'regulating exhibition by means of cinematograph' really means. It is common knowledge and experience that exhibition of cinemas or cinematograph films in theatres means the exhibition of daily shows or the shows in a day and not each show in a day. One of the purposes of the Act is to regulate exhibition by means of cinematographs. It would, mean, regulating exhibition of cinematograph shows in a day and not each show in a day. What the impugned Rule provides for is that no licensee shall exhibit more than four cinematograph shows in a day. It does not either prohibit or prevent the licensees from exhibiting cinematograph shows in any day. On the other hand, his right to exhibit cinematograph shows everyday is not taken away but continued subject to the condition of exhibiting not more than four cinematograph shows in a day. It only regulates the exhibition of cinematograph shows in a day, that is, not more than four shows. It is impossible to conceive that under the provisions of the Act, once a licence is granted, the licensee is clothed with unrestricted right to exhibit cinematograph shows all the twenty-four hours of the day. The right is certainly subject to regulation in the interest of general public. The argument that the impugned Rule either prohibits or prevents the licensees from exhibiting cinematograph films and it is not regulatory has no force. The only restriction placed upon the licensee under the impugned Rule is not to exhibit more than four cinematograph shows in a day.
17. In D. K. V. Prasad Rao's case6, the validity of Rule 12(3) made by the rule-making authority under the Andhra Pradesh Cinemas (Regulation) Act, (4/1955) which provided for fixation of maximum rates for admission to theatres came up for consideration. The validity of the Rule was questioned among others, that it infringed the Petitioner's fundamental right to carry on trade or business of exhibiting cinematograph shows and, it was beyond the provisions of the Act and the competence of the rule-making authority.
The case of the petitioners was presented on these lines:
The Petitioners are either proprietors or licensees of the theatres at their respective places of business. They constructed the theatres at a huge cost. They provided all amenities as per law. Pursuant to the licences granted under the provisions of the Act and the rules in the prescribed 'B' Form to exhibit cinematographs, they are doing their business. As owners thereof and incident to their business avocation, they have got a right to fix the rates of admission to permit the persons to enter into different classes to witness the cinematographs. But the respondents have impeded their free right to fix the rates of admission at their choice. The Act was legislated with the sole object to regulate only to ensure safety to the cinegoing public in their theatres as enjoined under Section 6 and health and sanitation, as incidental to regulation, Sections 3 and 5 of the Act arc intended to operate only in that field. Section 11 delegates power to the State Governmet to make rules regulating to work out successfully in implementation of the aforesaid purpose. Rules are initially made to meet those purposes. But the price control of cinema tickets is not within the purview of the Act and the Rules. There-fore, the fixation of maximum rates of admission to different classes cannot be said to carry out any of the purposes of the Act. There is no specific provision under the Act empowering the State Government or the Licensing Authority to fix the rates of admission. So, the rule-making power under Section 11 cannot travel beyond the above 'purposes'. The power to fix rates of admission is a Legislative Act. If the Legislature intended to invade into those right of fixation of rates of admission, being a Legislative Act, the Legislature would have specifically provided for such a power under the Act itself but the Act does not envisage any such power. A reading of the preamble, all the Provisions of the Act and the Rules, does not indicate any such power being given by the Legislature. Even otherwise, it is an unreasonable restriction on the exercise of their fundamental right enshrined under Article 19 of the Constitution. Therefore, it is unconstitutional offending Article 19(1)(g) of the Constitution.
On the other hand, it was contended on behalf of the respondents that the Act itself is a regulatory measure. The Provisions of Sections 3 and 5 of the Act read in the light of its preamble, clearly contemplates that the legislature intended to regulate all the steps in the business inclusive of the right to fix the rates of admission. The regulation of exhibition, therefore, includes the power to fix maximum rates of admission to different classes for entry into the theatres by the cine-going public. This power is incidental to the power of regulation of exhibiting cinematographs, to prevent the arbitrary exercise of power by the owners of the theatres or lessees thereof so as to avoid unhealthy competition in exhibiting the cinematographs-Thus it is incidental to the main purpose of the Act.
On a consideration of these rival contentions, the Court held :
"The legislature indicated in Section 3 read with Section 5 and preamble laying down its broad policy specifying the purposes; adumbrated the powers and vested them in the Licensing Authority or notified officer and the State Government to carry out them. Power was given to the State Government to make Rules regulating such conditions, restrictions and terms subject to which the licence could be granted and the general control. Thus, it could be seen that the purposes mentioned are neither exhaustive nor conclusive. It is implicit in the nature of the business of exhibiting cinematographs that several incidental restrictions, conditions or terms are to be imposed for the successful operation of the exhibition of cinematographs. Therefore, it may not be possible or practicable to specify,particularise or enumerate with precision in the Act as a catalogue, It depends upon varying and fluctuating factors depending upon the local exigencies. Under these circumstances, the legislature felt expedient to leave the details to be worked out by the Rule-making authority. Thus the object of the Act does not appear to confine its operation only in the matter of construction and reconstruction of theatres. On the other hand it appears to have animated to give power to make rules to embrace all tht legitimate activities connected with the exhibition of cinematographs. When legislature while empowering the Government to make Rules enumerated its policy deliberately in broad language "terms, conditions and restrictions" subject to which licence may be granted to exhibit cinematographs, it appears to have intended that the Rules thus made would subserve not merely the enumerated but any other legitimate incidental purpose necessary to carry them out effectually. The object of the cinematograph is to impart education or amusement to the cinegoing public and therefore, it is of a welfare measure. Consequently, the fixation of maximum rates of admission to cinema theatres is implied in the rule-makiag powers which have to be exercised in public interest.
"The power to regulate includes the power to restrain and embrace the idea of fixing limitations and restrictions on the acts usually done in connection with the right to trade or business under existing licence and includes the power to tax or to exempt from taxation. But in exercise of this power, the Government have no right to impose tax for revenue ".
(as summarised in paras one and two of Head Note (B) (Emphasis is supplied) The Court further proceeded to hold at page 79 :
" The fixation of the rates of admission has thus become an integral and essential part of the power or regulation of exhibition of the cinema-tographs. It does not have the inevitable effect of driving out the licensee from the trade or business. In other words, it assures orderly exercise o right to trade, business, avocation or occupation ".
18. In Vishnu Talkies case3, the validity of the condition or restriction included in the licencegranted to the petitioner at the time of renewal of his Licence by the District Magistrate, Ranchi, under the Bihar Cinemas (Regulation) Act, (Act 15/1954) came up for consideration The Condition included in the renewal licence reads :
" 8 (b) : Number of shows to be held daily in the cinema will be four i.e. noon, 3 p.m. 6 p.m. and 9 p.m.. No other show will be held in any circumstances without obtaining prior permission of the Licensing Authority. The time of the daily show should be changed only after obtaining the permission of the Licensing Authority ".
One of the contentions canvassed before the Division Bench of the Patna High Court in the above case was that the action of the Licensing Authority in imposing the restrictions under the impugned Rule was not regulatory in character but a prohibition on carrying on the Petitioner's trade or business and such an executive action de hors the Constitutional validity of the provisions of the Act and so it must be struck down. Repelling this argument, S. K. Jha, J. who spoke fpr the Bench observed ;
" In my view there is great force in the contention of the learned Advocate General that even if it be held that the provisions of the Act are to be so construed as to be merely regulatory in nature, even so, as has been held by the Supreme Court in Ramdhandas v. State of Punjab , regulation of hours of work or putting time limits upon certain nature of works are merely regulatory in nature. When ??? the public interest a restriction has been sought to be put not to exhibit any cinematograph films before 3 p.m. it cannot attract the principle enunciated by their Lordships in a number of cases that a restriction which is in the nature of an imposition or a complete ban was bound to attract the property and trade Clauses in Article 19 ".
The provisions of the Act are analogous to the provisions of Acts that came up for consideration in D.K.V. Prasada Rao's case6 and Vishnu Talkies Case3. The ratio of the above decisions in my opinion support the view I take in the case by parity of reasons.
19. The decision of this Court in A. Shelvarajen's Case1 was strongly relied upon by the Learned Counsel for the Petitioners. The facts of the case are these :
The Petitioner was exhibitor of a travelling cinematograph show. In the year 1960, he applied for a licence under the provisions of the Hyderabad Cinemas (Regulation) Act, 1952 to exhibit his cinematograph shows in a village called Gangavathi in the District of Raichur, and he was granted a licence authorising him to exhibit his cinematograph shows during a period of four months. He again made another application for renewal of that licence for a further period of four months during the year 1960. His application was rejected by the Licensing Authority on the ground that under Rule 67 of the Hyderabad Cinematograph Rules, 1953, as amended by the notification issued by the State Government on 19-11-1960, no licence for a travelling cinematograph show could be issued more than once during the same year. Tho Petitioner then appealed to the State Government under Section 5(3) of the Act. His appeal was dismissed. It was against these orders made by the Licensing Authority in the first instance and later by the State Government, the Writ Petition was filed.
Rule 67 before its amendment on 19-11-1960 was that "no building constructed of inflammable materials shall; be licensed for a period longer than four months a time". After its amendment on 19-11-1960, it stipulated that "a building constructed of inflammable materials may be licensed for any period not exceeding four months and a licence granted in respect of any such building shall not be renewed again within thesame year for the same place''. The refusal of the renewal of the Petitioner's licence was under the amended Rule which had come into force when his application for renewal had to be considered. The vali-dity of the amendment brought to Rule 67 was questioned in the above Writ Petition.
The validity of the amended Rule was questioned on the ground that it was so unreasonable as to be struck down as invalid and it had the effect of depriving the Petitioner's fundamental right guaranteed to him by Article 19(l)(g) of the Constitution and therefore, void. According to the Petitioner, the Rule resulted in partial deprivation of bis fundamental right to carry on his trade or business since under that Rule a person could not carry on the businessof exhibition of travelling cinematograph shows for more than four months during the year and during the remaining 8 months, the Rule brought about a total deprivation, of the right of the Petitioner to conduct the said business. On behalf of the State, it was contended, that the new rule which imposed no more than reasonable restriction on the fundamental right, was fully. within the competence of the State Government and was therefore, beyond the criticism that it violated the fundamental right guaranteed by Article 19(l)(g) of the Constitution.
appeal was dismissed. It was against these orders made by the Licensing Authority in the first instance and later by the State Government, the Writ Petition was filed.
Rule 67 before its amendment on 19-11-1960 was that "no building constructed of inflammable materials shall; be licensed for a period longer than four months a time". After its amendment on 19-11-1960, it stipulated that "a building constructed of inflammable materials may be licensed for any period not exceeding four months and a licence granted in respect of any such building shall not be renewed again within theseme year for the same place''. The refusal of the renewal of the Petitioner's licence was under the amended Rule which had come into force when his application for renewal had to be considered. The validity of the amendment brought to Rule 67 was questioned in the above Writ Petition.
The validity of the amended Rule was questioned on the ground that it was so unreasonable as to be struck down as invalid and it had the effect of depriving the Petitioner's fundamental right guaranteed to him by Article 19(l)(g) of the Constitution and therefore, void. According to the Petitioner, the Rule resulted in partial deprivation of bis fundamental right to carry on his trade or business since under that Rule a person could not carry on the businessof exhibition of travelling cinematograph shows for more than four months during the year and during the remaining 8 months, the Rule brought about a total deprivation, of the right of the Petitioner to conduct the said business. On behalf of the State, it was contended, that the new rule which imposed no more than reasonable restriction on the fundamental right, was fully. within the competence of the State Government and was therefore, beyond the criticism that it violated the fundamental right guaranteed by Article 19(l)(g) of the Constitution.
The validity of the argument addressed about the unreasonableness of the new rule was not considered by the Court, since the new rule in the form in which it stood, after it replaced the old one was, in the opinion of the Court, in excess of the statutory provision authorising the rule-making authority to make rules under the Act. There-upon, the Court proceeded to consider the provisions of the Act in the matter of granting licence to exhibit cinematograph shows in permanent as well as non-permanent buildings such as tents and came to the following conclusions : The Act made it permissible for the exhibitor not only to exhibit the shows in a permanent building but also in a non-permanent building such as a tent and the only restriction in the Act was that an exhibitor whether he exhibits his shows in a house or a building or a tent or any other place such as the one referred to in Section 2(c) should, before making such exhibition, obtatin a licence under the Act. It was not the legislative intent that cinematograph shows which were regulated by the Act should be exhibited only in permanent buildings or that if they were exhibited in non-permanent buildings such as tents, a person should not be allowed to exhibit his shows in such non-permanent buildings throughout the year. If it was the intention of the legislature that the exhibition of a cinematograph shows in a place other than a permanent building should be permitted only during a portion of the year, it was for the legislature to make a provision in that regard in the Act, A person exhibiting cinematograph shows in a non-permanent building possessed a right under the provisions of the Act to make successive applications in the same year for a licence to exhibit his cinematograph shows in a non-permanent building. The period of four months prescribed under the new rule as the maximum period for which a licence for the exhibition of a cinematograph show in a non-permanent building may be granted, may not subject to any criticism that the rule fixing that period was beyond the competence of the rule-making authority. But in regard to provisions contained therein that once a licence for the exhibition of cinematograph shows in a non-permanent building constructed with inflammable materials was granted, no further application shall be made or entertained during the same year for the grant of another such licence or the licence granted shall not be renewed again would amount to imposing fetters on the duties of the Licensing Authority by the rule-making authority which was not imposed by the legislature and not to compel such authority to abdicate its statutory duties and functions which it had to perform under the provisions of the Act. The right possessed by a person under the provisions of the Act to make successive applications in the same year for a licence to exhibit his cinematograph shows in a non-permanent building, cannot be taken away by making a rule by the rule-making authority as the amended rule 67 sought to do which was clearly in excess of the power under which the rule-making authority made the rule and was also clearly repugnant to the statute. So it was held that the rule was ultra vires and unenforceable.
One other argument canvassed on behalf of the State was that by the amended Rule 67, the State Government merely regulated the cinematograph exhibitions for securing public safety and therefore, the rule fell within the competence of the rule-making authority as provided under the provisions of the Act. This argument was repelled on the ground that if the State Government prohibited the exhibition of cinematograph shows for a period of 8 months in a year in a non-permanent building, it cannot be said that it regulated the cinematograph exhibitions. The observation of the Court is found at page 39 reads :
" The word ' regulation ' when it occurs in a statute, has to be interpreted having regard to the context in which that word occurs, And when that word occurs in a licensing legislation such as Hyderabad Cinemas (Regulation) Act, it is not possible to interpret that word so as also to confer power to prohibit the performance of the thing which can be done under a licence. The word 'regulation' is distinct from prohibition or 'prevention' and unless there is anything in the statute justifying such interpretation, the word 'regulation' cannot be equated with prohibition or prevention' The very expression 'regulation' connotes continued existence of the thing to be regulated, and if as the State Government has done in this case, a person who has once exhibited his shows in a non-permanent building for four months has no right to exhibit such shows during the remaining eight months, no one can suggest that during those eight months when the exhibitor cannot exhibit his shows at all the State Government is regulating the exhibition of cinematograph shows by that person who is altogether prevented or prohibited from making any such exhibition during that period. If he is permitted during that period also to make his exhibition, what the State Government has, is, the power to make a rule regulating that exhibition, provided the exhibition is continued and going on, and if it altogether stops such exhibition, what the Government does is not to regulate it but to prohibit it or stop it."
The enunciation of His Lordship Somnath Iyer J. as he then was, reproduced above, in my opinion, does not lend sup-port to the contentions of the Petitioners that the impugned rule is prohibitory in nature and not regulatory and hence the same is beyond the rule-making power of the State Government. The observation of His Lordship that "the very expression 'regulation' connotes continued existence of the thing to be regulated", if applied to the impugned rule, the thing to be regulated namely exhibition of film shows continued in existence, as the regulation of exhibition of film shows in the context in which that expression is used in the Act, to be taken, exhibition of films in a day and not of each show in a day in its isolation and if it is considered in that way - I have no doubt that it ought to be so - there is no scope for holding that the thing to be regulated ceased to be in existence on account of the licensee being permitted to exhibit not more than four shows in a day under the impugned rule. The restriction imposed by impugned rule seems to me merely regulates and not prohibits or prevents the exhibition of film shows. The facts of Shelvarajan's case1 are different from the present case inasmuch as in that case the question that came up for consideration was whether it was competent to make a rule under the regulatory provision that a person who had once exhibited his film shows in a non-permanent building for a period of four months has no right to exhibit film shows in that building during the remaining 8 months. His Lordship held against, such power being vested in the State Government, as no-one could suggest that during those 8 months when the exhibitor could not exhibit his shows at all, the State Government by making the rule, was regulating the exhibition of cinematograph shows by the person who was altogether prevented or prohibited from making any such exhibition during that period by the denial of licence to exhibit his shows in such building. The situation in the present case is quite different as the licensees are not altogether prohibited or prevented by the impugned rule from exhibiting the daily shows but only the number of shows is restricted not more than four in a day.
20. On the above discussion, I have no hesitation to hold that the impugned rule is for carrying out the purposes of the Act as stipulated under sub-section (1) and falls well within the purview of Clauses (a) and (d)of sub-section (2) of Section 19 of the Act. It does not offend any of the provisions of the Act nor it is beyond the competence of the rule-making authority.
21. The Learned Counsel for the Petitioners have next contended that the impugned rule places an unreasonable restriction to carry on their trade or business of exhibiting cinematograph shows and is violative of Article 19(l)(g) of the Constitution. Sri Achar, Learned Government Advocate has urged that the impugned rule conceived in the interest of general public places a reasonable restriction and is saved by Article 19(6) of the Constitution.
22. Exhibition of approved cinematograph films carried on by the Petitioners in their theatres is undoubtedly a trade or business guaranteed under Article 19(1)(g) of the Constitution. In such trade or business it is generally competent for the State to make regulatory provisions by imposing in the interest of general public reasonable restrictions on the exercise of the right conferred by sub-clause (g) of Clause (1) of Article 19. Such being the case, the question required to be considered is whether the restriction brought upon the licensees under the impugned rule not to exhibit more than four cinematograph shows in a day is a restriction so unreasonable as it is violative of the fundamental rights guaranteed to the Petitioners in carrying on their trade or business under Article 19(l)(g) of the Constitution or the restriction is a reasonable one in the interest of general public and is saved by Clause (6) of Article 19 of the Constitution.
23. The decisions bearing upon the scope and ambit of the fundamental rights guaranteed under Article 19 of the Constitution and the test to be applied in judging the validity of the restrictions imposed on the exercise of those fundamental rights are legion.
24. One of the earliest cases of the Supreme Court on this subject is The State of Madras v. V.G. Row. It was an appeal from an order of the High Court of Judicature at Madras adjudging Section 15(2)(b) of the Indian Criminal Law Amendment Act, 1908 (Act 14/1908) as amended by the Indian Criminal Law Amendment (Madras) Act, 1950, as unconstitutional and void and quashing the Government order whereby the State Government declared a society called the People's Education Society an unlawful Association. The question that was considered by the Supreme Court in the case was whether the restrictions imposed by Section 15(2)(b) on the Petitioner's right to form an association guaranteed by Article 19(l)(c) were not reasonable within the meaning of Article 19(4) and was therefore unconstitutional and void. Explaining the test of reasonableness wherever prescribed, the Supreme Court at page 607 made the following observations :
"It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extant and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all and that the majority. of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable. "
In Narendra Kumar v. Union of India dealing with the scope and ambit of Article 19(1) and explaining the tests to be applied to find out whether the restrictions imposed on the exercise of the fundamental rights guaranteed under Atricle 19 (1) were reasonable within the Clauses (2) to (6) of Article, 19, the Supreme Court made the following observations :
" 17. After Art. 19(1) has conferred on the citizen the several rights set out in its seven sub-clauses, action is at once taken by the Constitution in Clauses 2 to 6 to keep the way of social control free from unreasonable impediment. The Raison D'etre of a State being the welfare of the members of the State by suitable legislation and appropriate administration, the whole purpose of the creation of the State would be frustrated if the conferment of these seven rights would result in cessation of legislation in the extensive fields where these leven rights operate But without the saving provisions that would be the exact result of Art. 13 of the Constitution. It was to guard against this position that the Constitution provided in its Clauses 2 to 6 that even in the fields of these rights new laws. might be made and old laws would operate where this was necessary for general welfare. Laws imposing reasonable restriction on the exercise of the rights are saved by Clause 2 in respect of rights under sub-clause (a) where the restrictions are " in the interests of the security of the State " and of other matters mentioned therein; by Clause 3 in respect of the rights conferred by sub-clause (b) where the restrictions are ' in the interests of the public order ' by Clauses 4, 5 and 6 in respect of the rights conferred by sub-clause (c), (d), (e), (f) and (g) the restrictions are ' in the interest of the general public ' - by Clause 5 which is in respect of rights conferred by sub-clauses (d), (e) and (f) also where the restrictions are 'for the protection of the interests of any Scheduled Tribe'. But for these, saving provisions such laws would have been void because of Art. 13 which is in these words :
" All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall to the extent of such inconsistency be void ; (2) The State shall not make, any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this Clause shall, to the extent of the contravention, be void........"
18. As it was to remedy the harm that would otherwise be caused by the provisions of Art. 13, that these saving provisions were made, it is proper to remember the words of Article 13 in interpreting the words ' reasonable restrictions' on the exercise of the right as uaed in Clause (2). It is reasonable to think that the makers of the Constitution considered the word 'restriction' to be sufficiently wide to save laws 'inconsistent' with Article 19(1), or 'taking away the rights' conferred by the Article, provided this inconsistency or taking away was reasonable in the interests the different masters mentioned in the Clause. There can be no doubt therefore, that they intended the word 'restriction' to include cases of 'prohibition' also The contention that a law prohibiting the exercise of a fundamental right is no case saved, cannot therefore be accepted. It is undoubtedly correct, however, that when, as in the present case, thai restriction reaches the stags of prohibition special care has to be taken by the Court to see that the test of reasonableness is satisfied. The greater the restriction, the more the need for strict scrutiny by the Court.
19. In applying the test of reasonableness, the Court has to consider the question in the background 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. "
25. Keeping these principles in mind, I shall now proceed to examine whether the restriction placed by the impugned rule is a 'reasonable' restriction with due regard to the nature of the business carried on by the Petitioners.
26. Undoubtedly the impugned Rule limits the number of cinematograph shows to be exhibited in a day not more than four in a theatre. That is to say the Petitioners are at liberty to exhibit maximum four shows in a day. No doubt the rule does not specify the commencing and the closing hour between which the four shows are to be exhibited nor the time interval between one show and another. As could be seen from the pleadings, the necessity for the State to place the impugned rule on the statutory rules framed under the Act was the starting of noon show by the licensees primarily in Bangalore thereby bringing the total number of daily shows to five as against the four shows which were being exhibited earlier viz., morning show, matinee, 1st show and 2nd show. As to how the licensees in Bangalore were exhibiting the five shows in a day can be seen from the averments made in para 10 of W P.No, 16170 to 16173/1981 reads :
"The Petitioners submit the duration of a picture (main) will normally be about 2 hours and the approved film will be exhibited for about 10 minutes. Some of the theatres will exhibit slides and commercial shorts for about 10 minutes. Normally the Morning show will be exhibited between 10 a.m. and 12-30 p.m; Noon show between 12-45 p.m. and 3-00 p.m.; Matinee between 3.30 p.m. and 6 p.m.; first show between 6-30 p.m. and 9 p.m. and the second show between 9.30 p.m. and midnight. "
It was stated that this is the time pattern of exhibition of five shows in a day by all the Petitioners.
27. Under Section 12(1) of the Act, the State Government may from time to time issue directions to any licensee or licensees generally, requiring them to exhibit such film or class of films having scientific or educational value, films dealing with news and current events and such documentary films, indigenous films or other films having special value to the public as may have been approved by the State Government in that behalf from time to time and where any such directions are issued under sub-section (1) of Section 12 of the Act, such directions shall be deemed to be additional conditions and restrictions subject to which the licence has been granted. However, the proviso to sub-section (2) stipulates that no direction issued under Section 12 shall require the licensee to exhibit any such film or films exceeding 2000 ft. at or for more than l/5th of the entire time taken for any one show. Under Section 13, the Licensing Authority may from time to time, issue directions to any of the licensee or licensees generally requiring them to exhibit in each show such slides of public interest as may be supplied by the authority and the proviso stipulates that no direction issued under the said Section shall require the licensee to exhibit more than three such slides at or for more than 4 minutes in any one show.
28. The stand taken by the respondents as could be seen from their return is that after the threatreowners started exhibiting five shows in a day, it was found from various reports and the information received by the State, Government that many of the licensees were not exhibiting the approved films and slides as directed by the concerned authorities under Sections 12 & 13 for want of time as their main interest was to exhibit the main film within the short time at their disposal for completing each show. Thereupon the State Government called for particulars from the various authorities and found that either the licensees were not exhibiting the approved films and slides as directed or even if they were exhibiting them, they were exhibiting them immediately after the end of one show and before the incoming cine goers could enter the theatre and occupy their respective seats. There used to be a big rush among the outgoing and incoming cinegoers as the cine goers of the previous show were to come out from the theatre simultaneously when the cinegoers for the next show were to enter the auditorium as there was little time left in between the two shows and in this process of rush some people would be occupying the seats and some people would be in the process of finding out their seats and thereby even if any attempt were to be made by the exhibitors to exhibit the approved films and the slides, all the cinegoers would not have the benefit of the same. Sometimes morning shows were long on account of the length of the film So the morning show would not be over within the time set apart for the morning show. Naturally that show would extended beyond and take some time of the next show. There were no complaints whatsoever from any quarter when the licensees were exhibiting four shows i.e., the morning show, the matinee, the first show and the second show but representations and complaints started coming in only after the licensees began to conduct what is called 'noon show' in between the morning show and the matinee. These circum-stances impelled the State Government to take steps to reduce the number of daily shows, in the interest of general public.
29. Undoubtedly the exhibition of approved films and slides as per the directions to be issued under Section 12 and 13 of the Act are for the benefit of the members of the general public who visit the cinematograph shows. In addition on some occasions, the exhibitors also exhibit trailorfilms by way of publicity among the cinegoers. Besides, the licensees also undertake to exhibit short commercial films of advertisements. All these exhibitions occupy not less than half-an-hour's time in each show. As per the the time pattern of exhibiting five shows stated by the petitioners, the duration of each show is shown as 2 (1/2) hours with half-an-hour interval between one show and the other except the morning show and the noon show where the time interval is reduced to 15 minutes. Would it ever be possible within the time interval of 15 minutes to half-an-hour in between the two shows, for all the out-going cinegoers of the previous show to go out and for all the incoming cinegoers of the next show to enter the theatre and occupy their seats before the commencement of the exhibition of the film at the scheduled time ? In between the two shows, the licensees are expected to get the auditorium cleaned from the health point of view of the cinegoers. During this time naturally the incoming cinegoers will not be permitted to enter the auditorium. Further out of the 2(1/2) hours time set apart for the exhibition of the film, not less than half an hour will be taken for the exhibition of Other films and slides other than the main film. Besides there will be an interval of about 10 minutes in the middle of the mini film show. Normally every Indian language film will be of a minimum duration of about 2(1/2) hours and some time even more. Thus the minimum time that will be required for each show will not be less than three hours if the films other than the main film are also to be exhibited at each show. In this situation certainly the licensees shall have to commence the exhibition of the next show immediately after the end of the previous show which would be even before the incoming cinegoers could enter the auditorium and occupy their seats. In this process certainly most of the cinegoers will be deprived of seeing the approved films and slides which are intended for the benefit of the cinegoers. This would be the situation created, as lightly contended on behalf of the respondents due to the exhibition of five shows in a day by the introduction of noonshow. Could anyone say by exhibiting five shows in a day, any licensee would truly carry out the object and purpose of the Act as adumbrated in the various provisions of the Act subject to which the licence was granted to him. He could do it provided there is sufficient time interval between one show and another. This could be achieved only by reducing the number of shows in a day and reverting to the previous pattern of exhibiting four shows in a day. Merely because a licence is given to exhibit cinematograph shows, it does not mean that the licensee could exhibt films all the 24 hours of the day. He is required to exhibit the cinematograph shows in an orderly manner, more suitable in the interest of the general public. As observed earlier, there is no provision either in the Act or in the Rules restricting the number of shows in a day. The only restriction imposed upon the licensees about the exhibition of film shows, before the impugned rule came to be framed was condition No. 11 of the licence that no cinematograph exhibition shall continue after 1 a.m. In that view, the impugned rule which places restriction upon the licensees to exhibit not more than 4 shows in a day cannot be said to be unreasonable.
30. The argument that the impugned rule will not achieve the desired result as it does not prevent the licensees from exhibiting the four shows continuously without keeping sufficient time interval between one show and another, appears to me no argument at all. Such an argument is most illogical and fallacious. The Government, in my opinion, while framing the impugned rule restricting the film shows to not more than four in a day, has allowed the licensees to arrange the four shows according to their convenience, hoping that they would so arrange the four shows and carry out the object and purpose of the Act in the best interest of the cinegoers and not from the sole point of view of making money or earning profit. Certainly it would have been open to the State Government to prescribe the time during which the four shows were to be exhibted in the day. However, the Government has left it to the discretion and good sense of the licensees to arrange the exhibition of shows in the way they were exhibiting the shows before the impugned rule was made hoping that they would allow sufficient interval between one show and another keeping in view the object of the Act and also the interest of the cinegoers.
31. It was also contended on behalf of the Petitioners that there are provisions in the Act to take action against the licensees for disobedience and contravention of the provisions of the Act and the rules and as such the impugned rule will serve no purpose, nor bring about the intended result. The impugned rule seems to be in aid of the provisions contained in the Act and the Rules already made to carry out the purposes of the Act, more effectively. There is every possibility of depriving the cinegoers of the benefits under Section 12 and 13 of the Act for want of sufficient time interval between one show and another. Taking action for disobedience is one thing and providing for effectuating what is contained in Sections 12 and 13 for the benefit of the cinegoers is totally a different thing. Rule 41-A in my view serves the latter. If Rule 41-A is properly implemented in its true spirit, certainly it would bring about the desired result. The licensees are not expected to behave unreasonably and if they do so, there are provisions in the Act to deal with the situation. Having regard to the facts and circumstances of the case, the context in which the impugned rule was made and considering the nature of the trade or business carried on by the Petitioners, it seems to me that the impugned rule cannot be said to be so unreasonable as to take it out of the purview of Clause (6) of Article 19 of the Constitution Consequently it follows that the impugned rule does not contravene Article 19(1)(g) of the Constitution.
32. The view I take is supported by the decisions in Govind Ram Sharma v. State of UP. & Another2 and Vishnu Talkies Case3. In Govind Ram's Case 2, the validity of the additional conditions included by the Additional District Magistrate, Lucknovv, in the licences for cinematograph exhibitions which have been granted to various Petitioners, on the direction of the State Government under U. P. Cinemas Regulation Act, 1955 (U P. Act 3/56) came up for consideration. The additional conditions sought to be included in the licences granted to the Petitioners were :
(1) That not more than three shows should be held between 3 p.m. and 12-30 a.m. of any working day. No show to be held before 3 p.m. or after 12-30 a.m. without the specific permission of the Licensing Authority to be taken in advance.
(2) There should be no restriction on this number of shows held on Sundays and holidays provided that the last show does not extend beyond 12-30 a.m. (3) No person below 18 years of age should be allowed admission in cinema shows hold at any time before 4 p.m. on working days (This restriction shall not apply no holidays. Holidays would mean holidays including vacations observed by educationa institutions).
(4) In the late night shows, juveniles below 14 years of age should not be allowed admission unless they are accompanied by their guardians".
It was contended inter alia on behalf of the Petitioners that these conditions are per se unreasonable and they are not in the interest of general public also and so they infringe the fundamental rights guaranteed to the Petitioners by sub-clause (g) of Clause (1) of Article 19 of the Constitution. Repelling the contention the Court held that the additional conditions sought to be included in the licences were in the interest of general public and they were not unreasonable. The State Government, therefore, possessed the powers to require the Licensing Authority to add them in the licences. Thus the Court upheld the validity of the impugned additional conditions sought to be included in the licences granted to the Petitioners on the ground that they did not infringe the fundamental right guaranteed to the Petitioners under Article 19(1)(g) of the Constitution.
33. One of the contentions canvassed before the Bench of the Patna High Court in Vishnu Talkies case3 while attacking the validity of the restriction included in the licence granted to the Petitioner at the time of renewal of his licence by the District Magistrate that the number of shows to be held daily would be four viz., noon, 3 p.m., 6 p.m. ; and 9 p.m. and no other show would be held in any circum-stances without obtaining prior permissing of the Licensing Authority etc , was an unreasonable restriction not warranted by Clause (6) of Article 19. Repelling the contention the Court held that the impugned restriction included in the licence was in public interest and was reasonable and so it was expressly saved by virtue of the provisions of Article 19(6) of the Constitution of India.
34. For all the aforesaid reasons, I hold that the restrictions sought to be imposed by the impugned rule are reasonable restrictions, saved by Article 19(6) of the Constitution of India and as such not violative of Article 19(l)(g) of the Constitution.
35. In the view I have taken of the matter, these Petitions fail and the impugned rule must be held valid as it is for the purpose of the Act and within the Competence of the rule-making authority and not violative of Article 19(1)(g) of the Constitution. The rules are therefore discharged. The Petitions stand dismissed.
ORDER BY THE COURT On the validity of Rule 41-A of the Karnataka Cinemas (Regulation) Rules, 1971 that arises for determination in these cases, we have differed in our conclusions. On the questions that arise for determination in these cases and the conclusions reached by us, two questions of law arise for determination and they are :
(1) Whether Rule 41-A of the Karnataka Cinemas (Regulation) rules framed by Government under Section 19 of the Karnataka Cinemas Regulation Act of 1964 (Karnataka Act 23 of 1964) was for purposes of the Act or not ?
(2) Whether Rule 41-A was violative of Article 19 of the Constitution or not ?
In conformity with Section 98(2) of the Code of Civil Procedure and the ruling of the Supreme Court in D. P Sharma v. State of Karnataka (S.L.P. Nos. 9417 to 9421 of 1983), we refer these cases for the opinion of another Hon'ble Judge of this Court on the aforesaid two questions of law in the first intstance.
ORDER Dated 18th September 1984 Rama Jois, J.
These Petitions have been posted before me for hearing on two questions of law, namely -
(1) Whether Rule 41-A of the Karnataka Cinemas (Regulation) Rules framed by Government under Section 19 of the Karnataka Cinemas Regulation Act of 1964 (Karnataka Act 23 of 1964) was for purposes of the Act or not ?
(2) Whether Rule 41-A was violative of Article 19 of the Constitution or not ?
2. The material facts and the provisions of the Act and the rules have been set out in the two separate orders made by Puttaswamy, J. and Kudoor, J. and their repetition is therefore unnecessary. The points urged and the authorities relied on by the Learned Counsel for the parties arc the same as those considered in the two orders.
3. Having had the benefit of going through the two forceful but divergent opinions and the arguments in support of each of the two views, I proceed to furnish my answer to the two questions referred for my opinion.
4. Rule 41-A imposes a condition to the effect that there shall be no more than four cinematograph exhibitions a day. The first question is whether the rule is intravires the provisions of the Act? If it is, the second question is, whether it is violative of Article 19(1)(g) of the Constitution?
5. (i) The objects sought to be achieved by the rule have been set out in the statement of objection. The rule was made under Section 19 of the Act after previous publication as required. The Secretariat file which culminated in the promulgation of Rule 41-A, including the notification calling for objections and suggestions, and the objections to and representation in support of, the framing of the rule received by the Government, was produced by the Learned Government Advocate at the time of hearing.
(ii) The material information available may be summarised thus : It all started, with the information brought to the notice of the cabinet on 12-2-1981, that introducing of a noon-show by the Petitioners and other exhibitors in between the morning and matinee shows, had resulted in not giving scope for keeping the theatres hygenically clean and was contributing to the ill-health of cine-goers and not exhibiting of documentary films and, therefore, the noon-show should be prohibited. Therefore, the matter was considered having due regard to the opinion furnished in the notes prepared, inter alia by the Secretaries of Law Department and Home Department, Ultimately, draft Rule 41-A was prepared on the view that imposing ceiling of four shows per day was necessary to ensure the health and safety of cine-goers and the exhibition of compulsory documentary films. It was published in the Official Gazette (Extraordinary) dated 29th April 1981 inviting objections and suggestions.
(iii) There were number of objections to the rule. But all those were only from cinema exhibitors, who are either Petitioners or persons similarly situated like the Petitioners and again from the Association of Exhibitors including the Film Chambers. There was also representations, in support of the proposed rule. Out of them 14 were from film producers and directors and 7 from cine-goers.
(iv) The objections raised by all the exhibitors were almost similar and they were as follows :
(1) Noon-shows are extremely popular.
(2) It is possible to accommodate Kannada films because of noon-shows.
(3) Noon-shows add to the economic viability of cinema theatres.
(4) Extra labour force is employed in the theatre because of noon-shows and the labour force also gets extra payment.
(5) Noon-shows are a source of Government revenue by way of entertainment-tax, surcharge etc (6) Noon-shows will not come in the way of maintaining cleanliness.
(7) Banning of noon-shows would be an unreasonable restriction that would contravene Article 19(i)(g) of the Constitution.
(v) In the representations made welcoming the framing of the rules, the points made were -
(1) Five shows, one alter another from 10-00 a.m. of a day to 1-00 a.m. of the next day were resulting in -
(a) heavy rush at theatres between two shows as a result entering into and coming out of theatres had become highly inconvenient and hazardous,
(b) stampede and giving room for pick-pocketing,
(c) lack of adequate time to clean the auditorium, lavatories resulting in unhygenic conditions.
(d) lack of time for exchange of fresh air to that of foul air,
(e) commencing of show even before cine-goers could enter the auditorium and take their seats,
(f) not exhibiting approved films i.e., news-reels for want of time,
(g) switching off air-conditioners/coolers, fans, exhaust fans to save electricity which was causing lot of discomfort, and
(h) creating problems of conveyance and traffic jam, overloading of buses etc. The grounds urged by the exhibitors opposing the rule and by others supporting the rule, were considered by the Government and on such consideration the Government decided to promulgate Rule 41-A and it is also so stated in the statement of objection.
6. On some of the material facts which are not disputed by the Petitioners are that according to condition No. 11 of the licence held by each of the Petitioners, no show is permitted beyond 1-00 a.m. and that starting of a show earlier to 10-00 a.m. is not being resorted to, as it is impracticable. The resultant position is that only 15 hours in a day are available for the exhibition of films. Within this period, for each show the time is required to be set apart.
(i) for exhibition of the film which takes two to two and half hours, depending upon its length,
(ii) for compulsory exhibition of certified films which could be of the length of 2,000 feet, or could occupy one fifth of the duration of one show as prescribed in Section 12,
(iii) for interval, which has to be atleast 10 minutes,
(iv) for advertisements having due regard to the number of advertisements, and
(v) trailers of coming films on occasions when they are exhibited.
Further, reasonable time must be allowed between one show and the other for ingress and egress, for exchange of free air and for cleaning of auditorium.
7. Sufficient provision has to be made in respect of each of the above items was not and could not be controverted by the Petitioners. However, the Learned Counsel for the Petitioners maintained that sufficient time could be allotted to each of the aforesaid item even having five shows per day.
8. Learned Government Advocate contended that within a span of 15 hours commencing from 10-00 a. m. of a day to 1-00 a. m. of the next day, it was impossible to allot reasonable time for each of the aforementioned items and in fact the grievance of the public which came to the notice of the Government was that great inconvenience and discomfort was being caused to the cine-goers for want of allotment of sufficient time for each of the aforesaid matters which was solely due to the increase of shows from four to five and, therefore, the rule was framed.
9. (i) In the light of these facts, the first point for consideration is, whether the rule is intravires the power of the Government under the Act ?
(ii) The provisions of the Act, which are relevant to decide the issue are -
(a) The preamble which indicates that the Act is meant to provide for regulating cinematograph exhibition in addition to the licensing of places for such exhibition.
(b) Section 6(2) which requires that in granting licence the Licensing Authority must have due regard to the interest of public.
(c) Section 8(b) which requires the Licensing Authority to ensure safety, convenience and comfort of cine-goers.
(d) Section 12, which empowers the Government to require licences to exhibit at each show films approved by the Government, not exceeding 2,000 feet or one fifth of the duration of one show.
(e) Section 19(2)(2) which empowers the Government to frame rules for carrying out the purposes of the Act.
(f) Sections 19(2)(d) and (e) which empowers the Government to frame rules to ensure public safety and to regulate means of entrance and exit and to prevent disturbances threeat.
(iii) On consideration of the object and purpose for the achievement of which the rule is framed, I am convinced that the rule is for the purpose of the Act as discernible from the aforesaid provisions of the Act and, therefore, intravires.
10. (i) One of the submission made for the Petitioners was that even if it were to be held that the object with which Rule 41-A was framed was within the purview of the provisions of the Act, Rule 41-A does not achieve those purposes, as the timings of shows, or the time allotted for various items set out earlier, would remain the same in respect of the four shows even after reduction of one show.
(ii) I find no merit in the submission. As pointed out by the Government Advocate, once the number of shows was reduced from 5 to 4, by virtue of Rule 41-A, there was ample power given to the Government under Section 14 of the Act to issue order or direction of general character to the Licensing Authorities, directing them to refix the timings of shows, as also to fix sufficient time for various purposes and also to ensure the compulsory exhibition of approved films. Learned Government Advocate also submitted that the Government was about to issue such directions, but could not issue as the operation of the rule was stayed by this Court.
11. (i) I shall now proceed to consider the second question. While Article 19(l)(g) does confer the right to do business, clause (6) empowers the State to impose reasonable restrictions in public interest on the exercise of the right. The tests to be applied to decide as to whether the restrictions imposed are reasonable and in public interest or not, have been propounded by the Supreme Court in the long line of decisions, some of which have been referred to in the two orders.
(ii) In the case of Laxmi Khandasari v. State of U. P., the validity of a notification issued under Clause-8 of Sugar Cane (Control) Order imposing a total ban on production of Khandasari sugar between 10th October to 1st December 1980 was challenged on the ground of violation of Article 19(l)(g). The Court held, as the rule was intended to reduce shortage of sugar and ensure a more equitable distribution of sugar, the restriction was in public interest and was not unreasonable. In the said decision, the Supreme Court enunciated the following principles :
"We, therefore, fully agree with the contention advanced by the Petitioners that where there is a clear violation of Article 19(l)(g), the State has to justify by acceptable evidence, inevitable consequences or sufficient materials that the restriction, whether partial or complete, is in public interest and contains the quality of reasonableness.
As to what are reasonable restrictions would naturally depend on the nature and circumstances of the case, the character of the statute, the object which it seeks to serve, the existing circumstances, the extent of the evil sought to be remedied as also the nature of restraint or restriction placed on the rights of the citizen. It is difficult to lay down any hard or fast rule of universal application but this Court has consistently held that in imposing such restrictions the State must adopt an objective standard amounting to a social control by restricting the rights of the citizens where the necessities of the situation demand.
p>Further restrictions may be partial complete, permanent or temporary, but they must bear a close nexus with the object in the interest of which they are imposed.
Another important consideration is that the restrictions must be in public interest and are imposed by striking a just balance between the deprivation of right and danger or evil sought to be avoided."
I will proceed to test the validity of Rule 41-A in the light of the above criteria.
12. As far as the nature of the business is concerned, it is such, as would necessitate the coming together of large number of people and their staying at the theatre for about three hours Further after every show, those persons have to go out and more or equal or a little less number of people have to get in. Naturally the public interest demands, that their coming and going must be made easy; that their stay during the period should be made comfortable; that their health should be safeguarded. Further the exhibition of approved films which is in national interest has to be ensured. Every one of the grounds which persuaded the Government to make the rule are intended to remedy the mischief resulting from having as many as five shows within a span of 15 hours and to ensure the health, safety, convenience and comfort of the cine-goers, who constitute the very source of income of the Petitioners' business. Therefore I am of the view that the restriction imposed under Rule 41-A is in public interest. The restriction cannot also be regarded as unreasonable for, prior to introduction of noon-show some time earlier to the proposal to frame Rule 41-A, the Petitioners and others were having only four shows, namely, the morning show, the matinee, the first show and the second show, and the rule by fixing the maximum of four shows a day only restores the status-quo ante and does not deprive or unreasonably curtail, the right of the Petitioners to do the business. Having regard to the intensity of habit and desire of the people to see cinematograph exhibitions prevailing, it can safely be presumed that if one show is reduced, the cine-goers who would have been distributed to five shows would on most of the days get distributed to four shows. Even on the basis that by reduction of one show there would be reduction of income of the Petitioners to some extent, it cannot be helped, for, when there is clash between public interest and individual right, the latter must yield to the former.
13. For these reasons, I respectfully disagree with the opinion expressed by Puttaswamy, J. and I respectfully agree with the opinion expressed by Kudoor, J.
14. In the result, I hold that Rule 41-A is valid and make the following order :
(a) Rule be discharged. (b) Petitions be dismissed without order as to costs. ORDER OF THE COURT Dated 9th October 1984
In these Petitions under Article 226 of the Constitution, the Petitioners have challenged the validity of Rule 41-A of the Karnataka Cinemas (Regulation) Rules of 1971('the Rules') framed by Government under Section 19 of the Karnataka Cinemas (Regulation) Act of 1964 (Karnataka Act 23 of 1964) ('the Act') principally on two grounds (i) that the rule was beyond the rule making power of Government and (ii) that the rule was violative of Article 19 of the Constitution. On difference of opinion between us on both the grounds, these cases were referred to Rama Jois, J. who has furnished his opinion concurring with the opinion expressed by Narayana Rai Kudoor, J., who had held that the rule was jntravires of the Act and was not violative of Article 19 of the Constitution. In the light of the opinions expressed by the majority, the challenge of the Petitioners to the impugned rule is liable to be rejected.
2 . In the result, we hold that these Writ Petitions are liable to be dismissed. We, therefore, dismiss these Writ Petitions and discharge the rule issued in these cases. But, in the circumstances of the cases, we direct the parties to bear their own costs.
Orders on the Oral Application made by the Petitioners for Certificate of Fitness to appeal to the Supreme Court and for Stay.
After we dictated our order dismissing these Writ Petitions, Learned Counsel for the Petitioners seek for a certificate of fitness to appeal to the Supreme Court under Articles 133 and 134A of the Constitution and for stay of the operation of our order atleast for a period of one month from this day.
2. Learned Counsel for the Petitioners contend that the order made by us holding that the impugned rule was intravires of the Act and was not violative of Article 19 of the Constitution raises substantial questions of law of general importance and the same needs to be decided by the Supreme Court and these are fit cases for grant of a certificate of fitness to appeal to the Hon'ble Supreme Court and for grant of stay.
3.Sri M. R. Achar, Learned Government Advocate appearing for the respondents opposes the oral applications made by the Petitioners for grant of certificate of fitness to appeal and for stay.
4. In upholding the impugned rule, the majority has only applied the principles already settled by the Supreme Court. In reaching a different conclusion also, the minority opinion had also applied the principles already settled by the Supreme Court, In this view, we are of the opinion that these cases do not raise substantial questions of law of general importance that needs to be decided by the Supreme Court. We, therefore, reject the oral applications made by the Petitioners for grant of certificate of fitness to appeal to the Supreme Court.
5. When these cases were pending before this Court, the Petitioners had the benefit of an order of stay. But, that by itself cannot be a sufficient ground to grant an order of stay. With due regard to the majority opinion and the interest of the public, we are of the view that these are not fit cases in which we should grant an order of stay even for a limited period. We, therefore, refuse the prayer of the Petitioners for stay.
6. As and when applications for certified copies are made by any of the Petitioners, we direct the office to supply them with utmost expedition and in any event within three days from the date such an application is made incorporating only the cause title of the case for which such application is made.