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Nagar Mahapalika Vs. A.V. Dubey - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1978CriLJ1467
AppellantNagar Mahapalika
RespondentA.V. Dubey
Excerpt:
- - (1) the licensing authority may at its discretion revoke or suspend the licence granted to any cinema within it a jurisdiction if it is satisfied: municipalities act, as well as section 577 of the nagar mahapalika adhiniyam 1955 have no applicability to the facts as mentioned in the complaint, 11. section 298 of the u. , offensive trades, public safety and convenience, and miscellaneous items.ordermohd. hamid hussain, j.1. these are 13 connected appeals filed by the nagar mahapalika, varanasi, against the order of the magistrate dated 15-5-1973 dismissing the complaints filed by the nagar mahapalika, varanasi, against the managers of the 13 cinema houses in varanasi, under sections 298 and 299 of the u. p. municipalities act, 1916 and section 577 of the u. p. nagar mahapalika adhiniyam, 1959 as not maintainable and discharging the opposite parties.2. in all the aforesaid 13 cases giving rise to these 13 appeals the complaint by the nagar mahapalika, varanasi was that the cinema houses run by the opposite parties were producing loud sound by using sound amplifying instruments and other electrical gadgets without obtaining the permission of the nagar mahapalika. against this.....
Judgment:
ORDER

Mohd. Hamid Hussain, J.

1. These are 13 connected appeals filed by the Nagar Mahapalika, Varanasi, against the order of the Magistrate dated 15-5-1973 dismissing the complaints filed by the Nagar Mahapalika, Varanasi, against the Managers of the 13 cinema houses in Varanasi, under Sections 298 and 299 of the U. P. Municipalities Act, 1916 and Section 577 of the U. P. Nagar Mahapalika Adhiniyam, 1959 as not maintainable and discharging the opposite parties.

2. In all the aforesaid 13 cases giving rise to these 13 appeals the complaint by the Nagar Mahapalika, Varanasi was that the cinema houses run by the opposite parties were producing loud sound by using sound amplifying instruments and other electrical gadgets without obtaining the permission of the Nagar Mahapalika. Against this complaint preliminary objections were raised by the respective operators of the aforesaid 13 cinema houses to the effect that they were exhibiting the cinema films inside the auditorium after having obtained the necessary licence which was valid and that the Nagar Mahapalika had no authority of law to demand any fee for the use of the loudspeakers inside the auditorium of the cinema houses. In reply to the preliminary objection of the opposite parties it was contended on behalf of the Nagar Mahapalika that under the bye-laws framed under the U.P. Nagar Mahapalika Adhiniyam the Nagar Mahapalika was entitled to demand fees from the cinema operators. The trial Magistrate on a consideration of the preliminary objection and the reply given to the said objection by the Nagar Mahapalika held that the Nagar Mahapalika was not entitled to levy any fee on the cinema shows and accordingly the complaints were not maintainable. The complaints were therefore dismissed and the opposite parties were discharged. Against the aforesaid order of the Magistrate passed in the 13 cases the aforesaid 13 appeals were filed in this Court under Section 417(3) of the Cr. P.C.

3. At the hearing of these appeals a preliminary objection has been taken by Sri T. P. Asthana, learned Counsel for two of the respondents in the Appeals Nos. 2249 and 2392 of 1973 that no appeal could lie against the order of discharge passed by the Magistrate and therefore the present appeals were incompetent. The cases giving rise to these 13 appeals were initiated in 1971 and therefore these cases would be covered by the provisions as contained in the old Criminal P. C. 1898 and before the new Criminal P. C., 1973 came into operation. Section 417 of the old Code provided for appeals against orders of acquittal passed by any Court and did not envisage orders of discharge passed by any court. Therefore, the preliminary objection of the learned Counsel Sri. T. P. Asthana is sustained and I hold that the aforesaid 13 appeals are not maintainable. However, since leave had been granted by this Court to file appeal against the order of discharge on some misapprehension it is expedient in the interest of justice to convert these appeals into revisions, and dispose them of in accordance with law.

4. For a proper appreciation of the reasoning of the learned Magistrate who dismissed the complaints and discharged the opposite parties it is necessary to state that the Cinematograph Act 1918 provides with certain conditions. Penalty is also provided for contravention of the conditions of the licence. In order to implement the provisions of the Cinematograph Act the Central Government was empowered to frame rules. The State Govt. was also authorised under the U. P. Cinema (Regulation) Act, 1955 to control the cinematograph exhibitions by issuing licences. The District Magistrate was authorised to issue such licences. In the event of contravention penalty was also provided under Section 8 of the U. P. Cinema (Regulation) Act 1965, Section 12 of this Act relates to repeal of the Act of 1918 to a certain extent. Section 12 is as under:

(1) The Cinematograph Act 1918 in so far as it relates to the matters other than the sanctioning of cinematograph films for exhibition, is hereby repealed in its application to the State of Uttar Pradesh.

(2) Any rule or order made under the Cinematograph Act, 1918 (Act 11 of 1918) and in force immediately before the commencement of this Act, shall continue in force and be deemed to be rule or order made, under this Act; and all appointments made, licences granted, conditions or restrictions imposed and direction issued under any such rule or order and in force immediately before such commencement, shall likewise continue in force and be deemed to be made, granted, imposed or issued in pursuance of this Act.

5. Section 13 of the U. P. Cinema (Regulation) Act, 1955 gives power to the State Government to frame rules for the purposes of carrying the provisions of the Act into effect.

6. The Uttar Pradesh Cinematograph Rules, 1951 have been framed under Section 9 of the Cinematograph Act, 1918 and these Rules have been amended from time to time. Rule 39 of the aforesaid Rules provides for fees for cinematograph licence. Rule 41 provides for control of sound from cinemas. The relevant Rule 41 is to the effect:

When granting or renewing any licence the Licensing Authority may prescribe the distance beyond which sound shall not travel from the cinema. Licensees shall not cause noise outside cinemas by the use of loudspeakers, gramophones, trumpets or drums, etc.

7. Rule 43 provides for revocation or suspension of licence to the following effect:

(1) The Licensing Authority may at its discretion revoke or suspend the licence granted to any cinema within it a jurisdiction if it is satisfied:

(a) That the licensee is responsible for breach of one or more provisions of the Act, or these rules, or any condition of the licence.

(b to (d) ...

(e) That the cinema is used or conducted in a manner prejudicial to the public interest.

Provision is also made for appeal to the State Government by the licensee aggrieved by the order of revocation or suspension of licence.

8. From the above provisions it is thus amply clear that if the operators of cinema houses use trumpets or sound amplifiers outside their cinema houses against the provisions of the licenses issued to them then the proper authority to punish the licensees responsible for the breach of Rule 41 is the District Magistrate and not the Nagar Mahapalika.

9. The complaint filed in all the 13 cases is to the effect:

It has been made known that the opposite party has been producing loud noise while running cinemas with the aid of loud speakers and other appliances operated by electrical and mechanical process, which being without the permission the competent authority of Mahapalika is punishable in law.

The relevant extract of the complaint is as under:

Gyant hua hai ki prativadi bina anu-mit dhawine bistarak yantra tatha anya upkaranon duara vidyut any mechanical prakriya duara taz dhawine cinema ke sanchalan men paida kiya jata hai. Jo vidhyut Mahapalika ke sadam pradhi-kari duara agya na lene ke karan dand-niyay apradh hai.

In this complaint lodged by the U. P. Nagar Adhikari the witnesses are Harish Narain Pandey, Inspector, and several others. No names of the public witnesses have been given.

10. A perusal of the aforesaid complaint shows that the grievance of the Nagar Mahapalika is that the operators of the cinema houses are using amplifiers for exhibition of their films without obtaining a licence. This has been assailed by the opposite parties who have asserted that they hold a valid licence from the Licensing Authority to run the cinema houses, and for any contravention of exhibiting films without the requisite licence the proper authority to agitate is the District Magistrate and not the Nagar Mahapalika. Sections 298 and 299 of the U. P. Municipalities Act, as well as Section 577 of the Nagar Mahapalika Adhiniyam 1955 have no applicability to the facts as mentioned in the complaint,

11. Section 298 of the U. P. Municipalities Act is with respect to the power of the Board to make bye-laws in respect of certain matters such as building, drains, privies, cess pools etc. extinction of fire scavenging, streets, markets, slaughter-houses, sale of food, etc., offensive trades, public safety and convenience, and miscellaneous items. Under the miscellaneous head several items are given, and Clause (a) is with respect to-

Prohibiting or regulating any act which occasions or is likely to occasion, a public nuisance for the prohibition or regulation of which no provision is made elsewhere by or under this Act.' A reading of the complaint shows that the grievance of the Nagar Mahapalika is that the cinema operators are using loudspeakers for exhibiting their films. In the list of witnesses besides the Inspector, it is mentioned 'and several others.' Presumably 'several others' mean members of the public to whom those loudspeakers used by the operators of the cinema houses cause nuisance. Assuming that the loud-speakers are Jcausing nuisance, then the proper authority is the Licensing Authority to control the operators not to use their loudspeakers in a manner which is prejudicial to the public interest or may become a public nuisance. The complaint of the Nagar Mahapalika purported to be under Sections 298 and 299 of the U. P. Municipalities Act and Section 577 of the U.P. Nagar Mahapalika Adhiniyam was misconceived and therefore was not maintainable and has been rightly dismissed by the Magistrate. The impugned order of the Magistrate dismissing the complaints and discharging the opposite parties does not suffer from any illegality requiring interference by this Court.

12. The aforesaid thirteen appeals, which are being treated as revisions, are accordingly dismissed.


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