1. The petitioners are exhibitors of touring cinemas. They had been granted licences for running touring cinemas in different places. They had applied for re-grant of such licences for continuing to run the touring cinemas in those respective places. The licensing authority declined to re-grant such licence to the petitioner in W. P. 4219 of 1974. The applications of other petitioners for re-grant of their respective licences, are pending before the Licensing Authority.
2. In these petitions under Article 226 of the Constitution, the petitioners have prayed for striking down Rules 11 and 16 of the Karnataka Cinemas (Regulation) (First Amendment) Rules, 1974, (hereinafter referred to as the Amendment Rules) as unconstitutional. The petitioner in W. P. No. 4219 of 1974 has also prayed for quashing the order of the Licensing Authority declining to re-grant the licence to him. The petitioners have also Brayed for issue of mandamus directingthe Licensing Authorities to consider and decide their applications for re-grant of licences, without applying Rule 16 of the Amendment Rules.
3. Before dealing with the rival contentions of learned counsel in these petitions, it is useful to set out the relevant provisions of the Karnataka Cinemas (Regulation) Act, 1964, (hereinafter referred to as the Act) and the Rules made thereunder.
4. In different areas of the new State of Mysore (Karnataka) there were different enactments regulating cinemas. By enacting the Act, the Legislature of the new State of Mysore (Karnataka) brought about a uniform law throughout the State, regulating cinemas. The Act received the assent of the President on 10-4-1964. However, it was brought into force only on 15-3-1971.
5. The main object of the Act has been stated in its preamble as regulating exhibitions by means of cinematographs and licensing of places in which cinematograph films are exhibited.
6. Sub-section (4) of Section 2 of the Act defines 'place' as including a house, building, tent, enclosure and any description of transport, whether by water, land or air.
7. Section 4 provides 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 licences.
8. Section 5 provides that a person intending to give exhibition of cinematograph films in a place shall make an application to the licensing authority furnishing such particulars as may be prescribed.
9. Section 6 sets out the matters to be considered by the licensing authority in deciding to grant or refuse a licence. Such matters include-
(a) the interest of the public generally.
(b) the suitability pf the place where the cinematograph exhibitions are proposed to be given; and
(c) the adequacy of existing places for the exhibition of cinematograph films in the locality.
10. Section 7 provides that the licensing authority may, after consideration of the matters set forth in Section 6, and subject to such rules as may be prescribed by order, limit the number of places in any area in respect of which licences under this Act may be granted.
11. Section 8 provides that the licensing authority shall not grant a licence unless it is satisfied, inter alia, that-
(a) the rules under the Act have been substantially complied with;
(b) adequate precautions have been taken to provide for safety, convenience and comfort of the persons attending exhibitions therein; and
(c) the limit regarding the number of places for the area, determined under Section 7, is not exceeded.
12. Section 11 provides, inter alia, that any person who intends to use any place for exhibiting cinematograph films or to use any site for constructing or reconstructing a building thereon for exhibiting cinematograph films, shall make an application in writing to the licensing authority for permission therefor together with such particulars as may be prescribed.
13. Sub-section (1) of Section 19 provides that the State Government may, by notification, make rules to carry out the purposes of the Act. Sub-section (2) of that section sets out, without prejudice to the generality of the power under subsection (1), particular matters which such rules may provide for.
14. Clause (c) of Section 19 (2) reads:
(c) the limitation of the period for which licences in respect of any place may be granted for touring cinemas, and prescribing the distance from a permanent cinema beyond which licences in respect of any place for touring cinemas may be granted.
15. Clause (d) of Section 19 (2) empowers the State Government to make rules for regulation of cinematograph exhibitions for securing public safety.
16. In exercise of the powers conferred by Section 19 of the Act. the State Government framed rules called 'The Karnataka Cinemas (Regulation) Rules, 19'71', (hereinafter referred to as the Rules) which came into force on 15-3-1971 (on which date the Act also came into force).
17. Chapters IV to X of the Rules deal with permanent cinemas and Chapter XI, with touring cinemas,
18. Rule 90 provides that a person who intends to construct a touring cinema shall make an application to the licensing authority for approval of the building to be constructed on the approved site giving particulars specified in Rule 30.
19. Rule 92 requires a licencee to provide sanitary conveniences as may be prescribed by the licensing authority according to the scales laid down in Rule 54 (which is also applicable to permanent cinemas) and to cause the same to be maintained in good order and sanitary condition.
20. Rule 93 provides that a licence shall not be granted if the building is constructed in whole or in part of a ma-terial which, in the opinion of the licensing authority, is so inflammable as to be a source of danger to public or any nearby building.
21. Rule 94 provides that every building constructed of inflammable materials, shall consist of apertures of sufficient width which may be closed by mats, screen, bamboos or similar material which may be easily removed.
22. Rule 98 was amended by Rule 11 of the Amendment Rules by addition of the following sub-rule:
'(2) No licence in respect of a site shall be granted or regranted continuously for a period exceeding one year unless one month has lapsed after the expiry of the said period of one year.'
23. Rule 99 provides that no building consisting of inflammable materials shall be licensed to exhibit shows in any place for a period exceeding one year and that no licence shall be granted to a touring cinema in such building for a period exceeding one year.
24. Rule 100 prescribes the licence fee to be paid for grant or re-grant of licence for a touring cinama.
25. Rule 104 provides that sufficient provision shall be made as may be specified by the licensing authority for preventing and extinguishing fire which may occur.
26. Rule 107, as originally framed, read as follows:
107. Restriction on the grant of licence.
No licence shall be granted to any touring cinema in any place where there is a permanent cinema theatre:
Provided that licence may be granted to one touring cinema in any place with a population exceeding fifteen thousand and if there is only one permanent cinema theatre in such place,
Explanation:-- For the purpose of this sub-rule, 'place' means an area within a radius of three miles from the site on which the permanent cinema theatre is located.'
27. Rule 16 of the Amendment Rules substituted the above Rule by the following Rule:
107. Restrictions on the grant of touring Cinema licences:-- (1) No licence for a touring cinema shall be granted:--
(a) in respect of a site situated within a distance of 1.6 kilometers from a permanent cinema or 800 meters from another touring cinema;
(b) in towns or cities having a population of twenty five thousand or more.
Explanation:-- For the purposes of this rule, 'distance' shall be reckoned along the shortest pathway, lane, street or road connecting the two cinemas and generally used by members of the public.
(2) Subject to Sub-rule (1), there shall be no other restrictions to grant licences for touring cinemas.
28. Mr. V. Krishna Murthy, learned counsel for the petitioners, addressed leading arguments in support of the petitions. Mr. B. S. Sundara Raj, learned counsel who was permitted to intervene, supplemented the arguments of Mr. Krishna Murthy by urging certain additional points. The learned Advocate-General who appeared for the State of Karnataka and the Licensing Authorities, addressed leading arguments. Messrs. S. G. Sundaraswamy, G. B. Raikar and S. G. Bhat appeared for exhibitors of permanent cinemas who have been impleaded as respondents and supplemented the arguments of the learned Advocate-General by urging certain additional points.
29. Mr. Krishna Murthy urged the following contentions:
(i) Amended Rule 107 (amended by Rule 16 of the Amendment Rules) is-
(a) ultra vires of the Act, and
(b) violative of Articles 14 and 19(1)(g) of the Constitution;
(ii) Sub-rule (2) of the amended Rule 98 (inserted by Rule 11 of the Amendment Rules) is-
(a) ultra vires of the Act; and
(b) violative of Articles 14 and 19(1)(g) of the Constitution; and
(iii) As the petitioner who had already obtained 'No objection' Certificates and had been granted licences, had applied for re-grant of licences, before amended Rule 107 came into force, their applications for re-grant of licences, should be decided applying the rules as they stood before they were so amended.
30. No counter-affidavit was filed on behalf of the State and the Licensing Authorities. Counter-affidavits were filed on behalf of some of the exhibitors of permanent cinemas who have been impleaded as respondents. The following are the relevant excerpts from those counter-affidavits :
'The provisions applicable to a touring cinema provide only elementary safety and convenience to the persons attending exhibitions there.
The State has now taken the decision that in places where there is a fairly concentrated population of twentyfive thousand or more, the safety, convenience and comfort of the people attending cinematograph exhibitions should be fully secured. According to Rule 107, persons living in such places will be able to have their recreation by visiting permanent cinemas where their safety, convenience and comfort are adequately provided for, A person who is not able to provide the safety, convenience and comfort to the people, has no right to carry on the business of cinematograph exhibitions, in such a place and claim that he has a right to impose, inconvenient and uncomfortable accommodation on the people and carry on his business.'
** ** **The people living in Bangalore have, therefore, a fairly large number of permanent cinemas where they can attend cinematograph exhibitions in great safety and comfort. A person engaged in the business of peripatetic cinema exhibitors, is free to carry on his business in places where the population is less than twenty-five thousand. Being touring cinema exhibitors, the petitioners do not provide the safety, convenience and comfort which are provided to the people in the permanent cinemas exhibition of the same films and payment of the same rate of entertainment tax, as in the case of proprietors of permanent cinemas, cannot make proprietors of touring cinemas equal to proprietors of permanent cinemas .....
A touring cinema is as defined in Rule 89 (2) a cinema taken from place to place in the State of Mysore (Karnataka) for giving Cinema Exhibitions. It is not a cinema located permanently in any place. In order to ensure that the cinema moves from one place to another in the State, so that the rural people are provided with the entertainment, provision has been made in Rule 93 (2), that no licence in respect of a Touring Cinema shall be granted continuously for a period exceeding one year unless one month has elapsed, after the expiry of the period of one year. This will ensure that the Proprietor of a Touring Cinema will move from one rural area to another rural area and after providing for entertainment in that rural area again move from that rural area. In any case, being a touring cinema, it cannot be licensed to run as a cinema continuously from year to year, in the same manner as a permanent cinema in the same place. If the daily attendance in a rural area justifies a permanent cinema, a permanent cinema with the necessary structures ensuring maximum safety, convenience and comfort for the people will have to be established. The provision in Rule 98 (2) is, in the circumstances, a reasonable restriction in the interests of the general public, on the right of a touring cinema proprietor to carryon his business.
** ** **A permanent cinema being soundproof and constructed with fire-proof material and providing for comfortable seals and other facilities required in a place of entertainment where people have to sit for long periods, can be constructed in a highly populated area at a number of places at the rate of one cinema for every ten thousand of the population. These cinemas being safe, convenient and comfortable to the people, encouraging construction of such cinemas will enable more people to have the recreation. A touring cinema is not soundproof, nor does it provide for adequate convenience or any comfort to the people. Permitting such cinemas on the basis of the population of any area is detrimental to the interests of the general public'.
31. Instead of the exhibitors of permanent cinemas trying to explain the rationale of the rules regulating touring cinemas, it would have been more satisfactory if the State had filed a counter-affidavit explaining its policy in regard to touring cinemas and the rationale of the rules regulating touring cinemas.
32. The learned Advocate-General raised a preliminary objection that the validity of amended Rule 107 (substituted by Rule 16 of the Amendment Rules) and of Sub-rule (2) of amended Rule 98 (inserted by Rule 11 of the Amendment Rules), cannot be questioned on the ground that they are violative of Article 19 of the Constitution in view of the immunity afforded by Article 358 of the Constitution.
33. Article 353 of the Constitution provides, inter alia, that while proclamation of emergency is in operation, nothing in Article 19 shall restrict the power of the State to make any law or to take any executive action which the State would but for the provisions contained in Part in, be competent to make or take.
34. The first Proclamation of Emergency was made on 28-10-1962 following the Chinese invasion of the northern border of India and that Proclamation ceased to operate on 10-1-1968. Again, on 3-12-1971 there was a fresh Proclamation of Emergency following the outbreak of Indo-Pakistan hostilities, and that Proclamation is continuing to operate. The Act was enacted when the first Proclamation of Emergency was continuing to be in operation. The Rules were made after the First Proclamation of Emergency ceased to operate and before the second Proclamation of Emergency. The Amendment Rules were made after the second Proclamation of Emergency which is continuing to operate. While the principal Rules as originally made, do not have the protection under Article 358 of the Constitution, the Amendment Rules which were made after the second Proclamation of Emergency, will have such protection.
35. However, it is necessary to examine to what extent Article 356 affords immunity from challenge. As pointed out by the Supreme Court in District Collector, Hyderabad v. Ibrahim & Co., : 3SCR498 , it is only a law which is valid but for the provisions contained in Article 19 of the Constitution, that is immune from attack under Article 358; but a law which is otherwise invalid is not immune from attack merely because a Proclamation of Emergency was in operation when it was made and is continuing to operate. In other words, on the issue of a Proclamation of Emergency, the State is, for the duration of that Emergency, competent to enact legislation notwithstanding that it impairs the freedom guaranteed by Article 19 of the Constitution, if the State is competent to make such law but for the fetter contained in Article 19. But, if the State had no competence to make such law or such law is invalid otherwise than on the ground of it being violative of Article 19, such law is not protected by Article 358.
36. Thus, if any of the Rules made after the Proclamation of Emergency are ultra vires of the Act or are violative of Article 14 of the Constitution, then those rules are not immune from attack even during the continuance of Emergency.
37. However, Mr. Krishna Murthy contended, that amended Rule 107 and Sub-rule (2) of amended Rule 98 can be impugned as being violative of Article 19, as such amendments are merely emanations of the original Rules and were made in continuation of the original Rules. In support of this contention, Mr. Krishna Murthy relied on the following observations of the Supreme Court in Bennett Coleman & Co. Ltd. v. Union of India : 2SCR757 :
'Article 358 does not apply to executive action taken during the emergency if the same is a continuation of the prior executive action or an emanation of the previous law which prior executive action or previous law could otherwise be violative of Article 19 or be otherwise unconstitutional.'
38. In K. S. Gopala Rao v. State of Mysore, (1974) 1 Kant LJ 365, Rule 107, as framed originally, was struck down by this Court as being violative of Articles 14 and 19(1)(g). Thereafter, Rule 107 was amended by Rule 16 of the Amendment Rules.
39. Rule 98, as framed originally, read as follows:
'98. Grant or refusal of licence.--On receipt of the application for licence together with the certificate of the Electrical Inspector and declaration referred to in Rule 97, the licensing authority shall issue the applicant a licence in Form 'C' or refuse to issue such licence withina period not exceeding one month from the date of its receipt.'
40. By Rule 11 of the Amendment Rules, the above Rule was re-numbered as Sub-rule (1) thereof and in the sub-rule so re-numbered, after the words 'the licensing authority shall', the words, brackets and figures 'subject to subsection (2)' were inserted and Sub-rule (2) was also inserted.
41. Mr. Krishna Murthy argued that the restrictions on the grant of licences to touring cinemas contained in amended Rule 107, were made merely in continuation of the restrictions sought to be imposed by original Rule 107. which was struck down as offending Articles 14 and 19(1)(g) and that likewise the restriction on the continuity of successive licences granted to a touring cinema, contained in Sub-rule (2) of Rule 98, inserted by the Amendment Rules, was made in continuation of the restrictions as to the duration of a licence to a touring cinema, contained in the unamended Rules.
42. On the other hand, the learned Advocate-General contended that amended Rule 107 and Sub-rule (2) of Rule 98 are entirely new provisions and not emanations of the unamended Rules.
43. There is considerable force in the contention of Mr. Krishna Murthy that the restrictions on grant of licences to touring cinemas, in amended Rule 107, are made in continuation of the restrictions sought to be imposed by original Rule 107, and that the break in the continuity of successive licences to touring cinemas, imposed by Sub-rule (2) of amended Rule 98, is a continuation of the limitation as to the duration of the licence granted to touring cinemas, contained in the unamended Rules. However, for the reasons that will be seen presently, I do not consider it necessary to express any final opinion on the question whether or not amended Rule 107 and Sub-rule (2) of amended Rule 96 are emanations of the original rules.
44. Elaborating his contention that amended Rule 107 (1) is ultra vires of the Act, Mr. Krishna Murthy urged that it is not the policy of the Act to prohibit or discourage touring cinemas and to encourage permanent cinemas, that the Act merely provides for regulating touring cinemas and that it was not open to the Government to make rules for prohibiting or discouraging touring cinemas and encouraging permanent cinemas by imposing needlessly harsh and unreasonable restrictions for grant of licences to touring cinemas. Mr. Krishna Murthy maintained that the restrictions on touring cinemas contemplated by the Act, are merely for the purpose of ensuring publicsafety, convenience and comfort of the persons attending exhibitions in touring cinemas and not for the purpose of discouraging touring cinemas and giving encouragement to permanent cinemas.
45. In support of his above contention, Mr. Krishna Murthy relied on the decision of a Division Bench of this Court in Shelvarajen v. State of Mysore, (1963) 1 Mys Lj 28. There, the validity of Rule 67 of the Hyderabad Cinematograph Rules, 1953, as amended in 1960. came up for consideration. That amended Rule provided that no licence for travelling cinematograph could be issued more than once during the same year. After setting out the relevant provisions ot the Hyderabad Cinemas (Regulation) Act, 1952, which are very similar to those of the Karnataka Cinemas (Regulation) Act, 1964, Somnath Iyer, J., (as he then was), who spoke for the Bench said thus at pages 32, 33 and 34:
'The policy of the Legislature whenit made its law was not to forbid altogether the exhibition of cinematographshows either in a tent in which the petitioner has been exhibiting his shows orin places constructed with inflammablematerials. What the Legislature on thecontrary did was to permit in terms theexhibition of cinematograph shows evenin tents. It however regulated such exhibitions by requiring the exhibitor to obtain, before exhibiting his shows, a licence under Section 5 of the Act. This isthe requirement of Section 3 of the Act.
** ** *We are not in this case concerned with the objective underlying Rule 67 as it stands now. However commendable and laudable may be the object of the rule, it is clear that that rule will not be valid or enforceable unless it was within the competence of the rule-making authority to make it....
It is difficult to find in the Act any provision which aims at the exhibition of cinematograph shows only in permanent buildings. The Act makes 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. That is what is clearly indicated by the definition of the word 'place' contained in Section 2 (c).
Whether tested by the purposes of the Act or its language, it is clear that it was not the legislative intent that cinematograph shows which are regulated by it 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 theintention of the legislature that the exhibition of a cinematograph show 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. The imposition of a restriction to that effect being one which could be made only by the legislature, if it considered it to be its policy not to permit the exhibition of cinematograph shows in non-permanent buildings during the entire year, a restriction to that effect way one which the legislature alone could have imposed by appropriate legislation.'
46. The aforesaid observations, though made while considering a somewhat different rule of the Hyderabad Cinematograph Rules, are, in my opinion, 'equally, applicable to determine the validity of Clause (b) of amended Rule 107 (1), which prohibits grant of a licence to a touring cinema in a town or city having a population of 25,000 or more. In the Karnataka Act also, there are, in my opinion, no provisions from which it is possible to spell out any legislative policy to prohibit or discourage touring cinemas and to encourage permanent cinemas. The provisions of the Act are, in my opinion, merely intended to regulate and not to prohibit or discourage touring cinemas or to encourage permanent cinemas. The Act clearly provides for granting licences to touring cinemas if they fulfil certain conditions. If Clause (c) of Section 19 (2) contemplates certain special restrictions and limitations in regard to touring cinemas, it is because of certain special features of touring cinemas which may call for greater degree of control and regulation in regard to them in public interest. If it was the intention of the Legislature that touring cinemas should be permitted to run only in places having a population of less than 25,000, it was for the Legislature to make a provision in that regard in the Act prohibiting granting a licence to touring cinemas in a town or city having a population of 25,000 or more. Prohibiting touring cinemas in places having a population of 25,000 or more, is not a matter in respect of which no legislative policy is involved. The Act does not confer on the Government any such wide and extensive power in a matter which the Legislature alone could have legislated.
47. Clause (b) of amended Rule 107 (1) is, in my opinion, ultra vires of the Act which does not prohibit a licence being granted to a touring cinema in a place having a population of 25,000 or more, if the touring cinema fulfils the conditions provided by the Rules to ensure public safety, convenience and comfort of people attending exhibitions in the touring cinema,
48. I shall next consider the contention of Mr. Krishna Murthy that Sub-rule (2) of amended Rule 93, is ultra vires of the Act.
49. Clause (c) of Section 19 (2)provides that the Government may make rules limiting the period for which licences in respect of any place may be granted for touring cinemas. Rules 99 and 105 provide that the duration of a licence granted in respect of a building constructed of inflammable material to exhibit cinema shows, shall not exceed one year and that the duration of a licence to a touring cinema shall not exceed one year. Sub-rule (2) of amended Rule 96 provides that an interval of one month should elapse after a licence granted to a touring cinema for one year expires and before such licence is renewed for a further period.
50. Mr. Krishna Murthy contended that Sub-rule (2) of amended Rule 98 does not provide for limitation of the period for which a licence can be granted for a touring cinema in respect of any place and that hence that sub-rule cannot be said to be within the scope of Clause (c) of Section 19 (2) of the Act. Mr. Krishna Murthy maintained that so long as a touring cinema fulfils the conditions prescribed by the Rules for public safety and comfort and convenience of the people visiting the shows therein (in the touring cinema), there is no reason why a licence for it to run in a particular place, should not be renewed year by year without any break or interval,
51. On the other hand, the learned Advocate-General contended that the very expression 'touring cinema' connotes that it is not a permanent cinema, that it would cease to be a touring cinema if it stays permanently in any particular place, that Clause (c) of Section 19 (2) empowers the Government to make rules for limitation of the period for which licences in respect of a place may be granted to a touring cinema and that the break of one month between successive grants of licences upto one year, is intended to make effective the limitation of the period for which such licences are granted.
52. The contention of the learned Advocate-General is, in my opinion, well founded. Clause (c) of Section 19 (2) empowers the Government to make rules imposing limitation of the period for which licence may be granted for a touring cinema in respect of a place. As stated in Maxwell on Interpretation of Statutes (12th Edition) at page 137, to carry out effectually the object of a statute, it must be so construed as to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner that which isprohibited or enjoined. The limitation as to the period for which a licence is granted to a touring cinema in respect of a place, can be defeated by granting successive licences, each for a limited period like one year. Unless a break or an interval of time between such successive licences is imposed, the limitation of the period of licence will be rendered nugatory.
53. Hence, I am unable to accept as sound the contention of Mr. Krishna Murthy that Sub-rule (2) of amended Rule 98 is ultra vires of the Act.
54. Mr. Krishna Murthy has not assailed Section 19 (2)(c) as being violative of Article 19 of the Constitution. As the Act was enacted when the fist Proclamation of Emergency was in force and as the subsequent Proclamation of Emergency still continues to operate, the provisions of the Act enjoy the immunity from attack on the ground of being violative of Article 19. That the Act was brought into force after the first Proclamation of Emergency ceased to be in force, is not material because what is relevant for the purpose of Article 358 is whether the law was made during the Emergency and not when it was brought into force.
55. Sub-rule (2) of amended Rule 98 which provides for a break or interval of one month between expiry of a licence for one year and re-grant of such licence for a touring cinema in respect of the same place, was assailed by Mr. Krishna Murthy as imposing an unreasonable restriction on the right of an exhibitor of a touring cinema to carry on his business and thereby offending Article 19(1)(g) of the Constitution.
56. As stated by the learned Advocate-General, the restriction imposed by Sub-rule (2) of amended Rule 98, is intended to ensure that a touring cinema retains its character as touring cinema and does not stay permanently in any particular place. Such restriction is necessary to carry into effect the limitation of the period for which licences in respect of any place may be granted for touring cinemas, as provided in Sec. 19 (2) (c) of the Act. A restriction on a touring cinema which is intended to preserve its character as a touring cinema and to prevent it from becoming a permanent cinema without complying with the conditions imposed by the Rules on a permanent cinema, cannot, in my opinion, be regarded as an unreasonable restriction. Nor can the period of one month provided by that Sub-rule as the minimum interval between successive grants of licences to a touring cinema in respect of the same place, be regarded as unreasonably long.
57. Even assuming that Sub-rule (2) of amended Rule 9;8 does not enjoy the immunity under Article 358 of the Constitution, it (that sub-rule) is not violative of Article 19(1)(g).
58. Merely because there is no provision corresponding to Sub-rule (2) of amended Rule 98 applicable to permanent cinemas, it does not follow that that sub-rule brings about an impermissible discrimination between permanent cinemas and touring cinemas so as to offend Article 14 of the Constitution. There is an intelligible differentiation between touring cinemas and permanent cinemas so as to constitute a valid classification between the two and such classification has a reasonable relation to the object of Sub-rule (2) of amended Rule 98, namely, a touring cinema, unlike a permanent cinema, should not permanently stay in any particular place, but should retain its character as a touring cinema.
59. Thus, Sub-rule (2) of amended Rule 98 is not violative of Article 14 of the Constitution.
60. Mr. Krishna Murthy next contended that Clause (a) of amended Rule 107 (1) is discriminatory and is violative of Article 14 of the Constitution as it provides for a minimum distance of 1.6 Kilometers between a permanent cinema and a touring cinema and a minimum distance of only 800 meters between two touring cinemas. Mr. Krishna Murthy maintained that there is no justification for such differential minimum distances.
61. On the other hand, the learned Advocate-General and Mr. Sundaraswarny urged that as the classification between touring cinemas and permanent cinemas is a valid classification, prescribing different minimum distances as between a touring cinema and a permanent cinema on the one hand, and as between two touring cinemas on the other, cannot be said to be violative of Article 11 The learned Advocate-General maintained that a permanent cinema will generally have a larger seating capacity than a touring cinema and will serve a larger. number of cinema-goers than a touring cinema and that hence it is not unreasonable to provide that the distance between a permanent cinema and a touring cinema should be twice the distance between two touring cinemas.
62. It was also contended by Mr. Krishna Murthy that Clause (a) of amended Rule 107 (k) which provides that no licence for a touring cinema shall be granted in respect of a site situated within the distance of 1.6 Kilometers from a permanent cinema or 800 meters from another touring cinema, is an unreasonable restriction on the fundamental right of an exhibitor of a touring cinema tocarry on his business. Mr. Krishna Murthy relied on the observation of a Division Bench of this Court in Salimath V. District Magistrate, Bijapur (1905 (1) Mys LJ 337) that the right to operate a cinema is a fundamental right guaranteed by Article 19(1)(g) of the Constitution and that all that a law can do is to impose reasonable restrictions on such right.
63. On the other hand, the learned Advocate-General maintained that the restriction as to certain minimum distance between one touring cinema and another touring cinema or a permanent cinema, is necessary to maintain law and order and to avoid overcrowding of cinema theatres which would result in congestion of traffic and disturbance of peace and quietness.
64. I do not consider it necessary to pronounce on the contentions that Clause (a) of amended Rule 107 (1) is violative of Arts. 14 and 19(1)(g) of the Constitution, because the applications of the petitioners for regrant of licences, should be disposed of without reference to amended Rule 107, as I shall presently point out.
65. It is undisputed that the petitioners had been granted licences to run touring cinemas and that they have applied for regrant of licences to run the touring cinemas in the same places. Before granting such licences, they must have been granted, in the first instance, 'No Objection Certificates' in respect of the buildings or tents wherein they had been running touring cinemas.
66. In Channagiri Rangappa and Sons v. District Magistrate, Chitradurga, (1971) 1 Mys LJ 60 = (AIR 1971 Mys 244) a Division Bench of this Court (of which I was a member) explained the significance of 'No Objection Certificate' as follows at page 64:
' 'No Objection' Certificate is, in substance, merely the first stage in the grantof a licence for the construction of acinema theatre on a particular site or forconversion of existing premises into acinema theatre. A 'No Objection' Certificate must be regarded as a part of a licence. The scheme of the Rules appearsto be to determine in two stages, thequestion whether a licence should begranted to a permanent cinema. At thefirst stage, namely, the stage of grantingor refusing a 'No Objection' Certificate,the situation of the site proposed for apermanent cinema theatre, the suitabilityof such site and the objections of thepublic for the location of the theatre, areconsidered.
Presumably, these two stages in licensing of cinema, are intended to eliminate expenditure and hardship that may result by allowing a person to constructa permanent theatre at huge expenditure and then refusing licence to run a cinema in that theatre on the ground of unsuitability of the situation of that theatre or on the ground of objections of the public. If a 'No Objection' Certificate is granted to a person in respect of the proposed site after considering the objections that may be received, much of the risk and uncertainty is removed. If the grantee of a 'No Objection' Certificate constructs the theatre on such site so as to conform to the conditions set out in Rule 11 and if the electrical installations are certified to be satisfactory by the Electrical Inspectorate, the grant of a licence ordinarily follows.'
67. Though the above observations were made with reference to grant of licences to permanent cinemas under the Mysore Cinematograph Rules, 1946, they (those observations) are, in my opinion, equally applicable to grant of licences to touring cinemas also under the present Rules which expressly provide for the stage of granting a 'No Objection' Certificate before a licence is granted to a permanent cinema or a touring cinema.
68. As 'No Objection Certificates' had been granted to the petitioners in respect of the theatres where they had been running touring cinemas and as they have applied for re-grant of licences in respect of the same places, the first stage of granting licences to them had been completed. If they (the petitioners) have fulfilled the other conditions (conditions other than those relating to.location of the theatres), grant of licences to them should ordinarily follow. Hence, it would be unreasonable to construe amended Rule 107 as being applicable to cases in which 'No Objection Certificates' had been granted before Rule 107 was amended so as to render invalid such 'No Objection Certificates' which had been granted under the Rules as they stood before such amendment.
69. The view I have taken, was also the view of Jegannatha Shetty, J.. in W. P. No. 5240 of 1974 (Mys.) (D. S. Nanjappa v. State of Karnataka). In that case a 'No Objection Certificate' had been granted to respondent 3 therein on 28-2-1974. The grant of a licence to him after 25-4-1974 was impugned on the ground that the distance between the site of his touring cinema and another touring cinema, was less than 800 meters. Repelling that contention, his Lordship said thus:
'It is true that the rule (amended Rule 107) imposes a restriction against grant of licence for a touring cinema, if the touring cinema's site is within 800 meters from another touring cinema camp site. But that rule cannot be a bar against grant of licence in this case. Respondent3 had obtained No Objection Certificate before amended rule came into force.'
70. That the above observations were made in the course of an order after preliminary hearing and not after final hearing of the case, can make no difference because an enunciation of law made after preliminary hearing of a case, has as much authority as a precedent as that made after final hearing of a case.
71. However, the learned Advocate-General contended that the decisions in Channagiri Rangappa's case, (1971) 1 Mys LJ 60 = (AIR 1971 Mys 244) and in W. P. No. 5240 of 1974 (Mys.), dealt with cases of grant of licences in the first instance and that the views expressed therein can have no application to the present cases in which the petitioners have sought for regrant of licences. He maintained that making an application for regrant of a licence, does not create any right in the applicant that such regrant should be governed by the law as on the date of his application and that such application should be dealt with according to the law prevailing on the date of making the order thereon.
72. In the Rules as originally framed, there was no express provision for regrant of licences. However, Rule 100 which prescribes fee for licences mentioned of both grant and regrant of licences. Amended Rule 105 (which was substituted by Rule 15 of the Amendment Rules) expressly provides for regrant of licences of touring cinemas. Sub-rule (3) of that Rule provides that on receipt of an application for regrant of a licence, the licensing authority may, after such enquiry as it deems necessary, subject to Rule 99, regrant a licence.
73. Sub-rule (2) of amended Rule 105 provides that every application for re-grant of a licence shall be accompanied by--
(i) a certificate of the Electrical Inspector;
(ii) a certificate referred to in Clause (d) of Sub-rule (1) of Rule 97;
(iii) treasury receipts for payment of fees at the rates specified in Rule 106; and
(iv) a copy of the licence originally granted.
74. Clause (d) of amended Rule 97 (1) provides for the production of a certificate from the concerned Tahasildar in respect of matters covered by Rules 91 to 95 (Rule 91 relates to the condition of the building. Rule 92 relates to sanitary convenience in the building. Rule 93 relates to the question whether the building in which the touring cinema is proposed to be operated, is so inflammable as to be a danger to the public or to the nearby building. Rule 94 relates to providing sufficient apertures for a buildingconstructed of inflammable materials, Rule 95 relates to covering doors and apertures by mats or screen).
75. Thus, it is seen while considering whether a licence should be re-granted or not, what the licensing authority has to satisfy itself is whether there is a proper certificate of the Electrical Inspector, whether the requirements of Rules 91 to 95 are satisfied, whether the fee for re-grant of licence has been paid and whether the building of the touring cinema is constructed of inflammable materials. At the stage of re-grant licence the licensing authority is not required to examine whether the conditions of Rule 107 have been satisfied. The question whether the requirements of Rule 107 have been satisfied, will arise only at the stage of deciding whether or not to grant a 'No Objection Certificate'. Once the same has been granted, the question whether the requirements of Rule 107 have been satisfied, cannot again be considered while deciding whether or not the licence should be granted or re-granted.
76. It is a well-settled rule of construction that an amendment of a statutory provision should not be given retrospective effect so as to invalidate acts that have already been done in conformity with law as it stood before such amendment, unless such an intention is clear from that amending provision. There is nothing in amended Rule 107 to show that it is intended to have retrospective effect so as to invalidate a 'No Objection Certificate' granted prior to such amendment. Having once granted 'No Objection Certificates' to the petitioners, it is not open, in my opinion, to the licensing authorities to consider whether such certificates are in conformity with amended Rule 107 for the purpose of deciding whether licences should or should not be re-granted to the petitioners for operating touring cinemas in the sites in respect of which such 'No Objection Certificates' had been granted.
77. The petitioners have not questioned the validity of Rule 99 which provides that no building constructed of inflammable materials shall be licensed to exhibit shows in any place for a period exceeding one year. If any touring cinema is run in any place in a building constructed of inflammable materials, the licence to exhibit shows therein cannot be re-granted if a period of one year has expired since the first grant of such licence However, if a touring cinema is run in any place in a building constructed of materials which are not inflammable licence to exhibit shows therein can be re-granted even after the expiry of one year from the date of first grant of licence subject however to the break of one month as provided in amended Rule 98 (2).
78. In the result, I allow these petitions partly and-
(i) declare that Clause (b) of Sub-rule (1) of amended Rule 107 of the Karnataka Cinemas (Regulation) Rules, 1971, is ultra vires of the Karnataka Cinemas (Regulation) Act, 1964;
(ii) quash the order of the licensing authority (the District Magistrate, Bellary) dated 24-8-1974, refusing to re-grant the licence to the petitioner in W. P. No. 4219/1974; and
(iii) issue a mandamus in each of these petitions, to the respective licensing authority to consider the application of the respective petitioner for re-grant of licence without applying amended Rule 107 of the Karnataka Cinemas (Regulation) Rules, 1971.
79. In the circumstances of these petitions, parties are directed to bear their own costs.
80. Petitions partly allowed.