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Maheboobbhai Jalalbhai Shaikh Vs. State of Gujarat and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1980)2GLR162
AppellantMaheboobbhai Jalalbhai Shaikh
RespondentState of Gujarat and anr.
Excerpt:
- - therefore, the amendment made to rule 14(1), incur opinion, is violative of article 14 and is bad in law......in this state are regulated by the bombay cinema (regulation) act, 1953. under that act, bombay cinema rules, 1954 have been made. the act and the rules contemplate two kinds of cinemas--permanent cinemas and touring cinemas. by amendments made in 1979 to the bombay cinema rules, a third kind of cinema house has been permitted to be established. it is 'janata cinema'. rule 2(ddd) defines 'janata cinema' in the following terms: 'janata cinema' means a cinema erected after the commencement of the bombay cinema (gujarat amendment) rules, 1979 and located in a village or a town the population of which as ascertained at the last preceding census is not more than 30, 000.2. this definition makes it clear beyond any doubt that in small towns and villages having population of not more than.....
Judgment:

S.H. Sheth, J.

1. In this petition, the petitioner who is owning a cinema house at Kheda challenges the Bombay Cinema (Gujarat Amendment) Rules, 1979, Cinema houses in this State are regulated by the Bombay Cinema (Regulation) Act, 1953. Under that Act, Bombay Cinema Rules, 1954 have been made. The Act and the rules contemplate two kinds of cinemas--permanent cinemas and touring cinemas. By amendments made in 1979 to the Bombay Cinema Rules, a third kind of cinema house has been permitted to be established. It is 'Janata cinema'. Rule 2(ddd) defines 'Janata Cinema' in the following terms: 'Janata Cinema' means a cinema erected after the commencement of the Bombay Cinema (Gujarat Amendment) Rules, 1979 and located in a village or a town the population of which as ascertained at the last preceding census is not more than 30, 000.

2. This definition makes it clear beyond any doubt that in small towns and villages having population of not more than 30, 000, Government has planned the encouragement of Janata Cinemas. The definition further makes it clear that all cinema houses which may in future be constructed at such places will be Janata Cinemas. Obviously, therefore, all such cinema houses will be treated alike. The question of hostile discrimination amongst such cinema houses which may be constructed in future at such places therefore does not arise. Such places are likely to have existing cinema houses also. They will be distinct from Janata Cinemas which may be constructed in future. Ordinarily, the question of discriminating between the existing cinema houses and Janata cinemas which may come into existence in future will not arise because whereas the existing cinema cinema houses were constructed under the Rules which were in force at the relevant time, Janata cinemas will be constructed under the rules now in force. It is always open to the Government to modify its policy from time to time without discriminating between persons who are similarly situate.

3. Mr. Nanavati has, however, argued that certain amendments generate in future discrimination between the existing cinema houses and the Janata cinemas which may be constructed in future. In this judgment, we are referring to the existing cinema houses as non-Janata cinema as distinguished from Janata cinemas which may come into existence in future. Let us, therefore, examine the scheme of the Amendment Rules in that light.

4. The first amendment which has been made is to Rule 3. Whereas Rule 3 prior to its amendment required that no cinema house shall be situate within the radius of 200 meters from a school, hospital, temple etc. a Janata cinema may now be located within a radius of 100 meters from a school, hospital, temple etc. This amendment in no way is discriminatory because those cinema houses which have been established beyond the radius of 200 meters from a school, hospital, temple etc. continue to remain there. If any one including the owner of a non-Janata cinema wants to construct a new cinema house, he will be at liberty to apply for permission to construct it within a radius of 100 meters from a school, hospital, temple etc. Therefore, amendment made to Rule 3 in no way can be said to be discriminatory and ultra vires Article 14 because the non-Janata cinemas are not in any manner whatsoever affected by it.

5. The next amendment which had been made is to Rule 7. Whereas under Rule 7 prior to its amendment a non-Janata cinema paid a fee of Rs. 200/-for the issuance of a no-objection certificate, the amended Rule requires a Janata cinema to pay a fee of Rs. 100/-only for such a purpose. Payment of fee for the issuance of 'no-objection certificate' is one single event which happened in the past in the case of a non-Janata cinema. It paid what it was liable to pay at the time when 'no-objection certificate' was issued to it. If any one now constructs a cinema at such a place, he will be liable to pay only Rs. 100/-for the issuance of a 'no objection certificate.' It is always open to the State Government to revise such fees and to refix them from time to time depending upon the circumstances obtaining at different times. In our opinion, therefore, the amendment made to Rule 7 does not suffer from any constitutional vice and is valid.

6. The next amendment which has been made is to Rule 8A. Under Sub-rule (1) of Rule 8 A, a non-Janata cinema was required to keep half the area open. We have no doubt in our minds that a non-Janata cinema, constructed at such a place prior to the coming into force of the Amendment Rules, will be bound by this obligation in future. Sub-Rule (5) has been added to Rule 8A. It provides that a Janata cinema shall be exempt from such an obligation. There is nothing in the Amendment Rules which shows that a non-Janata cinema at such a place shall also be at liberty to utilise its open area for the extension of its cinema theatre for constructing a new cinema theatre or for any other valid business purpose. It is, therefore, clear that so far as the future effect of this rule is concerned, it will operate in favour of a Janata cinema in so far as it will be exempt from the requirement of keeping open half the area without enabling a non-Janata cinema to utilise its open area. There is no reason why there should be such a discrimination between a non-Janata cinema and a Janata cinema which may come into existence in the same town in future. In our opinion, therefore, Sub-rule (5) of Rule 8 A is ultra vires Article 14 inasmuch as it introduces in terms for its future effect hostile discrimination between a non-Janata cinema and a Janata cinema.

7. The next amendment which has been made is to Sub-rule (3) of Rule 8A. Under that sub-rule, whereas a non-Janata cinema was required to provide adequate sitting arrangement outside its auditorium for the members of the public visiting it, a Janata cinema has been exempted from this requirement under Sub-rule (5) of Rule 8 A which has been inserted by the Amendment Rules. Therefore, a non-Janata cinema shall continue to be under an obligation to provide sitting arrangement outside its auditorium for the members of the public visiting it while a Janata cinema will be under no such obligation. A non-Janata cinema will not be able to use up for any business purpose the space occupied by such sitting arrangement. There is nothing in the Amendment Rules which permits a non-Janata cinema to do it. Therefore, in future, there is bound to be discrimination between a non-Janata cinema and. a cinema which may come into existence. In our opinion, therefore, Rule (5) of Rule 8 A, is so far as it grants exemption to a Janta Cinema from the requirement of providing adequate sitting arrangement outside its auditorium for the members of the public visiting it and requires a Non-Janata cinema to continue to provide such sitting arrangement, is discriminatory and violative of Article 14. It is, therefore, liable to be struck down.

8. The next amendment which has been made is to Rule 8B. Clause (2) has been inserted therein by the Amendment Rules. Prior to its insertion, Rule 8B required a non-Janata cinema to provide parking arrangement for vehicles of those who may visit it. Sub-rule (2) of Rule 8 B which has now been inserted by the Amendment Rules exempts a Janata cinema from this requirement. Therefore, whereas the obligation of providing parking arrangement on the part of a non-Janata cinema continues to be in force, it has been removed in case of a Janata cinema which may come into existence in future. In our opinion, therefore, Sub-rule (2) of Rule 8 B is discriminatory and violative of Article 14 of the Constitution.

9. The next amendment which has been made is to Rule 9. Sub-rule (3) has been inserted therein which provides that nothing in Sub-rule (1A) shall apply to a Janata cinema Now under Sub-rule (1A) of Rule 9, a non-Janata cinema earlier was required to provide fire-proof ceiling in terms of IS1 standards while a Janata cinema would now be exempt from this obligation. This amendment, in our opinion, is not discriminatory at all because a non-Janata cinema which has provided fire-proof ceiling as required by the rules then prevailing will continue to have it. It does not have any future or recurring effect. It was a single event which happened when the Rule prior to its amendment was in force. In future, since all cinema houses at such places are going to be Janata cinemas, all will be exempt from this obligation. Therefore, insertion of Sub-rule (3) in Rule 9 is in no way discriminatory and is, therefore, not violative of Article 14.

10. The next amendment which has been made is to Rule 14 (1). Whereas prior to its amendment, only 20 persons could be accommodated in an area of 9 sq. meters, the amended rule now provides that a Janata cinema may accommodate 25 persons in an area of 9 sq. meters. There is nothing in the amendment Rules which enables a non-Janata cinema to increase its sitting accommodation in the same area. Therefore, in future, whereas a non-Janata cinema will continue to accommodate 20 persons in an area of 9 sq. meters, a Janata cinema which may come into existence in future will be able to accommodate 25 persons in an equal area. We see no rational reason why such a discrimination should be made between a non-Janata cinema and a Janata cinema which may come into existence in future. Therefore, the amendment made to Rule 14(1), incur opinion, is violative of Article 14 and is bad in law.

11. The next amendment which has been made is to Rule 15(1). Rule 15(1) prior to its amendment provided that passage or gangway in a non-Janata cinema ought to be formed in such a manner that no seat shall be three or more meters away from it. The amended rule enables a Janata cinema to form passage or gangway in such a manner that no seat shall be four or more meters away from it. It is clear, therefore, that the amendment made to Rule 15(1) enables a Janata cinema to have more seats in the same area while a non-Janata cinema is required to maintain the old proportion. There is nothing in the amendment Rules which enables a non-Janata cinema to reduce the passage gangway and to readjust its sitting arrangement so as to conform to the Janata cinema standards. In our opinion, therefore, the amendment to Rule 15(1) discriminates between a non-Janata cinema and a Janata cinema which may come into existence in future. Therefore, it is violative of Article. 14.

12. The next amendment which has been made by the Amendment Rules is that whereas earlier a non-Janata cinema was required to strictly comply with the rules for electric installation, Janata cinemas have been exempted from such a requirement now. Electric installation takes place once and it is ordinarily not a recurring event. Therefore, what a Janata cinema is required to do in future cannot be compared with what a non-Janata cinema did in the past. A non-Janata cinema did what it was required to do under the rules then in force. A Janata cinema will do what it is required to do in terms of the rules now in force. It may be stated that all cinema houses which may be constructed hereafter will have to comply with the same requirement in this behalf. Therefore, the amendment made in Chapter IV of the rules in respect of electric installation is not at all discriminatory and is, therefore, not violative of Article. 14.

13. Rule 76 requires a non-Janata cinema to provide a hydrant. The second proviso to Rule 76 which has been inserted by the amendment Rules exempts Janata cinema from this requirement. There is nothing in the amendment Rules which shows that a non-Janata cinema will be at liberty to remove its hydrant if it wants to do so. Therefore, the obligation to maintain a hydrant and to pay for the consumption of water supplied by it continues to remain in force for a non-Janata cinema even after the amendment Rules have come into force. Therefore, in our opinion, the second proviso to Rule 76 is discriminatory and is violative of Article 14.

14. The next amendment which has been made is to Rule 86. Whereas Rule 86 prior to its amendment provided that a non-Janata cinema shall be required to have a telephone, a Janata cinema has been, under the amended Rule 86, exempted from this requirement. There is nothing in the amendment Rules which enables a non-Janata cinema to remove its telephone if it so wants to do. Therefore, whereas a non-Janata cinema continues to be under an obligation to maintain a telephone, a Janata cinema which may come into existence hereafter shall not be under such an obligation. In our opinion, therefore, amendment made to Rule 86 discriminates between a non-Janata cinema and a Janata cinema which may come into existence in future. It is, therefore, violative of Article 14.

15. The next amendment which has been made is to Rule 108. Sub-clause (d) has been inserted in Clause (1) of Rule 108. Whereas, prior to the amendment of Rule 108, licence fee for a non-Janata cinema was Rs. 450/-for a period of three years, it has been reduced for a Janata cinema which may come into existence hereafter to Rs. 225/-for the same span of period. There is nothing in the amendment Rules which shows that a non-Janata cinema now shall also be liable to pay only Rs. 225/-. It is, therefore, clear that whereas a non-Janata cinema continues to be under an obligation to pay Rs. 450/-for a period of three years, a Janata cinema will be under an obligation to pay only Rs. 225/-for the same period. We see no justification for such a discrimination in the matter of payment of licence fees between a non-Janata cinema and a Janata cinema which may come into existence in future. Therefore, the amendment made to Rule 108 is, in our opinion, violative of Article 14.

16. As a result, we find that some of the amendments made to the rules are in violation of Article 14 and some are not.

17. We, therefore, partly allow the petition and declare that the following amendment rules are ultra vires Article 14 and are, therefore, void.

(1) Sub-rule (5) of Rule 8A.

(2) Sub-rule (2) of Rule 8B.

(3) Amendment made by the impugned Amendment Rules to Sub-rule (1) of Rule 14.

(4) Amendment made to Sub-rule (1) of Rule 15 by the impugned Amendment Rules.

(5) Second proviso to Rule 76.

(6) Proviso to Rule 86;

(7) Clause (d) in Sub-rule (1) of Rule 108.

A writ of mandamus shall issue requiring the respondent to desist and forbear from enforcing the rules which have been declared void. Rule is made partly absolute to the aforesaid extent. No orders as to costs in the circumstances of the case. We may add that this Court admitted this petition on 3-3-1980. Thereafter, this Court made an order in civil application No. 946 of 1980 fixing 28th July 1980 as the date of hearing of this petition. We are sorry to state that even though notice was issued four months ago and the respondents were duly served with a notice of this petition, they have not chosen to enter their appearance and to connect the petition. Under the circumstances, it is needless for us to say that they have not filed any affidavit and are did not have the benefit thereof.


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