1. The matter arises under the Andhra Pradesh Cinemas (Regulation) Act, 1956 (hereinafter called the Act), Section 6 of the Act excludes the application of all other analogous (provisions) to the construction or reconstruction of a building or the use, or the installation of any machinery in any place or building to be used exclusively for the holding of cinematography exhibitions. The Act directs that in every such case, an application for license or permission shall be made to the licensing authority under the Act in accordance with the Rules made in that behalf. Petitioner satisfied all the Rules and made a proper application to the competent authority which is the District Revenue Officer Guntur, for the grant of a permission to construct a cinema theater in T. S. Nos. 541 and 542 of Kothapeta, Guntur Town. That application was made(?) by the Distt. Revenue Officer on 30-9-74 under R. 9. By reason of these proceedings of the District Revenue Officer dated 30-9-74, the petitioner became entitled to construct a cinema theater in the aforesaid T.S. Nos, 541 and 542 Kothapeta, Guntur Town. But one of the limitations subject to which this permission is granted is contained m condition No. 13 which Prescribes that the theatre must be constructed within one year which means that the theatre ought To have been constructed before 30-9-15. For a variety Of reasons which have been enumerated in detail by the petitioner m his writ petition including civil, litigation at the instance of the Guntur Municipal Council about the same plot of land the petitioner, it was said, was unable to construct the theatre within that period The petitioner therefore, looked to the help of the Act and made an application to the District Revenue Officer, Guntur on 26-9-1975 asking for grant of extension of tune for the construction of the theatre. This application was made under R 17 (4) (c) which empowers the licensing authority is the Distinct Revenue Officer to grant further extension of time fixed in the original permission for the construction of the theatre. This application for extension of time was received by the District Revenue Officer on 27-9-75 but thereafter, he did neither speak nor act. He kept silence The petitioner's application for extension must therefore, be taken to be pending with the District Revenue Officer.
2. The petitioner had, however, revised a show cause notice from the Government on 31-5-76 calling upon him to show cause why the permission granted to him should not be canceled for violation of condition No.13. (The Government really meant non-compliance with condition No. 13). The petitioner gave his explanation on 16-6-76 and the Government passed its order on 9-11-1977 canceling the permission granted to the petitioner on the ground that he had failed to comply with condition No. 13. It is this order which is challenged in this writ petition.
3. In this writ petition as I am considering only the question of jurisdiction of the Government to pass the impugned order. I decline to go into other matters raised and argued.
4. The only provision of the Act under which power of cancellation of permission already granted can be exercised by the State Government is Section 6(2) which runs as follows:
'Subject to the control of the Government and to any rules made in this behalf, the licensing authority, after making such enquiry as it deems fit and consulting the chief executive officer (by whatever designation he may be known) of the local authority concerned, may, for reasons to be recorded either grant or refuse to grant the license or permission applied for'.
5. This sub-section makes it clear that primary authority to grant or refuse permission is the licensing authority which may grant or refuse to grant the permission applied for. But, such a permission granted by the licensing authority is made by the Act subject to the control of the State Government under S. 6(2), But the question now is :
Is the State Government exercising such a power in this case?
I think not.
6. It is now settled that the words 'subject to control' would undoubtedly confer both appellate as well as revisional jurisdiction on the State Government and also empower the Government issue quasi legislative general directions to the primary licensing authority, But over and beyond that, those words do not confer any power on the State Government. Clearly, they would not empower the State Government to exercise an original jurisdiction in other 'words, it is always competent subject to other conditions for the State Government to cancel or revoke a permission granted by the licensing authority provided there are justifiable reasons. In this case, if the Government has canceled the permission granted by the licensing authority on the ground that the granting of such permission by the licensing authority itself is wrong, I would have clearly held that the action is well within the powers and the competence of the Government (provided of course, that such an exercise of power does not suffer from other vices), In such case, the Government would be exercising its statutory control over the activity of the licensing authority either by way of appeal or revision. That is what S. 6(2) expects. But in this case, the Government canceled the permission on the ground that the petitioner failed to fulfill condition No. 13. In doing so, it appears to me, that the Government is neither revising nor controlling any action of the licensing authority It is directly dealing with the permit holder and his conduct. What is made subject to the control of the Government under S. 6(2) is neither action nor inaction of the permit-holder, but the action of the licensing authority. I am, therefore of the view that the action of the Government in revoking the permission granted to the petitioner on the ground that the petitioner had failed to comply with condition No, 13 is wholly ultra vires of the powers of the Government.
7. There are far more important constitutional considerations which impel me to take this view. Let us rum to the language of S. 6(2) once again The. language is capable of giving rise to two questions: (a) Control by whom? and (b) control over whom? It is plainly control by the State Government. So much is clear from the language. It is equally plain that control is over the licensing authority and its activity under S 6 of the Act and not all over the permit-license-holder. If we say that State control extends to and covers the activity of the permit license-holder, it means that we are to that extent supplanting the primary authority which is the District Revenue Officer, by the State Government. In the parlance, the revisional or appellate quasi-judicial power of the State Government would be turned into original power. This interpretation would upset the hierarchical two-tier system of power set up by the Act following a long tradition of public administration obtaining in British Parliamentary system. There are undoubted constitutional advantages in routine State authority through this paramedical structure of power, although I am not blind to its weaknesses of tardy and slow action. But some degree of red-tap may not prove to be an unmixed curse. The District Revenue Officer is the local officer on the spot who is expected to have personal and intimate Knowledge of the whole gamut of facts and situation, the consideration of which is relevant for granting or refusing permission. He is fairly high up in the pyramid of power and, therefore, can normally be erected to exercise his powers fairly and judicially in relation to citizen's activity protected by a constitutional safeguard. The exercise of power by a more impersonal body like the State Government removed some time by hundreds of miles from the scene cannot have these salutary advantages. Above all, the concentration of political and administrative powers m the same body of persons cannot but lead ultimately to unchecked abuse and authoritarianism This danger to liberty was first noticed by Montesquieu who erected the rampart of separation of powers 14 defence of Liberty. But, that doctrine dealt with separation of powers between the Executive, the Legislature and the Judiciary. It is not strictly concerned with the modern problems where the Executive is Increasingly exercising more and more administrative powers in addition to its political authority. But, we can draw lessons from Montesquieu. If the same person who wields political Power also exercises administrative power, the fragile parliamentary control of public administration already weakened as it is by the system of party whip, becomes all the more atrophied and we would be moving perilously close to a totalitarian state. We should not forget that we are living in-dangerous times where Parliament is slowly declining in its authority (Kecton G.W.). In these changing times, the administrative powers wherever possible must be separated from the powers of the political executive. The practical relevance of Montesquieu is ever-lasting although his doctrine is theoretically assailable. Till the millennium arrives and the State withers away diffusion of authority and decentralization of powers would remain necessary conditions for the survival of any democratic society, particularly an infant democratic society like ours. When therefore a Statute is capable of being interpreted in more than one way, that interpretation based upon the high constitutional doctrine of checks and balances must be adopted by the Courts. This interpretation, I believe, would be much dearer to the freedom loving hearts of Locke, Montesquieu and Gandhi.
8. State of Punjab v. Hari Kishan, : 2SCR982 is a case which arose under the Punjab Cinemas (Regulation) Act. Section 5 of that Act corresponds in material particulars to Sec. 6 of our Act. Section 5(2) of the Punjab Act reads as follows:--
'Subject to the foregoing provisions of this section and to the control of the Government, a licensing authority may grant licences under this Act to such persons as it thinks fit, on such terms and conditions as it may determine.'
9. Dealing with S. 5(2) of the Punjab Act, the Supreme Court observed: 'The Control of Government contemplated by S. 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 the application 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 S. 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 S. 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.'
10. This passage makes it clear that the controlling power of the Government given by the Statute must operate open the orders of the licensing authority and not on the activity of the applicant.
11. In this case, the petitioner has already made an application to the District Revenue Officer for the extension Of time under Rule 17. Any order passed by the District Revenue Officer could dearly be subject to the control of the Government. But the Government cannot cancel the permission of the petitioner on the ground that he did not fulfill condition No. 13. That would be exercising original authority
12. in view of the above, I allow this writ petition with costs and set aside the order of the Government. This order does not preclude the Government from taking such steps as are available to it under Law. Advocate's fee: Rs. 150/-.
13. Writ petition allowed.