R.B. Misra, J.
1. The facts leading up to the present petition under Article 226 of the Constitution lie in a narrow compass. Smt. Sushila Narendrajit Singh (Petitioner No. 1) owns the premises known as Vivek Cinema at 14/151, Mahatma Gandhi Marg, Chunniganj, Kanpur and Direndrajit Singh (petitioner No. 2) is the son of petitioner No. 1. The premises (Vivek Cinema) was given on lease to M/s. Rakesh Theatres (respondent No. 3), which is a partnership firm of which Virumal Dembla (respondent No. 4) is the Managing Partner. Manohar Lal Dudeja (respondent No. 5) is another partner of the firm. The lease was granted on 1st July, 1955, in the first instance for a term of five years with an option to the lessee of renewal of the lease for another five years. The lessee obtained A licence from the District Magistrate, Kanpur, who is the Licensing Authority under the U. P. Cinemas (Regulations) Act, 1955 (U. P. Act of 1956 -- hereinafter referred to as the U. P. Act) for giving exhibitions by means of cinematographs, and the licence was renewed from year to year.
2. According to the petitioners respondent No. 3 availed of the option of the renewal of the lease of the premises, and thus the lease expired on 30th Tune, 1965. Thereafter the lease became a lease from month to month. Petitioner No. 1 terminated the lease by giving one month's notice dated 24th February, 1971 under Section 106, Transfer of Property Act. The notice was served on respondent No. 3 through its Managing Partner (respondent No. 4) on 26th February, 1971. So, after the termination of the period of notice Messrs. Rakesh Theatres were in unlawful possession of the premises in question from 26th March, 1971.
8. On 15th March, 1971 the petitioners jointly applied to the Licensing Authority, the District Magistrate of Kanpur, for the renewal of the cinema licence in their names. It was stated in the application that the lease of Messrs. Rakesh Theatres had been terminated and they were not entitled to hold the licence for running cinema business and exhibiting films in Vivek Cinema. A copy of the application has been filed as Annexure 2 to the petitioner. The same day (15th March, 1971) the Managing Partner (respondent No. 4) also wrote to the District Magistrate, Kanpur to inform him that with reference to their (Messrs. Rakesh Theatres) renewal application for licence dated 21st January, 1971, it had been mutually decided that the licence be renewed in the name of the petitioners. The consent of the petitioners for the licence to be issued in their own name was also endorsed on this communication to the District Magistrate. A copy of this letter dated 15th March, 1971 has been filed as Annexure 4 to the petition. Soon thereafter, on 19th March, 1971, the Managing Partner wrote to inform the District Magistrate, Kanpur that his letter dated 15th March, 1971 for renewal of the cinema licence in favour of the petitioners may be treated as cancelled. Eventually, on the basis of a Government Order dated 29th March, 1971 (a copy of which has been filed as Annexure 5 to the petition) the licensing authority renewed the licence (a copy of which has been filed as Annexure 6 to the petition) in favour of respondent No. 3 for a period of one year from 1st April, 1971 to 31st March, 1972, while no orders were passed by the licensing authority on the application of the petitioners. The petitioners, therefore, pray for the issue of a writ of certiorari or any other suitable writ, order or direction quashing the G. O. dated 29th March, 1971, and also the license or its renewal by respondent No. 2 in favour of respondent No. 3, as well as the order renewing the licence in favour of respondent No. 3. The petitioners also seek the issue of a writ of mandamus directing the Licensing Authority to decide the application of the petitioners for the issue of licence uninfluenced by the G.O. dated 29th March, 1971.
4. The grievance of the petitioners is that the licensing authority, without affording any opportunity to them in contravention of the statutory requirements renewed the licence in favour of respondent No. 3 under the influence of the G.O. dated 29th March, 1971 (sic) is ultra vires the Act and the rules framed thereunder. It is also urged that no order has been passed on the petitioners' application for the issue of licence in their favour.
5. In order to appreciate the points, it will be necessary to refer to certain provisions of the Cinematograph Act and the rules made thereunder.
6. The Cinematograph Act of 1918, contained provisions relating to both (a) the certification of films as suitable for public exhibition, and (b) the regulation of cinemas, including their licensing. In the Constitution, however, while the former item was included in the Union List, the latter finds place in the State List. As a clear demarcation of the respective provisions of the Act with which the Union and State Governments were concerned had become necessary, the Union Government re-enacted the provisions of the old Act as in the Cinematograph Act of 1952 separating the provisions relating to the two items referred to above. Part III of the latter Act deals with the regulation of cinemas, including their licensing and applies to Part C States directly administered by the Union Government. Thereafter the U. P. Legislature enacted the Uttar Pradesh Cinemas (Regulations) Act, 1955 only to regulate cinemas including their licensing, which is now within the legislative powers of States.
7. Section 3 of the U. P. Act provides that 'no person shall give an exhibition by means of a cinematograph elsewhere than in a place licensed under this Act or otherwise than in compliance with conditions and restrictions imposed by such licence.' Section 4 confers right on the District Magistrate as Licensing Authority to grant licence. Section 5 deals with restrictions on the powers of licensing authority, and reads:--
'5. (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 exhibitions therein.
(2) Subject to the foregoing provisions of this section and to the control of the State Government and the interests of the general public, the licensing authority may grant licences under this Act on such terms and conditions and subject to such restrictions as it may determine and on payment of such fee as may be prescribed.
(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 and the State Government may make such order in the case as it 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.' Section 7 confers powers on the State Government or the licensing authority to suspend, cancel or revoke a licence granted under Section 5 on grounds inter alia that the licensee has been guilty of breach of the provisions of the Act or the rules made thereunder or of any condition or restrictions contained in the licence, or of any direction issued under Sub-section (4) of Section 5. Section 13 confers on the State Government the rule-making power.
8. 'Licence' as defined in Rule 2 (v) of the U. P. Cinematograph Rules, 1951, means 'a written authorisation by the Licensing Authority to give cinematograph exhibitions and granted in the form set out in Appendix I to these rules and shall be subject to necessary modifications or amplifications in accordance with any terms or conditions imposed under Sub-section (3) of Section 5 of the Act.' Rule 2 (1) defines 'Act' to mean 'the Cinematograph Act, 1918, as amended from time to time.'
9. Appendix I attached to the U. P. Cinematograph Rules, 1951 prescribes the following statutory form of licence:--
'(a) ---------- situated at (b) --------within the District of ------------ is licensed under Section 3 of the Cinematograph Act, 1918 (Act II of 1918), as a place where exhibitions by means of a cinematograph may be given from--------19 , to------------19 , both days inclusive.
This licence has been granted to (c)---------- and shall be terminated forthwith if the said (c) -------- ceases to own, to hold on lease or to manage the said (a)
This licence is granted subject to the conditions set forth in rules issued by the State Government and to the further conditions-
(1) that the said (c) ------------ shall not exhibit, or permit to be exhibited, in the said (a) ------------ any film other than a film which has been certified as suitable for public exhibition by an authority constituted under Section 6 of the Cinematograph Act, and which, when exhibited, displays the prescribed mark of that authority, and has not been altered or tampered with in any way since such mark was affixed thereto,
(2) that the said (c) ------------ shall cause to be exhibited at each performance given after the 30th September, 19-16, in the (a) ------------ one or more approved films..........
The ........ 19
This form clearly stipulates that the licence even when granted was 'to be terminated forthwith if the licensee ceases to own, to hold on lease or to manage the cinema premises.' It is evident from the definition of 'licence' as contained in Rule 2 (v) of the U. P. Cinematograph Rules, 1951 that Appendix I (quoted above, and providing for the requirements of the licence) forms part of the Rules. It is evident from paragraph 2 of the form that a statutory requirement for the issue of the licence was that the licensee must either own the cinema premises, or hold it on lease, or manage the cinema premises, and the licence, though granted, was to be terminated forthwith if this condition was at any stage not fulfilled. It is further evident from this form that in addition to the above requirement the licence was to be granted subject further to the conditions set forth in rules issued by the State Government.
10. According to the petitioners, after the service of notice under Section 106 of the Transfer of Property Act the possession of the lessee became unlawful and respondent No. 3 ceased to 'own, to hold on lease or to manage' the cinema from 26th March, 1971, and no licence could be renewed in any case thereafter.
11. Sri S. C. Khare, appearing for respondent No. 3, however, contended that the notice under Section 106 of the Transfer of Property Act sent by petitioner No. 1 was not a valid notice and it did not terminate the tenancy. According to him, six months' notice was necessary under the law while the petitioner gave only one month's notice.
12. Under Section 106 of the Transfer of Property Act six months' notice is required only in case of a lease of immoveable property 'or agricultural or manufacturing purposes' which is to be deemed to be a lease from year to year, and in case of a lease of immoveable property for 'any other purpose' the lease would be deemed to be from month to month requiring only fifteen days' notice. The period of 15 days has been raised to 30 days by U. P. Act of 1954. The premises in the instant case was let out to respondent No. 3 on a monthly rent and the agreement does not show that the lease was from year to year. Further, the premises was not leased out 'for agricultural or for manufacturing purposes', and for that reason also it could not be a lease from year to year.
13. In the instant case the lessee continued in possession even after the lease had come to an end as a result of the service of notice under Section 106. Section 116 of the Transfer of Property Act provides that if a lessee remains in possession after the determination of the lease granted to him and the lessor accepts rent from the lessee or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106. Thus in view of the clear provisions of Section 116 of the Transfer of Property Act also the lease in the present case, being from month to month, was terminable by fifteen days' notice, which has been raised to thirty days by U. P. Act No. 24 of 1954.
14. It was urged on behalf of the respondent that the lease was renewed not for five years only but for ten years and would expire on the 30th of June, 1976. But this contention is neither supported by any document nor it is clear from the averments made by respondent No. 4 in paragraph 3 of his counter-affidavit, as to when the lease in question was renewed for a period of ten years. On the other hand it is clear from paragraph 4 of the counter-affidavit of Sri Ram Chand Bhatia, Senior Entertainment Tax Inspector, filed on behalf of the State, that 'the lease was granted on 1st July, 1955 for a term of five years and subsequently it was renewed for another five years. In view of the material on record it is therefore difficult to accept the contention of respondent No. 3 that the lease was renewed for a period of ten years and would expire on 30th June, 1975.
15. Sri Khare next contended that the lessee was entitled to the protection of the U. P. (Temporary) Control of Rent and Eviction Act and, in any case, after the service of notice under Section 106, Transfer of Property Act the status of the lessee would become the status of a statutory tenant in the present case and the interest of respondent No. 3 would be protected unless evicted in due course of law.
16. But not a word has been said in the counter-affidavit that the premises in question was an old construction so as to attract the provisions of the U. P. (Temporary) Control of Rent and Eviction Act. All that has been said in paragraph 3 of the counter-affidavit of respondent No. 4 is that the notice under Section 106 of the Transfer of Property Act was illegal and invalid and that it had been properly replied to by the answering respondent. From the copy of the reply filed as Annexure C-l to the counter-affidavit of respondent No. 4, it appears that it was asserted there that major portions of the constructions in the premises in question were old constructions which were complete on 31st December, 1950 and only minor additions were made subsequently and the accommodation was governed by the U. P. Act III of 1947. In spite of this assertion in the reply to the notice under Section 106, T. P. Act, there is not a word in the counter-affidavit to say that the premises in question was an old construction and the provisions of the U. P. (Temporary) Control of Rent and Eviction Act apply to it. It is difficult, therefore, to accept the contention of Sri Khare that the provisions of U. P. Act III of 1947 apply to the present case and the lessee would be held to be a statutory tenant even after the service of notice under Section 106, T. P. Act.
17. Sri Khare then urged that according to the definition of licence' as contained in Rule 2 (v) of the U. P. Cinematograph Rules, 1951, the licence would be granted in the form set out in Appendix I to the Rules and shall be subject to necessary modifications or amplifications in accordance with any term or conditions imposed under Sub-section (3) of Section 5 of the Act.
18. It would be noticed that the 'Act' as defined in the U. P. Cinematograph Rules, 1951, and referred to in Rule 2 (v) above, means 'the Cinematograph Act, 1918'. Section 5 of the Cinematograph Act, 1918 imposes restrictions on the power of the licensing authority, and Subsection (3) of Section 5 provides:--
'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 it thinks fit, and on such terms and conditions and subject to such restrictions as it may determine.'
A controversy was raised as to whether the 'Act' referred to in Clause (v) of Rule 2 of the U. P. Cinematograph Rules, 1951 means the Cinematograph Act, 1918 or the U. P. Cinemas (Regulations) Act, 1955.
19. It is, however, not at all necessary to enter into this controversy because the wordings of Sec. 5 of the Cinematograph Act, 1918 are substantially the same as that of Section 5 of the U. P. Cinemas (Regulations) Act, 1955. Sub-section (1) of Section 5 of the U. P. Act provides that the licensing authority shall not grant a licence unless it is satisfied, among other things, that the rules made under the U. P. Act have been substantially complied with, and Sub-section (2) contemplates that, subject to the foregoing provisions of the section and to the control of the State Government and the interests of the general public the licensing authority may grant licences under the Act on such terms and conditions and subject to such restrictions as it may determine. Thus it is clear from the wording of Sub-section (2) of Section 5 of the U. P. Act that the licence had to be granted strictly in compliance with the rules made under the U. P. Act and also subject to the control of the State Government. The licensing authority had, therefore, to satisfy himself about both the conditions and it would be incongruous to say that the State Government could give directions contrary to the Rules. The Rules framed under the U. P. Act had got to be substantially complied with before a licence could be granted. The control of the State Government could not do away with those Rules. To my mind the State Government was authorised only to add to the conditions contained in paragraph 3 of the Appendix I to the U. P. Cinematograph Rules, 1951, and had no power to alter the condition contained in paragraph 2 thereof. The State Government could not give directions which might run counter to the condition contained in the second paragraph of Appendix I or to the rules framed under the U. P. Cinematograph Rules.
20. As indicated above, the second paragraph of Appendix I (which forms a part of the U. P. Cinematograph Rules) clearly provides that the licence shall be terminated forthwith if the licensee 'ceases to own, to hold on lease or to manage the said cinema (premises)'. Respondent No. 3 was obviously not the owner of the cinema premises. It was only a lessee. On the termination of the lease by the service of notice under Section 106 the Transfer of Property Act respondent No. 3 ceased to hold on lease the premises. From the date of determination of the lease respondent No. 3 became a trespasser. The expression 'to hold on lease' necessarily means holding validly and does not connote an occupier.
21. The word 'hold' used in Section 9 of the U. P. Zamindari Abolition and Land Reforms Act came up for consideration in '1953 All LJ 197' = (AIR 1953 All 406) (Pheku Chamar v. Harish Chandra), and it was held that the expression 'hold' used in Section 9 denotes that the person in possession is there because of some right or title to the land.
22. The lease in favour of respondent No. 3 having come to an end by the service of notice under Section 106 of the Transfer of Property Act, the lessee ceased to hold on lease the premises. But the State Government, under G.O. dated 29th March, 1971 (copy whereof has been filed as Annexure 5 to the petition) issued instructions to the effect that 'in cases where there is a dispute over the cinema building between the landlord and tenant/lessee, the licence may continue to be granted in favour of the tenant/in favour of the lessee, according to law if he is in possession of cinema building so long he is not evicted under the orders of a competent Court of law......' Evidently this direction runs counter to the condition contained in the second paragraph of Appendix I, forming part of the U. P. Cinematograph Rules, 1951, and is ultra vires the Rules and the Act. As indicated above, under Section 5(2) of the U. P. Act the State Government was not given power to grant licences on terms and conditions in contravention of the Act or the Rules.
23. This leads me to the consideration of the second contention of Sri V. K. S. Chaudhry, appearing for the petitioners, that the licensing authority has not passed any order on the petitioners' application for the renewal of the licence in their names. It is urged that in any case the petitioners were not given any opportunity before renewing the licence in favour of respondent No. 3.
24. The question therefore arises whether the proceedings for the grant of licence are administrative or quasi-judicial proceedings. Since the right or the petitioners has been affected by the renewal of the licence in favour of respondent No. 3, in my opinion the proceeding is quasi-Judicial. Rut from the report of the Entertainment Tax Officer it appears that the petitioners had an opportunity of representing their case before him. The grievance of Sri V. K. S. Chaudhry is that he was entitled to have an opportunity from the District Magistrate, who is the licensing authority, and the District Magistrate gave no opportunity to the petitioners. The observation of the Entertainment Tax Officer in his report to the licensing authority that he heard both the parties does not fulfill the requirements of justice and fair play.
25. The petitioners cannot urge that they had the right of personal hearing. All that they can claim is that they should have had a fair opportunity of making a representation. If a report had been called for by the District Magistrate from the Entertainment Tax Officer, and the Entertainment Tax Officer gave the petitioners an opportunity, the renewal of the licence cannot be challenged on the ground that they had no opportunity. Reasonable opportunity of making a representation will vary from case to case. Renewal of licence by the District Magistrate in favour of respondent No. 3 cannot on this score be challenged. But since the licensing authority has renewed the licence under the influence of the G.O. dated 29th March, 1971, the renewal is bad in law and cannot be sustained.
26. Sri S. C. Khare, appearing for the respondents, however, opposed the petition on various technical grounds. To start with, he urged that the licensing authority has not to make a detailed inquiry and to decide complicated questions of fact and law in granting a licence. So the proper course for the petitioners was to file a suit for ejectment of respondents Nos. 3 to 5 and to get adjudication from a competent Court for the eviction of the respondents from the premises. Instead, the petitioners chose to me a writ petition and want to get complicated questions of facts and law to be decided in the writ petition. This Court should not, as such, interfere with the order of the licensing authority.
27. It is true that the licensing authority was not required to enter into detailed inquiry. Yet before renewing the licence he had to satisfy himself that the requisite conditions as contemplated by the Act and the Rules were fulfilled. In renewing the licence in this case the licensing authority was swayed away by the directions contained in the G.O. dated 29th March, 1971, which G.O. as held earlier, was ultra vires the Act and the Rules.
28. Besides, as indicated earlier, the respondents have not been able to establish that the lease was extended for a period of ten years so as to expire on 30th June, 1975. They have also not been able to produce any material to show that the U. P. (Temporary) Control of Rent and Eviction Act was applicable to the premises in question. The only question for determination in this case was whether the respondents ceased to hold the premises on lease after the service of the notice under Section 106 of the Transfer of Property Act. The answer having been held to be in the affirmative, the licence could not have been renewed in favour of respondent No. 3.
29. Sri Khare next argued that even if the facts alleged in the petition are assumed to be correct, the period of the licence was to expire on 31st March, 1972 (within three or four days) and who knows by the time judgment happens to be delivered the period of licence might have expired. He urged that in the circumstances no useful purpose would be served by issuing the writ asked for. In support of his contention he placed reliance on 'K. N. Guruswami v. State of Mysore', AIR 1954 SC 592 where the Supreme Court refused to issue the writ prayed for on the ground that it would be useless. At page 596, the Supreme Court in that case had observed:
'We would, therefore, in the ordinary course have given the appellant the writ he seeks. But, owing to the time which this matter has taken to reach us (a consequence for which the appellant is in no way to blame, for he has done all he could to have an early hearing), there is barely a fortnight of the contract left to go. We were told that the excise year for this contract 1953-54 expires early in June. A writ would, therefore, be ineffective and as it is not our practice to issue meaningless writs, we must dismiss this appeal and leave the appellant content with an enunciation of the law.'
But in the instant case, besides the prayer for a writ of certiorari, the petitioners have also prayed for the issue of a writ of mandamus directing the licensing authority to decide the petitioners' application for licence independent of the G.O. dated 29th March, 1971 and at least this part of the relief has not become infructuous. I am informed that the petitioners have again applied for the renewal of the licence in their favour. So the writ petition cannot be dismissed on the ground that the period of the licence has expired. Obviously both the parties can try to get the licence renewed in their favour after the expiry of the period of the present licence, so the mandamus sought for by the petitioners can be of avail to them.
30. Sri Khare also contended that the petitioners should have filed an appeal against the order refusing the grant of licence on their application, or they could have gone in revision against the order renewing the licence in favour of respondent No. 3.
31. This argument of Sri Khare was met by Sri Chaudhry by pointing out that no order was passed at all on the petitioners' application for the renewal of licence in their favour. According to Sri Chaudhry, in spite of this definite allegation made in the petition neither the State Government nor the contesting respondents have been able to produce any order passed on the application of the petitioners, and in the absence of any order on their application, the petitioners could not have filed any appeal, and no revision or appeal lies against the grant or renewal of licence, so the petitioners could not have filed any revision or appeal against the order renewing the licence in favour of respondent No. 3.
32. In my opinion no revision could be filed against the order of the State Government, and even if it could have been filed, there was no scope for success, as the State Government could not go against its own directions issued under G.O. dated 29th March, 1971. So, even if any alternative remedy is supposed to have been available to the petitioners, it was not adequate. This writ petition cannot, therefore, be dismissed on the ground of an alternate remedy.
33. In Writ Pern. No. 4580 of 1969 (Ram Agya Singh v. State of U. P., decided on 5-2-1971 (All.) by G. C. Mathur, J.) also similar objections were raised, yet this Court chose to decide the writ on merits and did not dismiss it on the ground that the period of licence had expired.
34. In view of the foregoing discussion the writ petition must succeed. It is accordingly allowed with costs, the G.O. dated 29th March, 1971 (filed as Annexure 5 to the petition), the licence renewed by respondent No. 2 in favour of respondent No. 3, and the order renewing the licence in favour of respondent No. 3 are quashed, and a writ of mandamus directing the licensing authority (respondent No. 2) to decide the application of the petitioners for the issue of licence in their favour independent of the G.O. dated 29th March, 1971 (filed as Annexure 5 to the writ petition) is issued.