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Govind Ram Sharma Vs. State of Uttar Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberWrit Petn. Nos. 66, 72, 73, 77 to 81 and 87 of 1960
Judge
Reported inAIR1961All600
ActsUttar Pradesh Cinemas Regulation Act, 1955 - Sections 3, 5, 5(2), 6, 7 and 13; Constituiton of India - Articles 14, 19, 19(1) and 19(6)
AppellantGovind Ram Sharma
RespondentState of Uttar Pradesh and anr.
Appellant AdvocateB.K. Dhaon and ;R.P. Srivastava, Advs.
Respondent AdvocateStanding Counsel
DispositionPetition dismissed
Excerpt:
(i) constitution - applicability of u. p. cinemas regulation act - preamble of u.p. cinemas regulation act, 1955 - act has two objects - first licensing of place where cinematograph exhibition can be held - second education, health etc of the community making use of them - preamble of the act is not restrictive but is wide. (ii) scope of section 5(2) - section 5(2) of u.p. cinemas regulation act, 1955 - failure to make rule under section 13 does not effect power of the licensing authority to impose condition under section 5(2). - - he is further impugning them by pointing out thatsub-section (2) of section 5 failed to authorise the licensing authority or the state government to impose the same. sub-sections (1) and (2) of section 5 are thus :5(1) the licensing authority.....orderj.k. tandon, j.1. this petition and eight other petitions nos. 72, 73 and 77 to 81 and 87, all of 1960 are directed against the following order, passed by the additional district magistrate, lucknow, ordering thereby to include certain additional conditions-in the licences for cinematograph exhibitions which have been granted to the various petitioners:-'the following additional conditions have been imposed in the cinematograph licence by the government. the local exhibitors are hereby directed to comply with them strictly with effecth from april 1, 1960: (1) that not more than three shows should be held between 3 p. m. and 12-30 a. m. on any working day. no show to be held before 31 p. m. or after 12-30 a. m. without the specific permissionof the licensing authority to be taken in.....
Judgment:
ORDER

J.K. Tandon, J.

1. This petition and eight other petitions Nos. 72, 73 and 77 to 81 and 87, all of 1960 are directed against the following order, passed by the Additional District Magistrate, Lucknow, ordering thereby to include certain additional conditions-in the licences for cinematograph exhibitions which have been granted to the various petitioners:-

'The following additional conditions have been imposed in the Cinematograph Licence by the Government. The local exhibitors are hereby directed to comply with them strictly with effecth from April 1, 1960:

(1) That not more than three shows should be held between 3 p. m. and 12-30 a. m. on any working day. No show to be held before 31 p. m. or after 12-30 a. m. without the specific permissionof the Licensing Authority to be taken in advance.

(2) There should be no restriction on the number of shows held cm Sundays and holidays provided that the last show does not extend beyond 12-30 a. m.

(3) No person below 18 years of age should be allowed admission in cinema shows held at any time before 4 p. m. on working days. (This restriction shall not apply on holidays. Holidays would mean holidays including vacations observed by educational institutions),

(4) In the late night shows, juveniles below 14 years of age should not be allowed admission unless they are accompanied by their guardians.'

All the petitioners happen to be cinematograph ex-hibitors at Lucknow. The order has been made --a fact about which there is no dispute -- in pursuance of the direction referred to therein issued by the State Government in the purported exercise of the power vested under Sub-section (2) of Section 5 of the U.P. Cinemas (Regulation) Act, 1955 (U. P. Act No. III of 1956).

2. Two consequences have followed by the ad-dition of the above conditions in the licences. Ac-cording to one no person below the age of eighteen years can be admitted on a working day to a show before 4 P. m.; this restriction will not be applicable on holidays. According to the other, juveniles below 14 years of age will not be allowed admission in the late night shows unless they are ac-companied by their guardians. Some minor restrictions also are as regards the number of shows which may be given on any working day and also that no show shall continue beyond 12-30 a. m. in the night.

3. The petitioner claims that the restrictionscontained in the above conditions are per se unreasonable; they are not in the interest of the general public also. He is accordingly attacking theirvalidity on the ground that they infringe the fundamental right guaranteed to him by Sub-clause (g) of Clause (1) of Article 19 of the Constitution. He is further impugning them by pointing out thatSub-section (2) of Section 5 failed to authorise the licensing authority or the State Government to impose the same. He is, therefore, asking the order of the licensing authority, by which the said conditions have been added in His licence to be quashed. He is further attacking them because in his opinion they contravened Article 14 of the Constitution.

4. It will be worthwhile to refer at the very outset to certain provisions of the U. P. Cinemas (Regulation) Act, 1955 (hereinafter referred to in this judgment as the State Act). This was enacted by the State Legislature in 1955 and became applicable to the State on the 23rd of January, 1956. The provisions of the Cinematograph Act, 1918 (hereinafter referred to as the Central Act) which was the existing law till that date were repealed by Section 12 of this Act in so far as they related to matters other than the sanctioning of the cinematograph films for exhibition. Since the controversy here is not upon a matter relating to the sanction of cinematograph films exhibition the Central Act has no application but it shall have to be determined according to the provisions o the State Act.

5. The Preamble of the State Act is in these words :-

'Whereas it is expedient to make provision for regulating exhibitions by means of cinematographs in the State of Uttar Pradesh;

It is hereby enacted as follows.'

6. Section 1 then contains the short title, extent and commencement of the Act and Section 2 gives the definitions of the several terms held necessary to be defined. Section 3 thereafter says that save as otherwise provided in the Act, 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 conditions and restrictions imposed by the licence. The Section following, i. e., Section 4 describes the licensing authority and then comes the important provision in Section 5 relating to grant of licence and the conditions, etc., which might be incorporated in it. Sub-sections (1) and (2) of Section 5 are thus :-

'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 fees as may be Prescribed.'

Sub-section (3) is not material in the instant case, but Sub-section (4) which is relevant is to the effect that

'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 -

(i) scientific films,

(ii) films intended for educational purposes,

(iii) films dealing with news and current events,

(iv) 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.'

Another relevant provision is to be found in Section 6 which gives power to the State Government to suspend by order the exhibition of any film the exhibition of which is likely to cause a breach of the peace. By Sub-section (3) of Section 6 an order of suspension so made can be in force for a period of two months. And under Section 7 a licence can be suspended, Cancelled or revoked at any time, on the ground also, among others, that the continuance of the licence is considered prejudicial to decency or morality having regard to any changes occurring in the situation of the place licensed. The next provision to which reference is necessaryis in Section 13 which confers power on the State Government, after previous Publication, to make rules for the purpose of carrying the provisions of the Act into effect, and by virtue of Clause (d) at Sub-section (2) the rules may provide for the terms, conditions and restrictions subject to which licences can be granted.

7. An aspect of these provisions which deserve to be noticed is that the Act does not make provision for the licensing of places alone where cinematograph films may be exhibited. The Preamble is evidently not so restricted but is wider and will include within its ambit provision for regulation of exhibition of films by means of cinematograph. Section 3 also while making provision that exhibitions by means of cinematograph shall not be given except in a place licensed under the Act similarly contemplates that the exhibitions will further comply with any conditions and restrictions which the licence should impose.

Under Sub-section (1) of Section 5 the licensing authority is not permitted to grant a licence unless the pre-requisites given in Clauses (a) and (b) have been satisfied. And under Sub-section (2) the licensing authority has been given a wide discretion subject to the control of the State Government under the provisions contained in Sub-section (1) to determine the terms and conditions and restrictions subject to which a licence shall be granted.

By Sub-section (4) the State Government has been given the authority to require the licensees to exhibit particular types of films of scientific, educational and similar utility. A purpose evident from these provisions is that the scheme of licensing is not confined to the using of a place for cinematograph exhibition on grounds of public safety, etc., but factors such as the educational and scientific advancement of the people and their health can also properly be taken into consideration in determining the conditions and restrictions to be included in a licence.

This is in a way supported by the provision in Section 6 also which authorises the State Government in certain cases to suspend the exhibition of films temporarily. Lastly the provision in Clause (c) of Section 7 (1) fully affirmed the above fact underlying the scheme of the State Act, since it authorised the State Government or the licensing authority to suspend, cancel or revoke a licence if the continuance of the same is considered prejudicial to decency or morality.

The Act has thus at least two objects in view, one, the licensing of the place where cinematograph exhibition can be held and, two, the education and health, etc., also of the community making use of them. It is the latter feature which will be of real significance in determining whether the impugned conditions are such as the State Government and, in its turn, the licensing authority is authorised under the Act to include in a licence.

8. A fact which may now be mentioned is that although Section 13 of the State Act has required the State Government to make rules providing for the terms, conditions and restrictions which may be included in a licence, no rule providing for matters embodied in the impugned conditions has been framed. Indeed, the rules which are in force today were framed under the Central Act before its repeal and they are continuing by virtue of the provision in the General Clauses Act. The omission to make a rule incorporating these conditions has been vehemently urged by the petitioner to support his contention that the above conditions were therefore unable to be imposed. But before this argument is considered it will be worthwhile to examine whether these conditions can per se be said to be 'reasonable restrictions', such as can be upheld under Clause (6) of Article 19 of the Constitution.

9. Learned counsel for the State does not dispute that there is the limitation on the power exer-cisable, whether by the State Government or the licensing authority under Section 5 (2) of the Act, that the terms, conditions and restrictions to be determined by them are reasonable. No absolute power to impose any and whatever condition they should desire is vested thereby. The power to impose them is in the context it exists a limited power, the limitation being that the condition, etc., is reasonable with reference to the object of the Act and the regulation contemplated by it.

For judging the reasonableness of the restrictions the purpose and object of the Act will be a very relevant consideration. If the Act is not limited in its scope to the making of provi-sion for licensing of places alone where exhibition by cinematograph can be given but travels beyond and provision can also be made under it tor other matters--those matters have been pointed out earlier -- conditions and restrictions which concern those matters can also be included in the licence.

10. Four restrictions are contemplated in the impugned directions issued by the State Government. The first restriction is that not more than three shows will be held between 3 p.m. and 12.30 a.m. following and that there shall be no show either before or after these hours without the specific permission of the licensing authority. The restriction to the effect that shows shall not commence before 3 p. m. will not be applicable, according to the second condition, on Sundays and holidays.

11. No serious argument has been urged on behalf of the petitioner upon the reasonableness of the limitations placed by these two conditions. The only point really canvassed by the learned counsel is that a fair number of films possessed a length, which ordinarily will make it extremely difficult to have three shows in a day within the limited time from 3 p.m. to 12.30 a.m. There is, however, little force in this contention. Firstly, some time limit is for too evident reasons necessary in the matter of cinematograph exhibitions in cinema houses in the interest of the general public.

The restriction that a show shall not commence earlier than 3 p.m. and not continue beyond 12.30 a.m. in the night is a very fair restriction having regard to the various factors including the problems of traffic, sanitation, public, convenience, safety and law and order and it cannot be seriously urged that the above limits of time are unreasonable or otherwise improper. Further the hoars appointed by them are not rigid and can where necessity is proved be departed from with the previous permission of the licensing authority. In appropriate cases where for some reason relaxation of the time limit becomes necessary the licensing authority has power to relax the condition.

Moreover, on Sundays and holidays when the normal business remains closed and the public are expected to divert their attention on entertainment etc. and not be at their desk, the shows can start even before 3 p.m. The limit that they shall not continue beyond 12,30 a.m. which will he applicable to those days also cannot be said to be unreasonable. Reasons of health, safety and public morality demand that such a limit should be placed. I do not under. the circumstances consider that these conditions arc unreasonable or are otherwise not in the interest of the general public.

12. The other two conditions refer (i) to persons below the age of eighteen years and (ii) to juveniles below the age of fourteen years. By reason of the former a person below eighteen years of age is not to be admitted to a cinema show given at any time before 4 p.m. on any working day but on holidays, including vacations observed by the educational institutions, the said restriction is to be inapplicable. And according to the latter children below the age of fourteen cannot be admitted to a show which will end nearabout 12-30 a.m.

13. In trying to demonstrate the unreasonableness of the above restriction the petitioner's analysis is that the restriction that Persons below the age of eighteen years shall not be admitted to a cinema show starting earlier than 4 p.m. means ultimately that such persons will be compelled from force of circumstances to attend the shows starting from 6.30 p.m. Likewise children upto the age of fourteen years, who usually go to bed at 8.30 or 9 in the evening after their dinner will be deprived of the opportunity to attend even such shows.

It is also said that certain educational institutions, do not allow their wards to go out of school campus on Sundays the consequence of which will be that boys in such schools will be reduced to the necessity of attending a show commencing at 6.30 only, which also in actual practice they will not be able to attend due to the fact that it would clash with their study time. The unreasonableness is said to exist in this manner also, namely, that all boys below the age of eighteen are not taking studies at schools etc. some at least do not do so, but the restriction being general will govern them as well,

If, however, the restriction is at all considered desirable in the case of school going children those who do not go to school are needlessly adversely affected thereby. Yet another circumstance pointed out is that in the summer months the educational institutions observe morning classes while during the winter months children are not required to go to school after 3 p. m. If. therefore, the justification for it is that they should not attend the cinema show during the school hours its necessity does not exist.

14. Cinema houses invariably exist in urban areas and it is usual in such areas that young children attend their schools and other educational institutions during the day time. Even those children who are not pursuing their studies in schools and other similar institutions devote the mornings and the afternoons in receiving education or other training. During periods when school hours are in the forenoon the afternoons are expected to be devoted by them over their studies.

It is not otherwise also healthy, whether physically or mentally, for children during the mornings and the afternoons except when they are under the guidance of their teachers or guardians to spend their time at places of recreation. Development of proper discipline and, therefore, of character of the youth demands that restrictions on their attending places like cinema houses should exist so that they arc not away from their studies when they should be at them. There is to my mind no force in any of the contentions Put forward on behalf of the petitioner against the reasonableness of the above conditions.

Further the restrictions regarding their attending shows commencing before 4 p.m. are inapplicable on holidays and Sundays. No one can doubt that the first duty of a child who has yet to learn and develop his self is to devote himself to his studies etc. on working days. The school hours usually continue upto 3.30 p.m. The restriction against children attending shows commencing before 4 p.m. may under the circumstances be very desirable for the reason too that they do not absent themselves from their studies during the school hours. Apparently, the relaxation of the condition on Sundays and holidays is in the above background.

15. Also, children below the age of 14 years require a greater vigilance. Their health, proper upbringing and education demand that they should not be permitted to remain away from their homes at late hours of night. There is no strength in the contention too that because children are denied the facility of attending certain cinema shows on working days they have been deprived opportunity of such education as is imparted by cinematograph exhibitions. By restricting their attendance at cinematograph exhibitions they have only been asked to be so at convenient hours in their own interest and for reasons of thcir health and the safely of the community at large.

16. It appeared also that before making the order requiring the impugned conditions to be included in the licences the State Government had' appointed a Committee to go into the question particularly with reference to the interest of young children including students. The Committee made certain recommendations in pursuance whereof the Government decided to regulate the entry of young children at the shows in the manner provided in the four conditions imposed by it.

17. The petitioner in inviting referenc e to the case of Theatre De Luxe (Halifax), Ltd. v. Gledhill, (1915) 2 KB 49 contended that the above conditions were ultra vires and also unreasonable. This was a case under the Cinematograph Act 1909 (9 Edw. 7, c. 30) where a condi-tion to the effect that children under fourteen years of age shall not be allowed, to enter into or be in the licensed premises after the hour of 9 p.m. unaccompanied by a parent or guardian was held to be ultra vires by a majority judgment.

The above decision, however, was based onvery different considerations. Indeed, the learned Judges had not pronounced against the reasonableness of the restriction, on the other hand, Lush and Rowlatt, JJ. held it to be ultra vires as they also found that it had no connection with the subject matter of the licence, viz. 'the use of the premises for the giving of cinematograph exhibitions'. They pointed out that that condition was imposed on the ground of health and welfare of young children which was beyond the subject matter of the Cinematograph Act, 1909.

They further held that the said Act regulated the use alone of the premises for the giving of cinematograph exhibitions and the restriction had no direct connection with the above object. The third learned Judge, Atkin, J., expressing a con-trary view held that the Power of the licensing authority to impose conditions has to be judged upon the reasonableness and the public interest also served by them.

18. It was pointed out by me earlier in the instant case that the object and subject matter of the State Act was not limited to the licensing of places of exhibition alone; it also included matters extending into the field of health, safety and education, too, of the community. The Present case, therefore, vitally differed from the Theatre De Luxe's case, (1915) 2 KB 49. Sub-section (2) of Section 5 gives power to the licensing authority to determine the terms and conditions and other restrictions subject to which a licence has to be granted. In doing so it has to take into consideration the interest of the general public.

The provision in Sub-section (4) of Section 5 and again in Sub-section (1) of Section 6 and lastly in Clause (c) of Sub-section (1) of Section 7 place beyond controversy that the exercise of the discretion vested in the licensing authority by Sub-section (2) of Section 5 has also to keep before it the matters referred to in the above Sub-sections. I am unable to agree with the learned counsel that the above case helped his contention; indeed it, on the other hand, helped to show that the impugned conditions are not only reasonable but further that they are within the framework of the provisions contained in the State Act.

19. While discussing the scope of the authority given by Sub-section (2) of Section 5 to the State Government in the matter of requiring terms and conditions to be imposed in a licence, the absence of rule making provision for the imposition of impugned conditions was very keenly urged on behalf of the petitioner. The reasoning presented is that Section 13 contemplates that the rules shall provide for the terms, conditions and restrictions subject to which a licence may be granted. If, however, a Particular term, condition or restriction has not been provided in any rule, the argument is that neither the licensing authority nor the State Government will be empowered to include at in the licence.

That is the power of the State Government and likewise of the licensing authority is circumscribed within the conditions etc. provided for in the rules made under Section 13. The second contention is that the Legislature has, in providing in Section 13 for the making of rules after previous publicaiton -- which in view of Section 23 of the U. P. General Clauses Act, 1904, means that a draft of the rules is first published for inviting objections -- required a specified procedure to be followed for determining the conditions able to be imposed in a licence. Since it is admitted that the conditions directed to be included by the State Government were not published for inviting objections Previously, the argument also is that they failed to possess a status which would entitle them to be included as terms, conditions and restrictions, in a licence.

20. Section 13 has undoubtedly conferred power on the State Government to make rules for the purpose of carrying the provisions of the Act into effect. The section also requires that the rules, which may be framed, will provide for the terms, conditions and restrictions subject to which a licence can be granted. The question, however, is how far the failure on the part of the State Government to make such rules has affected the power of the licensing authority, or of the State Government itself to act in that direction under Sub-section (2) of Section 5. This Sub-section while speaking about the terms, conditions and restrictions subject to which a licence may be granted has not referred to them, i.e. the terms, conditions and restrictions, as those only which have been prescribed by rules made under the Act. On the other hand, it has referred to them in general terms which, on the language of the sub-section, can appropriately mean both those as have been prescribed and others which have not been prescribed, the limitation merely being that they are in the interest of the general public and are subject to the provisions of Sub-section (1) and to the control of the State Government and further that they have been determined by it for inclusion.

If the Legislature had intended that only such terms, conditions and restrictions will be determined for the purpose by the licensing authority as already find place in the rules framed under the Act it was free so to declare. This fact apart, a contrary intention is, to my mind, evident in the sub-section which while providing that the terms, conditions and restrictions shall be such as are determined by the licensing authority has required that the fees to be charged in respect of the licence will be such as happened to be prescribed by the rules. So far, therefore, as Sub-section (2) exists it does not limit down the power of the licensing authority to include in the licence such conditions only as might have been prescribed by rules made under Section 13.

21. Section 13 as well does not in turn curtail the power belonging to the licensing authority under Sub-section (2) of Section 5 to the terms, condilions and restrictions provided for under its provisions. None of the two sections has thus placed any limitation on the power of the State Govern-ment or of the licensing authority that it will in the matter of determining conditions etc. be con-fined to provision existing in the rules framed under the Act.

The absence of rules cannot, therefore, affect the power, if it otherwise belongs to them under Sub-section (2) of Section 5, to be exercised by them. An effect of Section 13 can only be that where rules have been framed providing the terms, conditions and restrictions subject to which a licence may be granted, the authorities named in Sub-section (2) of Section 5 shall, while acting under the latter, have regard to them. Their jurisdiction to exercise any particular power if otherwise belonging to them under Sub-section (2) of Section 5, is not taken away by the absence of rules,

22. After the finding that the absence of any rule providing for the matters included in the impugned conditions has not affected the Power of the State Government or the licensing authority which belonged to them under Sub-section (2) of Section 5 the second contention is rendered of no effect. It is true that if any rule has to be framed under Section 3 it can be done after previous publication. The purpose also o previous publication can be said to be that the persons affected are allowed an opportunity to object etc.

But unless it can be shown that any terms, conditions and restrictions, which are determined by - the licensing authority for inclusion, are also required to be published for objections the analogy of previous publication attached to the rules cannot be imported into them. As no such condition exists independently in Sub-section (2) of Section 5, the action of the licensing authority cannot be challenged on that ground,

23. Some of the objections having been thus disposed of the scope of the power vested in the State Government under Sub-section (2) of Section 5 has now to be considered. The sub-section authorises the State Government to exercise control over the licensing authority in the matter of granting licences. The petitioners claim, firstly, that in the absence of any rules or other guidance contained in the sub-section itself the power given to the State Government is rendered too vague and arbitrary; as such it is discretionary in nature and, therefore, void under Article 14 of the Constitution.

The second contention is that the control itself cannot be exercised beyond what has been provided by the rules or by something in the Act itself. The two arguments are essentially to the same effect, viz. whether it can be said that the power of the State Government to exercise control over the licensing authority is undefined, therefore, arbitrary and discretionary. Being a power to exercise control over the action of licensing authority, where therefore the licensing authority itself has to determine terms, conditions and restrictions with due regard to the interest of the general public, it will not be correct to say that the State Government's power is arbitrary or unregulated,

The Control to be exercised by it will, indeed, have regard to all those matters etc. which will regulate the discretion of the licensing authority in determining the conditions etc. There can be no doubt that the State Government can require terms and conditions which it should consider necessary to be incorporated by the licensing authority in a licence but its discretion in that direction is circumscribed by all those conditions etc. which govern the licensing authority itseif in determining them.

In this background it will not be correct to say that the control given to the State Government by Sub-section (2) of Section 5 is arbitrary or undefined. The absence of a rule incorporating the particular terms or conditions required by the State Government to be included in a licence should not affect its power to so require if the licensing authority itself will not be debarred from determining those terms or conditions in the interest of the general public.

24. As was pointed out earlier the impugned conditions etc. are in the interest of the general public, they are not unreasonable also. The State Government, therefore, possessed the power to require the licensing authority to add them in the licence. I do not think the petitioner can Succeed in his contention also that these additional conditions have been imposed by the State Government on the licensing authority and the latter has not determined them in its independent discretion, While it may be true that these conditions have been directed and included at the instance of the State Government, but this was open to the latter in exercise of its Power of control. That power authorised it to require the licensing authority to incorporate them, the latter was also bound to give effect to the direction.

25. It follows from the foregoing discussion that the State Government was within its powers in issuing Government Order No. 766-A/III-44-1/1958, dated the 3rd March, 1960; also that the restrictions required therein are reasonable restric-tions and further that the power given to the State Government and to the licensing authority under Sub-section (2) of Section 5 of the State Act is not discriminatory. The petitioner, therefore, is not entitled to the relief asked.

26. The petition is accordingly dismissed with costs. The stay order is discharged.

27. This order will govern the eight otherconnected petitions mentioned above.


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