Patna High Court
Bhola Singh And Ors. vs The State Of Bihar And Anr. on 25 January, 1972
Equivalent citations: AIR1972PAT412, AIR 1972 PATNA 412
JUDGMENT Wasiuddin, J.
1. The petitioners in all these five writ applications are proprietors and owners of cinema houses situated in the heart of metropolis of Patna. The petitioner in C. W. J. C. No. 409 of 1969 is the proprietor of Elphiston Picture Palace. The petitioner of C. W. J. C. No. 410 of 1969 is the proprietor of Regent Theatre. The petitioner of C. W. J. C. No. 411 of 1969 is the proprietor of Pearl Cinema. Petitioners 1 to 3 of C. W. J. C. No. 412 of 1969 are the manager and proprietors of Rupak Cinema and the petitioner of C. W. T. C. No. 413 of 1969 is the proprietor of Ashok Cinema. In all these five petitions common questions of law and facts arise and, therefore, all these petitions have been heard together and this judgment will govern all these cases.
2. The petitioners in all these cases have sought for a declaration that the direction contained in Annexure "4D" to the petitions be declared as ultra vires, void and illegal; that a writ in the nature of a writ of certiorari be issued quashing the order of respondent No. 2, contained in Annexure "7" to the petitions and further that they have also sought for the relief that a writ in the nature of mandamus be issued permanently restraining the respondents, that is, the State of Rihar and the District Magistrate, Patna from enforcing the impugned direction regarding the air conditioning of the cinema houses as a condtion precedent to the renewal of their licences.
3. The relevant facts which are not disputed and which have given rise to these apparitions may be briefly stated as follows: The petitioners are citizens of India and have been carrying on the business of exhibiting cinematograph films within the town of Patna within the limits of Patna Municipal Corporation from a very long time. It appears that sometime in the year 1961 the Government took a decision that these cinema houses should be air conditioned. Annexure "4D" which is one of the impugned documents is a letter dated the 13th of January, 1961 from the District Magistrate, Patna addressed to the different cinema houses including the present petitioners regarding the air conditioning of the cinema houses at Patna. It was stated in the letter that the proposal for air conditioning of the cinema houses at Patna was under consideration of the Government for a long time but the same could not be executed due to some difficulties and further that licences to the Cinema houses were granted on the condition that they will have to be air conditioned as soon as the machines and necessary electric-energy for air conditioning will be available. It was further stated in the letter that the Government had decided that the Cinema houses of these present petitioners must be air conditioned within two years, that is, till the 31st of December, 1962. A warning was also given to them in this letter that if the cinema houses are not air conditioned by the 31st of December, 1962, then the licences will not be renewed with effect from January, 1963, The petitioners could not air condition their Cinema houses and then the Government sent another letter which, is Annexure "4C". This letter is dated the 15th of January, 1962 and it was from Sri S. C. Chaudhari, Under Secretary to the Government of Bihar, Political General and Transport Department (General Branch) and addressed to the Branch Secretary, Bengal Motion Picture Association, Janak Kishore Road, Kadam Kuan, Patna. It was also on the subject of air conditioning and it may also be noted that the foot note of this letter shows that copies of this letter had been also forwarded to the present petitioners. It appears from this letter that the Association had sent a letter to the Deputy Minister General Administration and there was also a joint representation of the proprietors of the Cinema houses at Patna to the Government. In the letter it was stated that the Government had decided that the condition imposed in the licences in respect of Ashok Cinema, Veena Theatre and Rupak Theatre should not be withdrawn as the original licences were granted to them on the condition that they should ultimately air condition their respective Cinema houses on the availability of air conditioning plants. As reeards Elphistone Picture Palace, Pearl Theatre and Regent Cinema, it was stated in the letter that their cases were duly considered and with an eye to the con-fort and other amenities of the cinegoers, the Government had also been pleased to decide that they should also air condition their Cinema balls by 1962. It was also pointed nut in that fetter that this should be apprcciated that the Government had allowed ample time to air condition their Cinema houses and they see no reason as to why they would feel any difficulty if they start making sincere efforts right then with a view to completing the air conditioning of their Cinema houses by the tar-Get date. It was also impressed on them that it was the necessity which should have been done in public interest. The question whether there was such a condition precedent before the last renewal is a matter which I will deal separately when I take up a discussion of the points which have been urged for consideration.
The next letter to which I would refer in accordance with the chronological order is Annexure "4G". This letter is dated the 16th of March, 1964. This was from the Additional Secretary to the Government of Bihar, Political General and Transport Department (General Branch). A copy of this was sent to the District Magistrate and also to the Sub-Divisional Officer, Sadar, Patna. In this letter it was stated that on consideration of all the matters contained in the letter dated the 11th of January, 1964 from the proprietors of all the Cinema houses, the Government had arrived at this conclusion that the availability of foreign exchange according to necessity seems impossible within a short period and hence on reconsideration of the letter, it was the decision of the Government that the time given to the said proprietors of the Cinema houses upto the 31st of June, (?) 1964 be extended to the 31st of December, 1966. At the same time the proprietors of the Cinema houses concerned were also warned that if the Government find that any Cinema owner has not taken proper step in this direction during this period, then in that case, after the expiry of that period, his licence will be cancelled. It was also requested in that letter that the period of licence of all the Cinema owners of Patna be extended and notices be issued to them in this respect under legal advice.
I would then refer to the letter Annexure "4F". This letter is dated the 28th of July, 1966 and it was also from the Secretary to the Government of Bihar, Political General and Transport Department (General Branch) addressed to the District Magistrate, Patna. A copy of this letter was forwarded to the Honorary Secretary, Eastern Indian Morion Pictures Association aforesaid. It is clear from this letter that although directions and warnings had been given yet till the 28th of July, 1966 the air conditioning had not been done. It was stated in the letter that the Government after reconsidering all the aforesaid facts contained in the petition dated the 15th of March, 1966 filed by the Honorary Secretary of Eastern Indian Motion Pictures Association, Patna Branch, the Government have decided that as per direction given to all the Cinema proprietors of Patna, the time given to air condition by the 31st of December, 1966 may be extended for two years, that is, upto the 31st of December, 1968 on this condition that they will air condition their respective Cinema houses within that period. Request was also made in this letter that the contents of this letter may be communicated to the proprietors of the Cinema houses at Patna.
The next letter to which I would refer in its chronological order is Annexure "8". This was a letter addressed to all the Cinema houses concerned and it is dated the 12th of October, 1968. The attention of all the Cinema owners was drawn in respect of the air conditioning of their Cinema houses and they were requested to inform within a week as to what step had been taken by them regarding air conditioning by the 31st of December, 1968, failing which necessary steps would be taken by the Government in respect of to same.
The next letter in this connection is Annexure "4E". This was a letter dated the 19th of March, 1969 from the District Magistrate inviting the attention of the Cinema owners to this effect that neither they had sent any report as to what steps they had taken for the air conditioning nor they had air conditioned the Cinema houses as per Government order. It was definitely stated in the letter that the cinema licences which were in force upto the 31st of March, 1969 will not be renewed. In response to this letter another representation was filed to the District Magistrate, Patna and it is Annexure "4A". The District Magistrate again by the letter (Annexure "4B") dated the 29th of March, 1969 drew the attention of the Cinema owners concerned to the letter dated the 19th of March, 1969 and also stated that no steps had been taken by them for the purpose of air conditioning their Cinema houses and, therefore, as their existing licences expire on the 31st of March, 1969, they are extended for a further period or one month beyond the 31st of March, 1969 and again a note of warning was given that they were cautioned that even if they failed to initiate necessary action for air conditioning within the extended period, the Government may not extend the licences any further.
The last letter in this connection is the impugned letter which is sought to be declared ultra vires and it is dated the 29th of April, 1969 (Annexure "7"). In this letter it was stated that the Cinema owners had been cautioned to the effect that the sanction for renewal given by the Government was for only one month after the 31st of March, 1969 and it is definitely stated in this letter that if no concrete and definite step for air conditioning their Cinema buildings was taken during the aforesaid period of renewal, the Government would not extend the period of licences. It was also stated that the Sub-Divisional Officer had reported that no concrete and definite step for air conditioning had been taken. The District Magistrate in this letter definitely stated that the licences were not being renewed from the 1st of May, 1969.
4. The petitioners in their respective petitions have submitted that the Government had been compelling the petitioners since 1961 to air condition their Cinema premises and that apart from the practical impossibility of air conditioning the Cinema premises the order of the State Government was itself arbitrary and illegal interference with the rights of the licencees to engage themselves in the business of cinematograph films. It was also submitted that there are other Cinemas also in the town of Patna and within the Patna Municipal Corporation area, such as Anand and Krishna and other Cinemas at Bihar sharif. Dinapur and other parts of the Patna District and within the State of Bihar, such as, at Ranchi, Muzaffarpur, Bhagalpur, Katihar, Gaya etc. but no such condition has been imposed on those Cinema houses and, therefore, the direction issued by the Government is also bad because it is discriminatory in nature. It was also submitted that the Government have framed no rules regarding the Cinema houses in the State of Bihar to be air conditioned and as such the imposition of such a condition was illegal. In the different petitions data have also been given showing the estimated costs, expenses etc., which - have to be incurred if the premises are air conditioned and the Cinema proprietors cannot be in a position to run the Cinemas and incur such huge expenditure and it would mean that they will be practically rooted out of the business. It was also submitted that the prevailing social and economic ' condition is not such that the air conditioning may be treated as essential in public interest.
5. Counter-affidavits were filed on behalf of the State in these writ petitions and it was submitted therein that the order and the condition which had been imposed were not illegal, arbitrary and mala fide and that the Government have given sufficient time and opportunity to the Cinema owners concerned to air condition their Cinema houses, but still they have not taken any step. As regards the allegation of having made a discrimination it was submitted that the five Cinemas in question, that is, the Cinema houses of the petitioners of the present five petitions form a class by themselves as they are in the capital town and their Cinema rates are also high. As regards the other licencees within the Patna Municipal Corporation, such as Anand Talkies and Krishna Talkies as also licencees under Cinema Act, at Bihar Shariff and Dinapur within Patna district it was stated that they have not been asked to air conditioning their Cinema houses because they are located in less thickly populated areas and the number of cinegoers is comparatively small. It was also further stated that there are two air conditioned Cinema houses in Bihar, one at Jharia and another at Jamshedpur and further that two other persons whose names have been mentioned in paragraph 11 of the counter-affidavits have applied for licences to run air conditioned Cinema houses at Patna. It was also submitted that the present writ petitions are not maintainable in view of the fact that an application under Article 32 of the Constitution of India to the Supreme Court filed by Veena Theatre has been dismissed. I will deal with the merit of this objection subsequently when I deal with the different points which have been urged. It may be stated here that during the course of the hearing of these cases Mr. Katriar the Government Pleader appearing for the State brought this fact to our notice that the Government had constituted a committee to go into the question of feasibility or otherwise of the air conditioning of the Cinema houses and that the report was to be submitted. He also submitted that the Government on later consideration have decided that the final decision in the matter would be taken after the submission of the report. It was seriously contended on the other hand on behalf of the petitioners that there was no such Committee or if there was any such Committee, it had become defunct. In the circumstances, as prayed for by Mr. Katriar we allowed time so that he may be able to ascertain the exact position and then file a supplementary counter-affidavit, if so advised. The hearing of these cases has to be postponed for this and thereafter a supplementary counter-affidavit was filed and in this, vide paragraph 8 of the Supplementary counter-affidavit it was stated that the Government will take the final decision on receipt of the report of the Committee about which I have referred above. Further supplementary affidavits were filed on behalf of the petitioners contending therein that the Government had already taken a final decision and that the Committee had become defunct. In view of the submission that on later consideration the Government have not taken the final decision we thought it proper that if the parties agree a consent order may be passed. We also indicated the lines on which such a consent order could be passed which could be to the effect that as it appears from paragraph 8 of the supplementary affidavit filed by the Government it appears that a Committee has already been appointed and that the Government will take their final decision after the submission of the report and so pending the submission of the report the term of air conditioning will not be imposed as a condition precedent to the renewal of the licences and that the renewal will be extended if all other conditions were fulfilled. Mr. Katriar naturally wanted some time to get instructions on this point from the Government and in the ends of justice we thought it desirable that further time may be granted. Adjournments were granted, but it so happened that Mr. Katriar on seeking instructions was not in a position to agree to such a consent order and wanted that the matter should be decided by this Court on the materials available on the record and particularly in view of the recital made in paragraph 8 of the supplementary counter-affidavit which has really been his main contention in these cases.
6. Mr. Basudeya Prasad, learned counsel appearing for the petitioners raised four points which may be formulated as follows:
(i) Direction of the State Government to the District Magistrate not to renew the licences of the Cinema houses unless these are air conditioned as per order contained in Annexure "7" dated the 29th o£ April, 1969 is beyond the scope of Section 5 of the Bihar Cinemas (Regulation) Act, 1954 (Act XV of 1954) and that such a direction is illegal and ultra vires.
(ii) The impugned direction and order are also ultra vires of Section 9 of the Act because no such rule had been framed in in this respect under the Act.
(iii) Even if it be assumed that the impugned directions are permissible under the Act then such directions are ultra vires of Article 19 (1) (g) of the Constitution of India.
(iv) The impugned directions are also bad and ultra vires in view of the provisions of Article 14 of the Constitution of India as they are discriminatory in nature.
7. Mr. Katriar appearing for the State has raised some preliminary objections relating to the maintainability of these applications and, therefore, it would be better if I take up a discussion of those objection first before I take up a discussion of the submission relating to the merit of these applications and the challenge which has been made with regard to the impugned directions. The first objection which has been raised by Mr. Katriar in this respect is that these petitions had been admitted for a limited scope as would appear from the order passed at the time of the admission of these applications and, therefore, points which have been raised and which are beyond the scope and the ambit of the aforesaid order cannot be allowed to be gone into at this stage. It may be stated in this connection that these writ applications were admitted on the 8th of May, 1969 and at that time it was ordered that the applications will be heard on only one question, namely, whether the requirement for air conditioning, in view or its financial implications, was such an onerous burden as to amount to an unreasonable restriction on the petitioners' fundamental right to carry on their business within the meaning of Article 19 (1) (g) of the Constitution, but it also appears that in these writ petitions, petitions seeking permission for amendment of grounds have been also filed and on the 5th of February, 1971 the Bench was pleased to allow the now grounds to be added and it Was also noted therein that the Government Pleader stated that he could not seriously object to the new grounds being taken. In view of this subsequent order of the Bench, there is no merit in this preliminary objection raised by Mr. Katriar.
8. The second objection which has been raised is to the effect that a writ petition in which also the imposition of the condition of air conditioning the Cinema house, viz., Veena Theatre had been filed and it was dismissed by the High Court and then an application under Article 32 of the Constitution of India had been filed and that was also dismissed by the Supreme Court and, therefore, the present petition ought to be dismissed. In the first place I may point out here that Veena Theatre had no doubt filed a writ petition which was numbered as Miscellaneous Judicial Case No. 678 of 1964 and a challenge therein was made about the imposition of the condition for air conditioning. This application was dismissed by the High Court on the 13th of July, 1966. Veena Theatre or the Proprietor of Veena Theatre is not a party in the present writ applications. It also appears from the judgment of the High Court in M. J. C. No. 678 of 1964 that the Division Bench of this Court which heard this application no doubt was of opinion that the imposition of the condition for making it air conditioned could not be said to be unreasonable restriction, but their Lordships also observed that if the petitioner had furnished some materials to show his present assets, the net income of the Theatre, the cost of fitting of the air conditioning unit and other particulars, the Court might be in a position to examine whether this burden was of such an onerous nature as to amount to unreasonable restriction and in the absence of such materials, the question of consideration of the infringement of fundamental rights under Article 19 (1) (g) of the Constitution does not arise. It is, therefore, clear that the materials which were necessary to show that the restriction was reasonable or not had not been furnished in that case. It is also no doubt clear from the records of the case as also asserted on behalf of the State that after the disposal of this application Veena Theatre filed an appeal before the Supreme Court and also filed a petition under Article 32 of the Constitution before the Supreme Court. In the case in which this petition under Article 32 of the Constitution was filed the Supreme Court was also pleased to order ad interim stay. A counter-affidavit had been filed by the State of Bihar and one of the main points which had been raised on behalf of the State of Bihar was that this petition under Article 32 was not maintainable in view of the fact that an appeal had also been filed which was pending. The order of the Supreme Court which is Annexure "C" to the counter-affidavit of the State of Bihar in C.W.J.C. No. 409 of 1969, was that their Lordships of the Supreme Court dismissed the writ application and also vacated the interim ex parte stay which had been granted by the Court. To me it appears that the application had been dismissed in limine and, therefore, it cannot be said that there had been adjudication on merit. In view of all these facts, stated above, I think this objection can also not be sustained regarding the maintainability of these present writ applications.
9. The third objection which has been taken by Mr. Katriar is to the effect that the present writ applications have become infructuous and, therefore, the Court will not grant an ineffective writ. I have stated in the beginning of my judgment as to what are the reliefs which have been sought for in all these writ applications and it is necessary to examine those reliefs in light of the objections which have been raised by Mr. Katriar. In my opinion, three reliefs have been sought for in these writ applications, viz., (i) the direction of the Government as contained in Annexure "4-D" be declared ultra vires, void and illegal, (ii) a writ of certiorari be issued to quash the order of respondent No. 2 as, contained in Annexure "7" and (iii) a writ in the nature of mandamus permanently restraining the respondents from enforcing the impugned direction and the order contained in Annexures "4-D" and "7". There is, of course, the omnibus relief also to the effect that such other order or orders as may be deemed fit and proper may be passed. I may now refer to the two Annexures with regard to which the reliefs, as stated above, have been sought for. I have already also referred to these Annexures in the earlier part of my judgment when giving the relevant facts relating to these writ applications. Annexure "4-D" is a letter elated the 13th of January, 1961 in which there was a direction that the Cinema houses should be air conditioned within two years' period, that is, till the 31st of December, 1962. The contention of Mr. Katriar is to the effect that as the period ending the 31st of December, 1962 has long expired and thereafter there have been several renewals, so in this view of the matter, Annexure "4-D" would be deemed to be not in existence now and so the relief sought for in respect of Annexure "4-D" is infructuous on the very face of it. Relief has also been sought for in respect of Annexure "7" and I have already referred to this Annexure also while stating the facts of the cases. This Annexure is dated the 29th of April, 1969. In this letter the petitioners were again informed that sanction for renewal of the licences given by the Government was only for one month after the 31st of March, 1969 and that if no concrete and definite step for air conditioning of the Cinema building was taken then the Government would not extend the period of the licences. In the last paragraph of this Annexure it was clearly stated that the licences having been not renewed from the 1st of May, 1969 so they should stop exhibiting the cinemas from that date. The present writ applications were filed after the issue of Annexure "7" and in these writ petitions the impugned order of the respondents contained is in Annexure, "7". A prayer for the stay of the operation of the impugned order at the time of the admission was also made, but the prayer for stay was not granted. It appears as has been also submitted by Mr. Katriar, Government Pleader that no doubt the Government had passed a definite order that the licences will not be renewed and the petitioners were to stop the exhibition of the cinemas and the exhibition of the cinemas had also been stopped but the respondents suo motu renewed the licences and permitted them to exhibit the cinemas and that from time to time this renewal has been granted and Annexure "H" to the supplementary counter-affidavit filed on behalf of the Government would show that the licences have been renewed upto the 30th of April, 1972. It was, therefore, in this context submitted that the relief sought for in respect of Annexure "7" has also become infructuous because the order that the licences will not be renewed after the 1st of May, 1969 was also not in force or in existence. It has been submitted, on the other hand, by Mr. Basudeva Prasad, learned counsel appearing for the petitioners that these writ applications have not become infructuous Because the reliefs which have been sought for are such that it cannot be said that these reliefs have become infructuous. It has also been submitted that the direction and the persistence of the Government are still there to impose the condition of air conditioning of Cinema houses and so perpetual threat and danger are there. It has also been submitted that the dates mentioned in Annexures "4-D" and "7" are really of no relevance. I have already referred to the reliefs which have been sought for and it is clear from the reliefs that the attack has been against the direction contained in Annexure "4-D". Annexure "4-D" as well as Annexure "7" are divisible into two parts. The first part contains the direction that the Cinema houses be air conditioned and the second part is the date with regard to the renewal which has been given in these Annexures. The reliefs are, therefore, directly against the direction and having regard to all the facts and the circumstances, it is clear in my opinion, that the petitioners in all these writ applications have really been seeking the relief against the direction of the respondents imposing therein a condition of air conditioning the Cinema houses as a pre-requisite condition for the renewal of their licences. Now apart from this the third relief seeking a writ of mandamus for permanently restraining is also quite a separate and independent relief and even if the reliefs with regard to Annexures "4-D" and "7" be regarded as mfructuous, the third relief, mentioned above, cannot be regarded as infructuous. Mr. Katriar, the learned Government Pleader has in this connection relied on a decision of the Supreme Court in the case of K.N. Gumswamy v. State of Mysore, AIR 1954 SC 592 where their Lordships were pleased to hold at page 596 in that case that a writ would be ineffective and as it was not their practice to issue meaningless writs the appellant should be content with an enunciation of the law. The facts of that case are quite distinguishable from the facts of the present cases and it related to auction of the liquor shop under the Excise Act and in view of the circumstances of that case it was held that the writ if it could be issued would be an ineffective writ. In my opinion, in these present cases, as already held above by me, it cannot be said that the present writ applications have become infructuous and secondly even if they had become infructuous, these are fit and proper cases where an enunciation of the law may be done as was done by the Supreme Court in the aforesaid decision.
10. The last objection which has been raised by Mr. Katriar, the learned Government Pleader is that the present writ applications are also infructuous in view of paragraphs 7 and 8 of the supplementary counter-affidavit, that is, the fact on a later consideration the Government are reconsidering the matter and have not taken a final decision. I will deal with this objection at its proper place when I discuss as to what would be the proper relief or order which should be passed in these writ applications.
11. I will now take up the points which have been raised by Mr. Basudeva Prasad, learned counsel appearing for the petitioners and I will take up a discussion of points (i) and (ii) which are inter-connected and can be discussed together. This position is not disputed that the relevant Act which will govern the granting of the licences for the Cinema houses is the Act called the Bihar Cinemas (Regulation) Act, 1954 (Act XV of 1954). It may also be mentioned here that prior to this Act there was an Act of 1952, but in these present cases we are concerned with the Act of 1954. This Act hereafter for the purpose of convenience would be referred to as "the Act". It is necessary here to give a broad outline and scheme of the Act The preamble of the Act shows that it is an Act to make provisions for regulating exhibitions by means of cinematographs in the State of Bihar. Section 2 deals with the definitions. Section 3 lays down that no person shall give an exhibition by means of a cinematograph elsewhere than in a place licensed under the Act or otherwise than in compliance with any conditions and restrictions imposed by such licence. Section 4 lays down who would be the licensing authority as contemplated by the Act. The authority who would have the power to grant licences under this Act is the District Magistrate and the Government has also the power by notification in the Official Gazette to constitute for the whole or any part of the State, such other authority as it may specify in the notification to be the licensing authority. Section 5 deals with the restriction of powers of licensing authority. It will be better if I quote here the entire provisions as contained in Section 5 and it runs thus--
"5. Restrictions of powers of licensing authority:-- (1) The licensing authority shall not grant a licence under this Act, unless it is satisfied that--
(a) The rules made under this Act have been substantially complied with; and
(b) adequate precautions have been taken in the place, in respect of which the licence is to be given, to provide for the safety of persons attending exhibition therein.
(2) Subject to the foregoing provisions of this section and to the control of the State Government, the licensing authority may grant licences under this Act to such persons as that authority thinks fit and on such terms and conditions and subject to such restrictions as jt may determine.
(3) Any person aggrieved by the decision of a licensing authority refusing to grant a licence under this Act may within such time as may be prescribed, appeal to the State Government or to such officer as State Government may specify in this behalf, and the State Government or the officer, as the case may be, may make such order in the case as it or he thinks fit.
(4) The State Government may, from time to time, issue, directions to licensees generally or to any licensee in particular for the purpose of regulating the exhibition of any film or class of films, so that scientific films, films intended for educational purposes, films dealing with news and current events, documentary films or indigenous films secure an adequate opportunity of being exhibited, and where any such directions have been issued, those directions shall be deemed to be additional conditions and restrictions subject to which the licence has been granted."
We would be concerned here in these present cases only with Section 5 (1) (a) and (b), Section 5 (2) and Section 5 (3). We are not concerned with Section 5 (4). Section 6 confers power on the State Government or the District Magistrate to suspend exhibition of films in certain cases. Section 7 is a penal section which imposes penalty. Section 8 confers power to revoke or suspend licence. Section 9 confers power on the State Government to make rules by notification in the Official Gazette. Now before I take up a discussion of the provisions of Section 5 of the Act which are really very important, I may dispose of two other points. One of these points is that this is not disputed that no rule has been framed under the Act and that the rules which are in force are the rules which had been made by the Government under the Cinematograph Act, 1918 as amended by the Cinematograph (Amendment) Act, 1919. This position was also not disputed that under Section 27 of the Bihar General Clauses Act if a now Act is passed and no rules have been framed thereunder then the rules which had been framed under the prior Act would be deemed to be the rules continuing under the new Act. This position was also not disputed and, therefore, although no rules had been framed under the Act of 1954, but there arc rules of 1918 with amendments and these rules would be deemed to be the rules under the Act of 1954. This may also be mentioned here that admittedly the rules do not contain any condition for the air conditioning of the Cinema houses. It may be that as the rules were framed in 191.8 and thereafter so the necessity and the eventuality of air conditioning which has come with the progress of civilization could not have been envisaged in the rules at that time. There is another point which may also be dealt here and it is this that from the recital of one of the annexures in these writ petitions it appears that the renewal had been granted subject to the condition that the Cinema houses would be air conditioned. I may refer here in this connection Annexure "4-C" in C.W.J.C. No. 410 of 1969. In this it was stated--
". . .. . . pleased to decide that the condition imposed in the licenses in respect of Messrs. Ashoka Cinema, Veena Theatre and Rupak Theatre should not be withdrawn, as the original licences were granted to them on the condition that they should ultimately air-condition their respective cinema houses on the availability of air-conditioning plants."
C.W.J.C. No. 413 of 1969 is in respect of Ashok Cinema. C.W.J.C. No. 412 of 1969 is in respect of Rupak Theatre and as far as Veena Theatre is concerned, as I have already stated above Veena Theatre is not a party in any of these writ petitions which have been heard together. A point can be taken although it has not been argued that if the proprietors o£ the Ashok Cinema and Rupak Cinema had agreed and consented to the renewal of their licences subject to this condition that they would air-condition their houses, then in such view of the matter, they cannot be allowed to agitate this point as this would constitute a kind of a contractual relationship created by the terms to which they had agreed and subjected themselves. The best documents in this connection would be the original licences themselves which could have fully demonstrated if there was any such condition in those original licences. No such original licence has been filed by either side. It was contended on behalf of the petitioners that the original licences were with the respondents, as they had filed them at the time when they sought for renewal of the licences and the respondents could have filed the same. It was urged by the learned Government Pleader Mr. Katriar that those licences were not traceable and then again that copies of those licences must have been with the petitioners. In my opinion, the copies would not have been sufficient to prove one way or the other. So whatever may be the actual fact in this respect the original, licences have not been filed. We have, therefore, to examine the recitals in the petitions and the counter-affidavits to see how far it can be said that there was such a condition in the licences. Now in C.W.J.C. No. 412 of 1969, that is, of Rupak, I may refer to paragraph 3 of the petition. In this paragraph it was clearly stated that the licences, which were renewed from year to year in accordance with rules never carried the term and condition to air-condition the Cinema premises. I may then refer to paragraph 3 of the counter-affidavit filed on behalf of the respondents where while replying to paragraph 3 of the petition of the petitioners it was stated that referring to paragraph 3 of the petition, it is stated that the licence of the petitioner was last renewed for the year 1968-69 on fulfilment of all other requirements except air-conditioning of the Cinema houses, although the licence which was renewed from year to year, did not have the term and conditions to air-condition the Cinema premises, embodies on the licence itself. Similarly there were similar recitals in paragraph 3 of the petition filed by Ashok Cinema, viz., C.W.J.C. No. 413 of 1969 and also in paragraph 3 of the counter-affidavit filed by the respondents in that case. It would, therefore, be clear that in the counter-affidavit also there was no assertion, rather admission that when the licences were renewed these did not contain the condition that the licences of the Cinema houses were renewed subject to the condition of air-conditioning the Cinema houses.
12. It may also be mentioned here that this position was not disputed that the directions which have been issued through the District Magistrate, viz., the licensing authority clearly show that the District Magistrate was issuing those directions under the orders of the State Government. I will now revert to a discussion of the relevant provisions of the Act, viz., Section 5 which I have already quoted in extenso at pages 21 and 22 of this judgment. Section 5 of the Act lays down that the licensing authority, viz., the District Magistrate in these cases shall not grant a licence under this Act, unless he is satisfied that the two conditions as laid down in this section have been fulfilled and complied. It may be mentioned here that Section 5 is in negative form and taking all the relevant sections and the scheme of the Act, there can be no doubt that the section is mandatory. It imposes two kinds of restrictions on the licensing authority before it can grant a licence. One of these conditions as contained in clause (a) is that he must be satisfied that the rules made under the Act have been substantially complied with. It has been submitted on behalf of the petitioners that as the rules themselves did not contain any terra or condition relating to air conditioning, so tbe District Magistrate could not impose any such condition. The second condition in that regard to which the licensing authority has to be satisfied is whether adequate precautions have been taken in the place, in respect of which the licence is to be given, to provide for the safety of persons attending exhibition therein. Now as far as the second condition is concerned, it cannot be also regarded as relevant because it cannot be said that air conditioning of the Cinema houses is in anyway connected with the safety of person attending the exhibition of cinema. Sub-section (2) of Section 5 is very important because it lays down that the licensing authority will grant a licence subject to the foregoing provisions, that is to say, on satisfaction of the compliance of the conditions contained in clauses (a) and (b) of Section 5 (1) of the Act and further Sub-section (2) of Section 5 also lays down that the power of the (sic) licensing authority is also subject to the control of the State Government. Under Sub-section (2) of Section 5 of the Act the licensing authority may subject to such control grant licence to such persons as that authority thinks fit and on such terms and conditions subject to such restrictions as it may determine. Sub-section (3) of Section 5 confers right of appeal and it lays down that any person aggrieved by the decision of the licensing authority refusing to grant a licence under this Act may appeal to the State Government within the prescribed period. This appeal may be heard by the State Government or any officer so specified by the State Government, who may make such order in the case as he may think fit. Sub-section (4) of Section 5 deals with directions relating to the exhibition of any film or class of films, but that also is not for the purpose of our discussion. The submissions which have been made by Mr. Basudeva Prasad appearing for the petitioners are that in the first place there could not be any imposition of air-conditioning because this has not been provided for in the rules, secondly, that the imposition of such air-conditioning is also beyond the scope of clauses (a) and (b) of Section 5 (1) of the Act and thirdly, that the Government also could not impose any such condition and issue such a general direction because the exercising of such a power would be illegal, inasmuch as, it would be defeating the provisions of Section 5 (1), clauses (a) and (b) and putting fetters on the licensing authority meaning thereby that the Government was supplanting itself in place of the licensing authority. I have already pointed above that Sub-section (2) of Section 5 lays down that the licensing authority would exercise the power subject to the control of the State Government. A very important question, therefore, arises for consideration as to what this word 'control' would mean. To me it appears that this 'control' is something more and above the appeal which has been provided under Sub-section (3) of Section 5. An appeal has been provided under Sub-section (3) of Section 5 when the licensing authority refuses to grant a licence, that is to say, when there is rejection of the prayer for granting a licence. There may be a case where a licence has been granted to a person, who is not a desirable or for some good and legitimate reason tbe licence ought not to have been granted to him, then in that case there can be no appeal under Sub-section (3) of Section 5 of the Act. A person so aggrieved is not left without a remedy and he can approach the "State Government for such an order and if the State Government enforces and passes any order then naturally it will be a case which will come within the meaning of the words "control of the State". To me it, therefore, appears that the Legislature in its wisdom has incorporated the words "subject to the control of tbe State" so that the State may have a supervisory or revisionary power in this respect. There can be also instances where without usurping the power of the licensing authority the State Government may think it necessary to issue general instructions or directions and a question arises whether it would be permissible under Sub-section (2) of Section 5 of the Act. I am of opinion that the State Government while exercising its power under Sub-section (2) of Section 5 cannot do it in such a manner that it usurps the power of tbe licensing authority and supplants itself, but of course it would be competent to the State Government in fit and proper cases to issue directions and these directions would have to be followed by the licensing authority subject of course to this that such directions do not in any way infringe or violate any of the provisions of the Constitution or any other law. It may be mentioned here that references have been made to and reliance has been placed in this connection on two decisions of the Supreme Court and three decisions of the Division Benches of this Court. The first decision on which reliance has been placed by Mr. Basudeva Prasad is in the case of State of Punjab v. Hari Kishan Sharma, AIR 1966 SC 1081. This was a case in respect of Punjab Cinemas Regulation Act and it may be pointed here that Section 5 in that Act is the same as the provisions of Section 5 of the present Bihar Act. In that case the State Government had issued a direction that all the applications for licences may be sent to the State Government for disposal and it was argued on behalf of the Government in that case that the power of control as conferred by Sub-section (2) of Section 5 was such that it could take within its sweep the direction issuing that all applications should be forwarded to it for disposal. Their Lordships of the Supreme Court were pleased to hold that it may he conceded that the control of the Government subject to which the licensing authority can function is very wide, but however wide this control may be it cannot justify the State Government to completely oust the jurisdiction of the licensing authority and itself usurp all the functions. I may refer here to the observations of their Lordships in paragraph 14 at page 1084 which run as follows:--
"The control of Government contemplated by Section 5 (2) may justify the issue of general instructions or directions which may be legitimate for the purpose of the Act and these instructions and directions may necessarily guide the licensing authority in dealing with applications for licences. The said control may, therefore, take the form of the issuance of general directions and instructions which are legitimate and reasonable for the purpose of the Act. The said control may also involve the exercise of revisional power after an Order has been passed by the licensing authority. It is true that Section 5 (2), in terms, does not refer to the revisional power of the Government; but having regard to the scheme of the section, it may not be unreasonable to hold that if the Government is satisfied that in a given case, licence has been granted unreasonably, or contrary to the provisions of Section 5 (1), or contrary to the general instructions legitimately issued by it, it may suo motu exercise its power to correct the Said order by exercising its power of control. In other words, in the context in which the control of the Government has been provided for by Section 5 (2), it would be permissible to hold that the said control can be exercised generally before applications for licences are granted, or particularly by correcting individual orders if they are found to be erroneous, but in any case, Government has to function either as an appellate authority or as a revisional authority, for that is the result of Section 5 (2) and (3). Government cannot assume for itself the powers of the licensing authority which have been specifically provided for by Section 5 (1) and (2) of the Act. To hold that the control of the Government contemplated by Section 5 (2) would justify their taking away the entire jurisdiction and authority from the licensing authority, is to permit the Government by means of its executive power to change the statutory provision in a substantial manner, and that position clearly is not sustainable."
It, therefore, does appear according to this decision of the Supreme Court also that the State Government has got revisionary powers and can issue general directions also, but they should not be in such a manner as if it would be usurping the powers of the licensing authority and supplanting itself in place of the licensing authority.
The other decision on which reliance has been placed is the case of State of Gujarat v. Krishna Cinema, AIR 1971 SC 1650. This relates to Gujarat Cinemas Act and Section 5 (2) of the Gujarat Cinemas Act is also similar to Section 5 (2) of our Bihar Act. It may also be mentioned here that in the Gujarat Act there was a provision for issue of no objection certificate from licensing authority and there also are provisions for inviting an objection and there are exhaustive rules in this respect. It appears that there was really a very good provision in that Act for inviting objections. In that case the respondents desired to construct "an annexe" for exhibiting foreign films with independent screen and auditorium. The respondents applied to the District Magistrate, who was the Licensing Authority for a 'no objection certificate' to the user of the "annexe" to be constructed on the site for exhibiting cinematograph films. They also submitted to the Executive Engineer plans of the proposed building of "annexe" and they also applied to the local Municipality for leave to construct a building to be used for cinematograph theatre. The Municipality sanctioned construction of the building. The Executive Engineer also signified his assent by letter addressed to the Additional District Magistrate for the grant of a "no objection certificate". As required by the rules the District Magistrate in that case notified the application and invited objections to the proposal. The District Magistrate then forwarded his report to the Government of Gujarat and that according to the rules the respondents should have commenced construction of the "annexe" only after obtaining the "no objection certificate' under the Act, but since the building was constructed with the sanction of the Municipality and the building was in conformity with the rules, he recommended that the "no objection certificate' be granted. The Government of Gujarat intimated by a letter written by the Additional District Magistrate, Rajkot that the application filed by the respondents could not be granted. An appeal filed against the order communicated through the Additional District Magistrate to the State Government was rejected and the respondents were asked not to make any further representations in that behalf. It was contended in that case as would appear from paragraph 11 of the judgment at page 1653 that the State Government under Rule 5 (2) has absolute discretion to grant permission for the issue of a "no objection certificate" to the applicant. Their Lordships were pleased to observe thus--
"Under the Act the District Magistrate and not the State Government is the Licensing Authority. Granting that the State Government may validly control the exercise of power by the Licensing Authority, -- on that question we express no opinion --- the State Government cannot relying upon the Rules assume to itself the jurisdiction of the Licensing Authority to issue the licence. Power to control the Licensing Authority under Section 5 is not the power to supplant the Licensing Authority. "Again the power to grant a licence under the Act is quasi-judicial, and by the use of the expression "absolute discretion" it is not intended to invest the Licensing Authority with arbitrary power so as to destroy the limitations to which it is subject by its inherent nature. The Act does not purport to confer arbitrary authority upon the Licensing Authority or the State Government, and by the use in the rules of the expression "absolute discretion" the legislative intent disclosed by the Act cannot be superseded."
It will be clear, therefore, that as laid, down by the Supreme Court in these cases also the State Government can no doubt issue directions, but the Licensing Authority has got a quasi-judicial function and it has got to exercise its own discretion as contemplated by clauses (a) and (b) of Section 5 (1) of the Act, but at the same time the State Government cannot supplant itself in place of the Licensing Authority.
13. Mr. Katriar, the learned Government Pleader, on the other hand, has relied on two decisions of the two Division Benches of this Court and 1 would refer to these decisions now. One of these is in the case of Birendra Kumar Sinha v. District Magistrate, Patna, Misc. Judicial Case No. 678 of 1964, which was decided on 13-7-1966 (Pat). It may be also mentioned here that this is the case which had been filed by Veena Theatre to which I have already made reference above. It may also be mentioned here that this decision is also reported in 1967 BLJR (N) 64, but as the full facts are not given in that report so I would be referring to the judgment itself which is in the original record of that case. This aforesaid case also related to the provisions of the Cinema Act and at that time the Act of 1952 was in force. Section 12 of 1952 Act contained provisions which are identical to the present provisions contained in S. 5 and 5 (2) of the present Act, In that case the direction was given to the petitioner of that case to give evidence about payment of entertainment tax and also to furnish information about the steps taken for getting the Cinema house air conditioned on or before the 31st of December, 1966. The petitioner challenged the imposition of these conditions as unauthorised and invalid. In that case it was not denied by the respondents that the aforesaid conditions and restrictions have not been specifically authorised either under the Act or under the Rules made under the Act. There also it was not contended that the condition about fixing up air conditioning arrangement in the Cinema Hall will come within the scope of clause (b) of Sub-section (1) of Section 5 of the Act as being necessary to provide for the safety of persons attending exhibition therein. The respondents in that case justified the imposition of these conditions and restrictions on the ground that under subsection (2) of Section 12 (corresponding to Sub-section (2) of Section 5 of the present Act) (the licensing authority?) may subject to the provisions of Sub-section (1) impose such terms and conditions as it may mink fit while renewing the licence and it was urged that the words. "Subject to the foregoing provisions of this Sub-Section", occurring in Sub-section (2) should be construed to mean that those conditions and restrictions should not be inconsistent with either the rules made under the Act or with any precautionary measure to be taken to provide for the safety of persons attending exhibitions therein. Their Lordships were pleased to hold as follows:--
"In my opinion, this contention of the Standing Counsel for the Government of Bihar must be accepted. It will obviously not be possible either in the Act or in the rules made thereunder to enumerate exhaustively the various conditions and restrictions which the licensing authority could validly impose while granting or renewing cinema licence. The essential conditions which every licensee must satisfy have been laid down in Sub-section (1) of Section 12. As regards the other conditions and restrictions, the Legislature thought that wide discretion should be given to the licensing authority subject of course to the paramount consideration that those conditions and restrictions should not in any way be inconsistent with the conditions laid down in Sub-section (1) of Section 12 of the Act. Here, as admittedly the conditions and restrictions are not in conflict with the restriction imposed by Sub-section (1) of Section 12 of the Act, it cannot be said that the order of the Magistrate imposing such conditions and restrictions is invalid."
There are some observations with regard to air conditioning also and I would revert back to those observations when I deal with the question whether there has been a reasonable restriction or not.
Reliance has also been placed by the learned Government Pleader appearing for the State on another Division Bench decision of this Court in the case of Arya Pratinidhi Sabha v. State of Bihar, Civil Writ Jur. Case No. 1120 of 1966, decided on 13-4-1967 (Pat). In that case petitioner No. 1 was a branch of the well-known. Arya Samaj organisation with its head office at Patna and according to the petitioner there was an Arya Samaj Mandir and an Upper Primary School which were adjacent to a Cinema building and respondent No. 5 applied for a permanent Cinema licence. It appears that in that case the Government of Bihar in 1954 had issued a direction to the licensing authorities to the effect that "the licensing authorities should ensure that no cinema house is permitted to be constructed in the heart of any residential area or near any educational institution or hospital." It was, therefore, submitted on behalf of the petitioner that such a direction issued by the State Government was a statutory direction issued by the Government in exercise of their powers of control provided in Sub-section (2) of Section 5 of the Bihar Act and thus Government were bound by the directions contained therein. It was submitted, on the other hand, by the respondents that the aforesaid direction had no statutory force and that it was merely an administrative order for the guidance of the subordinate officials of the Government and that it could not in any way fetter the discretion of the Government in appropriate cases to direct the grant of a Cinema licence even in contravention of the instructions contained therein. Their Lordships considered the scope of the provisions of Sub-section (2) of Section 5 of the Act. Narasimham, C. J., as he then was in paragraph 6 was pleased to observe as follows:----
"I am inclined to agree with Mr. Ghosh, that the power of control vested in the State Government by Sub-section (2) of Section 5 is very wide and in exercise of this power the State Government may either issue general instructions for the guidance of the licensing authorities while granting licences under the Act or issue specific directions in respect of a particular applicant as may be considered necessary. Those directions will have statutory force and the licensing authority, namely, the District Magistrate, is bound to obey the same. It is true that these directions should not contravene the provisions of the rules made under Section 9 of the Bihar Act and they should also conform to other requirements as regards safety of persons attending the cinema shows as required by clause (b) of Sub-section (1) of Section 5. But subject to these restrictions the power of control of the State Government is undoubtedly very wide and this Court cannot interfere in their exercise of the power of control unless it can be shown that it was exercised arbitrarily or capriciously or mala fide. But the power to issue directions in exercise of the statutory power of Control conferred by Section 5 (2) will necessarily include the power to modify or alter the directions from time to time as the occasion may arise."
Their Lordships, therefore, in this decision followed the view expressed in the earlier decision, referred above, viz. in M. J. C. No. 678 of 1966 (Pat).
13A. Mr. Basudeva Prasad has in this connection relied also on an unreported decision of a Division Bench of this Court in the case of Rajeshwar Prasad v. State of Bihar, Civil Writ Jur. Case No. 1269 of 1969 decided on 7-7-1970 (Pat). In that case there were some questions about the arrears and the salami and rent and the District Magistrate recommended the grant of a licence in the name of the petitioner provided he fulfilled the conditions of payment of dues of entertainment tax and of Salami and rent. It appears that the petitioner then addressed a letter to the Deputy Minister, Revenue Department, Government of Bihar, and then thereafter eventually the District Magistrate passed an order imposing four conditions to be fulfilled before the cinema licence was granted. Condition No. 2 which came for consideration of their Lordships in the aforesaid case related to the payment of Rs. 5,000/- as Salmi for the settlement and rent at the rate of Rs. 75/- per month as malguzari. Their Lordships then referring to the different provisions of the Act referred to the provisions of Section 5 and after referring and discussing those provisions were pleased to observe as follows:--
"Reading the provisions of law contained in Section 5 and on a reasonable interpretation of the various parts, it would be clear that the licensing authority is to satisfy itself as to the compliance of the rules made under the Act and taking of the adequate precaution to provide for the safety of persons attending exhibitions at the licensed premises. The licensing authority, ordinarily and generally, is the District Magistrate and he cannot abdicate his power or function to the State Government of granting the licence. General control of the State Government, undoubtedly, would be there, but that cannot mean that the State Government would be the licensing authority in place of the District Magistrate. While granting the licence, the District Magistrate is to be satisfied that the person asking for the licence is fit to be granted a licence, and it would generally mean that he is not an undesirable person or a criminal. But the phrase is not wide enough to cover any or every kind of fitness, as was argued on behalf of the State. ....."
Their Lordships then further on also held that the District Magistrate has no obligation to go into such questions and determine disputed questions of fact before granting the licence. To put it shortly, such matters are extraneous and not germane to the power of the District Magistrate to grant the licence. Here also in this case there was some extraneous consideration which had been taken into consideration which was not covered by clauses (a) and (b) or by the Rule and in view of the circumstances there and the observations, quoted above, the application was allowed.
14. In these present cases the position is that the District Magistrate, no doubt, has been asking the Cinema owners from as early as 1961 to air-condition the Cinema houses, they have not been doing so and, therefore, renewals have been allowed from time to time and on each time this condition was being imposed. It is clear that the imposition of the condition has no doubt been at the instance and direction of the Government to the licensing authority. It has been urged that the licensing authority has abdicated its own power and the State Government has practically usurped the powers of the licensing authority meaning thereby that the licensing authority as contemplated by the scheme of the Act has not been permitted to exercise its own discretion within the ambit and the scope of the Act. In these present cases, the licensing authority, that is, the District Magistrate could not himself impose such a condition because it will not be a condition covered either by clause (a) or (b) of Section 5 (1) of the Act. The State Government of course could impose such a condition, and this the State Government could in exercise of its power of control as contemplated by Sub-section (2) of Section 5 of the Act. The imposition of such a condition should not be inconsistent in any way with either clauses (a) or (b) of Section 5 of the Act. I think it was in this view of the matter that the District Magistrate has made it clear that under the order of the State Government he was imposing such a condition. This imposition was a kind of a general direction issued by the Government. The direction was such that it naturally could not be made applicable to all the Cinema houses and it has to be particularised to some of the Cinema houses. So the direction was of a general nature but with application to particular cases. In my opinion, this is not a case where it can be said that there was abdication of the power by the licensing authority or usurpation of the powers of the licensing authority by the State Government and the facts and the circumstances are distinguishable from the facts and the circumstances of the two decisions of the Supreme Court, referred to above. I respectfully agree with the views expressed in the two Division Bench cases of this Court, referred above, viz., M. J. C. No. 678 of 1964 (Pat) and C. W. J. C. No. 1120 of 1966 (Pat).
15. The next contention in this connection is that the impugned direction Or order is ultra vires of Section 9 of the Act, I would now refer to Section 9 which confers the power to make rules. Section 9 (1) lays down--
"The State Government may, by notification in Official Gazette, make rules for the purpose of carrying into effect the provisions of this Act."
Sub-section (2) of Section 9 of the Act lays down--
"In particular, and without prejudice to the generality of the foregoing power, such rules may provide for......"
Clauses (a) to (f) of Sub-section (2) of Section 9 of the Act specify the subject-matter in respect of which rules can be framed under the Act. It has been contended that as the condition of air-conditioning is not one of the conditions 'in the Rules and clauses (a) to (f) cannot include in its scope air-conditioning also, so the imposition of the condition of air-conditioning was ultra vires because when no such rule can be framed then there can be no imposition of such a condition. In my opinion, this contention does not seem to be correct because under Sub-section (1) of Section 9 of the Act the purpose of making the rules is to carry into effect the provisions of the Act. Sub-section (2) clearly lays down that the rules can be made in particular and without prejudice to the generality of the foregoing power. The State Government has got the powers to frame rules even, on subjects which are not covered by clauses (a) to (f) and a condition can be imposed by issue of general direction as has been done in these cases provided of course that such a direction is not contrary or inconsistent with the rules.
16. I will now take up the points which have been raised to the effect that such a direction is violative of the provisions of Articles 19 (1) (g) and 14 of the Constitution of India. Article 19 of the Constitution lays down that all citizens have the right in respect of rights which have been mentioned in clauses (a) to (g) of the Article. The right has been conferred under this Article on a citizen of India and there is no dispute on this point that the petitioners are citizens of India. We are concerned here with d. (g) of this Article which lays down that all citizens have the right to practise any profession, or to carry on any occupation, trade or business. This has to be read along with Sub-article (6) of Article 19 of the Constitution which lays down as follows:--
"(6) Nothing in Sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said Sub-clause, and, in particular, nothing in the said Sub-clause shall affect the operation of any existing law in so far as it relates to or prevent the State from making any law relating to,--
(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise."
The right conferred on a citizen to carry on trade or business is, therefore, not an absolute right and it is subject to reasonable restrictions. Reasonable restrictions which can be imposed are those which are in the interests of the general public and are reasonable restrictions on, exercise of the right conferred by the said sub-clause. Now in these present cases admittedly the petitioners are holders of licences and they are running Cinema houses and exhibiting films in these Cinema houses from a very long time and they have been therefore, carrying on this business and their licences have been renewed from time to time, but with the condition that they should air-condition their houses. The imposition of this condition has been challenged on the ground that apart from other grounds it is not feasible and it is impossible and grossly unfair. In these different writ petitions facts and figures relating to the data have been given to justify the contention that the imposition of such a condition is grossly unfair and of such a nature that it would practically mean their extinction from this business. I may for the purpose of illustration refer here to paragraphs 13 and onwards of the petition in C. W. J. C. No. 410 of 1969 and for the proper appreciation of the points which have been raised quote in extenso the facts and figures. The paragraphs may be thus quoted--
"13. That the following data will show that the requirement of the air-conditioning of the cinema premises of the petitioner in the existing State of circumstances would be not only unreasonable but grossly unfair:--
(a) The average net annual income of the petitioner (as can be gathered from the records of the Income-tax Department) would work out to be about Rs. 25,000/-(Rupees Twenty five thousands) only per year.
(b) According to the letter of Voltas Ltd. the cost of the plant will be Rupees 3,20,000/- (Rupees three lacs twenty thousands) only (Rs. 2,92,000/- plus Rupees 28,000/- as Sales Tax approximately). A true copy of the letter of Voltas Ltd. is annexed herewith marked and as Annexure 9.
(c) The electric energy consumed be 125 units per running hour and on calculation according to the Tariff of the Patna Electric Supply Co. Ltd., (for air-conditioning) the monthly electric consumption bill over running the air-conditioner would come to about Rs. 8,000/-(Rupees Eight Thousands) only i. e. Rupees 96,000/- per year. Rs. 70,000/- (Rupees Seventy Thousands) will be required for alterations and other Civil Works, in the building premises. Total investment will thus work out to be Rs. 3,90 lakhs. (Rupees Three lacs Ninety Thousands). The other maintenance cost such as salary of the staff, cost of Gas refilling and incidental and, miscellaneous charges like spare parts etc. would come to Rs. 45,000/- (Rupees Forty Five Thousands) only per year.
14. That from the above details it is manifestly clear that the cost for air-conditioning the premises would be Rupees S,90,000/- (Rupees Three lacs Ninety. Thousands) only (Rs. 3,20,000/-, Rupees 70,000/-) and the yearly maintenance cost would be Rs. 1,41,000/- (Rupees one lac Forty one thousands) Rs. 96,000/- + Rs. 45,000/-) only.
15. That the asset of the petitioner as per balance-sheet of the Income Tax 1967-68 is only Rs. 1,20,000/- (Rupees one lac Twenty thousands) only.
16. That it is now absolutely clear that the income of the petitioner is Rupees 25,000/- (Rupees Twenty five thousand) only per year approximately whereas the maintenance cost per year on air-conditioning would be Rs. 1,41,000/~. (Rupees One lac Forty one thousands) only.
17. That on enquiry by the Government from Mr. Kuriyan, the then, Chief Engineer, Electricity Department, Bihar about the possibility of air-conditioning the cinema premises Mr. Kuriyan submitted a report vide his letter No. 1229 dated 4-2-1958 showing the infeasibility of air-conditioning the petitioner's cinema i. e, Regent Theatre.
18. That besides the facts mentioned above it is also not technically possible to air-condition the existing cinema building of the petitioner owing to the lack of space and also because considerable additions and alterations will have to be made in the existing building entailing a considerable cost of several lakhs which the petitioner will be unable to meet. The result would be that the petitioner will have to close the cinema business."
17. Now in this connection I may refer here to the counter-affidavits filed on behalf of the State in these writ petitions. In all these writ petitions in the counter-affidavit it has been merely stated that the figures which have been mentioned in the petitions are not accepted as correct. I may particularly refer here to paragraph 9 of the counter-affidavit in C. W. j. C. No. 410 of 1969 where it has been stated that the figures mentioned in paragraphs 13, 14 and 16 are not accepted as correct. I may now refer here again to paragraph 17 of the petition in C. W. J. C. No. 410 of 1969 which has already been quoted above. In that paragraph it has been specifically stated that on enquiry by the Government from Mr. Kuriyan, the then, Chief Engineer, Electricity Department, Bihar about the possibility of air-conditioning the cinema premises Mr. Kuriyan submitted a report vide his letter No. 1229 dated the 4th of February, 1958 showing the infeasibility of air-conditioning the petitioner's cinema, that is, the Regent Theatre. Paragraph 9 of the counter-affidavit to which I have referred above clearly shows that there was an assertion in respect of paragraphs 13, 14 and 16 and not in respect of paragraph 17. It has, therefore, very rightly been urged that the State Government has not denied the statement as contained in paragraph 17 of the petition that Mr. Kuriyan, who was the then Chief Engineer on enquiry had also reported that it was not feasible. The denial in these writ petitions is in a very vague manner because simply it has been stated that the figures are not accepted as correct. No counter figures have been supplied and no statement has also been made as to in what respect and what figures were not correct. There can be no dispute on this point that the proceedings under Article 226 of the Constitution are in the nature of Civil Proceedings and the averments in the petitions which have not been traversed must be taken to be admitted. I may refer in this connection to a similar view which has been taken in this respect in the case of Nitya Ranjan Bohidar v. The State, AIR 1962 Orissa 78.
18. Now on the question whether the restriction can be regarded as reasonable restriction and permissible under sub-Article 6 of Article 19 of the Constitution, I may refer to a decision in the case of Saghir Ahmad v. State of U. P., AIR 1954 SC 728, where their Lordships in paragraph 21 of their judgment, were pleased to observe as follows:--
"Be that as it may although in our opinion the normal use of the word "restriction" seems to be in the sense of limitation' arid not 'extinction', we would on this occasion prefer not to express any final opinion on this matter."
And then further on in paragraph 22 their Lordships were pleased to observe--
"As has been held by this Court in the case of AIR 1954 SC 220, whether the restrictions are reasonable or not would depend to a large extent on the nature of the trade and conditions prevalent in it."
In another decision of the Supreme Court in the case of State of Madras v. V. G. Row, (1952) 3 SCR 597 = (AIR 1952 SC 196), where at p. 607, their Lordships were pleased to observe as follows:--
"It is important in this context to hear 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 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."
It is also clear as has been decided in several decisions of the Supreme Court, such as, in the case of AIR 1954 SC 728, that there is undoubtedly a presumption in favour of the constitutionality of a legislation. But when the enactment on the face of it is found to violate a fundamental right guaranteed under Article 19 (1) (g) of the Constitution, it must be held to be invalid unless those who support the legislation can bring it within the purview of the exception laid down in clause (6) of the article. In the decision in the case of Vrajlal Manilal and Co. v. State of Madhya Pradesh, AIR 1970 SC 129, similar view was held that the burden is on those who seek that protection and not on the citizen to show that the restrictive enactment is invalid. I may also refer to another decision of the Supreme Court in the case of Khyerbari Tea Co. Ltd. v. State of Assam, AIR 1964 SC 925, where also the same view has been held. In these cases also the onus was on the State, that is, the respondents to prove by bringing materials on record to show that the restriction was reasonable and was not impossible and would not mean extinction of the business as pleaded by the petitioners. Mr. Katriar, learned Government Pleader in this connection also contended that when the order is in the interests of general public, then it cannot be enquired into by the Court and relied in this respect on a decision in the case of Rasbihari Panda v. State of Orissa, AIR 1969 SC 1081, where in paragraph 16 at page 1087, their Lordships observed that Section 10 leaves the method of sale or disposal of Kendu leaves to the Government as they think fit and that the action of the Government if conceived and executed in the interest of the general public if is not open to judicial scrutiny. In my opinion, the facts were distinguishable from the present facts because it related to the sale of Kendu leaves and the observations, therefore, cannot apply on all fours to the present writ petitions.
19. Now with regard to the infringement of Article 14, that is to say, whether the imposition of this condition is discriminatory, it has been urged as I have already pointed above that according to the petitioners there has been a discrimination inasmuch as, that such a condition has not been imposed on other Cinema houses. It has been urged on behalf of the State that there has been reasonable classification because these Cinema houses being situated in the mertopolis of Patna cannot be treated on the same footing as other Cinema houses which are outside the metropolis and in less thickly populated area. It was also submitted that these Cinema houses have got high rate of tickets. I may also refer here again to the observations of their Lordships of the Division Bench of this Court in M. J. C. No. 678 of 1964 (Pat), where their Lordships were pleased to observe as follows:--
"As regards the condition about taking steps for air-conditioning the entire hall also, on the materials available before me, I cannot say that this is an unreasonable restriction. Patna is the premier city of the State of Bihar and the requirement about air-conditioning of cinema halls in that city cannot prima facie be held to be unreasonable. Doubtless if the petitioner had furnished some materials to show his present assets, the net income of the Theatre, the cost of fitting of the air-conditioning unit and other particulars, the Court might be in a position to examine whether this burden is of such an onerous nature as to amount to unreasonable restriction."
Article 14 of the Constitution no doubt forbids class legislation but it does not forbid reasonable classification and I may in this connection refer here to the principles which have been laid down in the case of Ram Krishna Dalmia v. S. R. Tendolkar, AIR 1958 SC 538. I may also refer here to a decision of the Supreme Court in the case of Moti Das v. S. P. Sahi, AIR 1959 SC 942, where their Lordships were pleased to hold that it is now well settled that while Article 14 forbids class legislation, it docs not forbid reasonable classification for the purposes of legislation, and in order to pass the test of permissible classification, two conditions must be fulfilled, namely (1) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (2) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases such as, geographical or according to objects or occupations and the like. This will show that geographical basis can be taken into consideration as in these cases the locality where a particular cinema is situated.
20. The facts which I have stated above would, therefore, clearly show that the question whether there has been a reasonable restriction or not would depend on the facts and circumstances of each individual cases which have to be decided on the merits. Here in these cases the materials which have been supplied prima facie would show that it would be unreasonable in the sense that it may mean the extinction of the business, if they cannot comply with this condition. The denial has been in a vague manner, but at the same time we have also to take into consideration the supplementary counter-affidavit which has been filed on behalf of the State and to which reference has also been made. Now in the supplementary counter-affidavit, vide paragraph 4 and onwards it has been stated that the District Magistrate, Patna by his letter No. 1759 dated the 12th of May, 1969, informed all the six Cinema houses that it has been decided to set up a Committee to examine feasibility of the air-conditioning the existing halls as also its financial implications. The Government of Bihar by its letter No. 1706 dated the 28th of July, 1969, requested the Branch Secretary Eastern India Motion Picture Association, Patna to name one of the representatives of the Cinema houses in question who will be placed in the proposed Committee. It has been further stated that the association replied and informed that Shri D. Pramanick, Sccretray of the said Association will represent the Committee on behalf of the Cinema trade and Shri B. K. Sinha Veena Threatre, Patna will assist him on behalf of the Cinema houses at Patna. The aforesaid Committee was constituted of the members as follows:--
1. Secretary to Government Finance Department-Chairman.
2. Chief Engineer, Electricity Board-Member.
3. Shri D. Pramanick, Secretary, E. I. M. P. A.-Member (Shri B. K. Sinha, Veena Theatre, Patna, to assist Shri D. Pramanick).
In paragraph 7 of the supplementary counter-affidavit it has been stated that the Committee has concluded its labours and the Government is expecting report at an early date. In paragraph 8 it was stated that a final decision will be taken on receipt of the said report of the Committee and, therefore, the licences of all the Cinema houses of Patna have been extended upto the 30th of April, 1972. It also appears from paragraph 9 that the Government by a letter No. 350 P. G. dated the 13th of February, 1970 enquired from the Managing Director, State Financial Corporation, Patna and the Agent, State Bank of India, Patna as to whether loan would be advanced for air-conditioning the Cinema houses at Patna. The copy of the letter and the replies have also been annexed to the supplementary counter-affidavit. The fact that the Government has written letters to them also shows that the Government on reconsideration of the whole situation has not yet given a final decision and the Government very rightly indeed has also been exploring the means if there is the possibility of affording funds financially in the matter so that the petitioners may be in a position to air-condition the Cinema houses. I do not want to express any final opinion in this respect, but I think if the Government really gives reasonable terms such as loans on easy instalments then the petitioners should not have any justifiable grievance.
21. Supplementary affidavits in reply were filed on behalf of the petitioners and it was stated that the Committee reading the question of air-conditioning the Cinema houses at Patna has become incomplete since about the end of 1970 due to non-filling up of the vacancy caused by the departure of Shri B. N. Ojha, the then Chief Engineer of the Bihar State Electricity Board to Delhi on assignment "under the Central Govt. Further it has also been stated that the Committee which was constituted in July, 1969 was required to report about the question o£ air-conditioning of Cinema Houses of Patna and other allied matters within three months and that the period was further extended by another three months only and after that it became defunct and that the Committee has not submitted any report and the subsequent action of the Government in regard to the question of air-conditioning of the Cinema houses would show that the Committee became defunct. From the supplementary counter-affidavit it also does appear that the Government had constituted a Committee, but according to the petitioners this Committee has become defunct. The position, therefore, is as submitted by the learned Government Pleader that the Government on reconsideration of the matter and on second thought has not taken a final decision whether this condition of air-conditioning the Cinema houses should be a condition precedent to the renewal of the licences. This means that no permanent restraint on the State Government is necessary because it has not taken any final decision. I think that the attitude of the State Government has been very reasonable indeed. All complicated questions connected with facts and figures, feasibility, practicability on financial position, recurring expenses etc. which are so many which cannot be enumerated have to be considered and I think that in such circumstances, the proper order in the cases should be that I should not express any final opinion one way or the other whether this restriction which has been imposed is reasonable or not. This question be left open but with this limitation that the Government will take a final decision in the matter either on submission of the report of the Committee which has been appointed and fully going into the report and the pro and cons of the matter and if the Committee has not been able to function for one reason or the other on the constitution of a suitable Committee to go into the question and then to take final decision in the matter and that pending such final decision the licences of the petitioners will be renewed provided they comply with all the requirements and conditions other than the air-conditioning of the Cinema premises.
22. In the result, the applications are allowed on the lines indicated above, but since this stand has been taken by the State although at a very late stage of the cases and in view of the circumstances of! the case, I would make no order for costs.
P.K. Banerji, J.
23. I agree.