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K.V.S. Iyer and anr. Vs. the State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKerala High Court
Decided On
Case NumberO.P. No. 3571 of 1973
Judge
Reported inAIR1975Ker21
ActsConstitution of India - Articles 19(1) and 226; Kerala Cinemas (Regulation) Act, 1958 - Sections 5, 5(1) and 12
AppellantK.V.S. Iyer and anr.
RespondentThe State of Kerala and ors.
Appellant Advocate K.S. Rajamony,; S. Parameswaran and; A. Shahul, Advs
Respondent Advocate Joseph Augustine and; C.K. Sivasankara Panicker, Advs.
DispositionPetition dismissed
Cases ReferredSubramoniam v. Sreeniva
Excerpt:
.....be favoured, wherever possible. the main theme of the representation in this regard is that the existing theatres are 'more than adequate for serving the entertainment needs of the local population',the poor attendance in the existing theatres' and the 'poor collection'.the arguments advanced before me centred round these facts alone. p-8 took into consideration the fact that the representations of existing operators are likely to be biased on account of rivalry, that the loss sustained by the existing operators can be due to various other reasons, that there are no prescribed norms and accepted principles to determine the adequacy of existing theatres, and that the panchayat records reveal that it had applied its mind and satisfied itself regarding the requirements of section 5(1)...........raised the question of adequacy. the main theme of the representation in this regard is that the existing theatres are 'more than adequate for serving the entertainment needs of the local population', 'the poor attendance in the existing theatres' and the 'poor collection'. the arguments advanced before me centred round these facts alone. in other words, the arguments raised were on the basis of the financial or economic viability of the existing theatres commercially. this found favour with the 4th respondent who on the basis of 'd.c.rs' (daily collection reports) of the existing theatres came to the conclusion that 'the scope for a third theatre at ettumanoor is very little' and that, therefore the 'two theatres more than adequately cater to the need of the public'. (since.....
Judgment:

George Vadakkel, J.

1. Two cinematograph operators, running two theatres (one of them a permanent theatre and the other a temporary one) in Ettumanoor Panchayat area, unhappy over the decision to issue a 3rd licence granting permission to the 5th respondent to operate cinematograph exhibitions in S. No. 221/1 A.B. of the Ettumanoor Village are before me challenging the said decision. This decision was taken by the Ettumanoor Pan-chayat, the 3rd respondent, as per its resolution, Ext. P-6, dated 30-3-1973 which was upheld in revision by the 2nd respondent, District Collector, as per his proceedings, Ext. P-7 dated 13-6-1973 and on further revision, by the 1st respondent, State, as per their order Ext. P-8 dated 12-10-1973. Earlier by Ext. P-4 proceedings dated 13-10-1972 the 4th respondent, the Executive Officer, had refused to grant permission sought for by the 5th respondent. This was reversed by the 3rd respondent Panchayat as per its resolution, Ext. P-5, dated 26-11-1972. It appears that the petitioners before me took up the matter in revision before the 2nd respondent, and that he remanded the matter to the 3rd respondent by order dated 7-3-1973. Ext. P-6 is the resolution passed after the remand.

2. The main point urged by the petitioners' learned counsel is Ext. P-6 does not give any reason for the decision and that the reasons were given by the resolution dated 24-4-1973 which was communicated to the Revisional Authority, the 2nd respondent, on 25-4-1973. In the counter-affidavit filed by the 5th respondent it is stated that he, after Ext. P-6 resolution was passed on 2-4-1973 and on 13-4-1973 requested the Panchayat to write a speaking order, and that by the resolution dated 24-4-1973 the 3rd respondent had only decided to incorporate the reasons which weighed with them in the decision they had taken earlier. The 4th respondent. Executive Officer, has sworn a counter-affidavit on behalf of himself and the 3rd respondent, Panchayat wherein it is stated, that Ext. P-6 resolution was passed after a consideration of all the necessary factors, and that when the 5th respondent brought to the notice of the Panchayat, the fact that the reasons which weighed with the Panchayat were not given in Ext. P-6, it was remedied by passing another resolution on 24-4-1973. Copy of this resolution of 24th April, 1973 is Ext. R-5 (2) produced by the 5th respondent along with his additional counter-affidavit. The complaint of the petitioners is that they had no notice of the meeting of the Panchayat held on 24-4-1973 when Ext. R-5 (2) resolution was passed. It is on that basis that Ext. P-6 is attacked. It is the petitioners' case that the reasons given in Ext. R-5 (2) should, on that account be discarded. The further argument is that the Revisional Authorities were called upon to decide only the legality of Ext. P-6 resolution, and that being not a speaking order, those authorities, respondents 1 and 2 committed an error in exercise of jurisdiction in confirming Ext. P-6 resolution. However, there was no case before me, (and possibly there could be none in view of the wide language of Section 5(8) and Section 12 of the Kerala Cinemas (Regulation) Act, 1958, for short, the Act) that the Revisional Authorities, respondents 1 and 2, exceeded or failed to exercise their jurisdiction in passing Exts. P-7 and P-8 orders, or that they were incompetent to make those orders. It may also be observed that it was the petitioners who invoked the revisional juris diction, and that having invoked that jurisdiction, which on the language of the provisions is not in any way circumscribed, the petitioners are not entitled to question the way or the manner, in which it was exercised, in proceedings under Article 226 of the Constitution, unless it be on the ground that all the authorities, original, appellate and revisional, failed to consider the relevant factors required to be considered under the statute. My first endeavour, therefore shall be, to examine whether in Ext. P-8 order of the 1st respondent has adverted to the relevant considerations, or whether they had been carried away by irrelevant materials.

3. Section 5 of the Act dealing with the restrictions on the powers of the licencing authority consists of two parts. Sub-section (2) of that section forbids grant of licence unless the authority is satisfied that conditions prescribed in Clauses (a) and (b) of that sub-section are fulfilled. The proviso to that section requires that before refusal the authority shall give the applicant an opportunity to show cause against refusal. Sub-section (2), standing by itself, therefore, recognises the right of every applicant, who satisfies the conditions specified in Clauses (a) and (b) thereof, to obtain a licence.

The main question is whether this right is further cut down by Sub-section (1) of Section 5 which specifies the matters the licencing authority shall have regard to, and if so, to what extent. In Krishan Kumar v. State of Jammu and Kashmir, (AIR 1967 SC 1368) the Supreme Court said :

'A combined reading of Clauses (1) and (6) of Article 19 makes it clear that a citizen has a fundamental right to carry on any trade or business, and the State can make a law imposing reasonable restrictions on the said right in the interests of the general public. It is, therefore, obvious that unless dealing in liquor is not trade or business, a citizen has a fundamental right to deal in that commodity.' In other words in India the grant of a licence to carry on a trade or business is not a conferment of a privilege by the State; and refusal of licence in that respect is not a denial of a privilege, but denial of a fundamental right guaranteed by the Constitution. With reference to Section 5(1) of the Act, my learned brother Poti, J. in Subramoniam v. Sreeniva-san, 1971 Ker LT 699 = (AIR 1972 Ker 58) said as follows : 'These are apparently restrictions intended in the interest of the general public. These restrictions act as restrictions on the exercise of the fundamental right of the exhibitor. They do not confer a right on any other member of the public other than the general right as one of the public to object to the grant. It cannot be said that under the law of the land one exhibitor, could have a grievance if another starts similar business. In fact both have the fundamental right to carry on their business. By reason of the regulation by Act 32 of 1958 no personal right is obtained by the plaintiff.'

I am in respectful agreement with what is stated above. The fact, that in Subra-moniam's case, the rival exhibitor approached the court by filing a civil suit does not in any manner, make any difference, for the learned Judge, in the above extracted passage was considering the question whether Section 5(1) of the Act confers any personal right on a rival exhibitor.

4. Under Clause (f) of Section 5(1) the licencing authority shall take into consideration any representations made by persons already giving cinematograph exhibitions in or near the proposed locality. This right of representation, and the right to take up the matter in appeal and revision, as, with respect, correctly pointed out in Subramoniam's case, 1971 Ker LT 699 = (AIR 1972 Ker 58) are rights to be exercised only with the ultimate view that the grant of licence is to be in the interests of general public'. If the provision is interpreted otherwise, it will be violative of Article 19(1)(g) of the Constitution. It is a well settled principle that a statutory interpretation which will sustain the constitutional validity of the provisions should be favoured, wherever possible. Clause (d) of Section 5(1) requires that the licencing authority shall have regard to the adequacy of the existing places of cinematograph exhibitions. This, he is bound to consider even independent of any representations by the existing operators in that regard. But, however, the existing operators often lean heavily on this clause, and raise objections to the grant of an additional licence relying on that provision. This is what happened in this case also. Exts. P-2 and P-3 are copies of the representations preferred by the petitioners. Apart from the objections on the basis of non-compliance of the provisions of the Act and the rules which are matters coming under Sub-section (2) of Section 5, Exts. P-2 and P-3 raised the question of adequacy. The main theme of the representation in this regard is that the existing theatres are 'more than adequate for serving the entertainment needs of the local population', 'the poor attendance in the existing theatres' and the 'poor collection'. The arguments advanced before me centred round these facts alone. In other words, the arguments raised were on the basis of the financial or economic viability of the existing theatres commercially. This found favour with the 4th respondent who on the basis of 'D.C.Rs' (Daily Collection Reports) of the existing theatres came to the conclusion that 'the scope for a third theatre at Ettumanoor is very little' and that, therefore the 'two theatres more than adequately cater to the need of the public'. (Since Sub-section (2) of Section 5. fulfilment of the conditions prescribed whereunder are mandatory, by the proviso thereto requires the licencing authority to issue a pre-refusal notice inviting the applicant to show cause against the proposed refusal, it appears to me, that it was incumbent upon that authority to issue such a notice before refusal of licence on the basis of any of the matters enumerated in Sub-section (1). In any case, fairplay requires such a notice. Ext. P-4 does not speak of any such notice.)

5. I am afraid the approach made by the 4th respondent is not, and that made by the 1st respondent in Ext. P-8 is in tune with the legal rights of the parties. The first respondent in Ext. P-8 took into consideration the fact that the representations of existing operators are likely to be biased on account of rivalry, that the loss sustained by the existing operators can be due to various other reasons, that there are no prescribed norms and accepted principles to determine the adequacy of existing theatres, and that the Panchayat records reveal that it had applied its mind and satisfied itself regarding the requirements of Section 5(1). The 4th respondent, who has sworn the counter-affidavit on his own behalf and on behalf of the 3rd respon-dent-Panchayat states that Ext. P-6 resolution was passed after consideration of all the necessary facts. It may also be observed that the 2nd petitioner's objection is that when her temporary theatre is converted into a permanent theatre which has been sanctioned, the two theatres will be more than adequate to meet the need of the public. Regarding adequacy of theatres, it may be noted that. (I may profitably borrow the language of Govindan Nair J. (as he then was) I employed, in another context, though) : 'cinematograph exhibitors are those that provide perhaps the most popular form of entertainment for the masses in the State; not only the most popular but perhaps the only available entertainment'. (See judgment in O. P. Nos. 3012, etc. of 1969). In view of the above I am of the opinion that Ext. P-8 order is not liable to be interfered with in exercise of the extraordinary jurisdiction under Article 226 of the Constitution.

6. In the light of the conclusion arrived at above, it is not necessary to examine the question whether Ext. P-5 resolution is vitiated on the ground that it is not a speaking order. It is also not necessary to consider the contention raised by Mr. Parameswara Panicker, that a Panchayat can speak only through resolutions, and that reasons for the resolutions are to be looked for elsewhere, as for example, in the minutes of the meeting, or the extreme contention raised by him that in the absence of any provision in the statute to that effect no authority need give the reasons in the order itself. Nor is it necessary to consider Ext. P-7 order of the 2nd respondent. However, a word in passing about the observations made by him on the basis of surmises, is not out of place. The 2nd respondent in Ext. P-7 order says : 'It looks as though the Panchayat has just been a tool in the hands of the 2nd respondent and drafted a resolution exactly on the same lines as he had indicated'. Lower down in that order there is again an observation that 'the hands of the Panchayat were not unfettered'. The 2nd respondent does not say on what materials the above inference is based. Appellate and Revisional Authorities will do well, if they refrain from casting aspersions on authorities exercising quasi-judicial jurisdiction without any basis, particularly so when the authority is an elected body like Panchayat whom the public has chosen as their representative.

The O. P. is without any substance. The same is dismissed. There will be no order as to costs.


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