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Madanlal Kapoor Vs. the State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberWrit Petn. No. 15 of 1952
Judge
Reported inAIR1953Raj101
ActsConstitution of India - Articles 19(1), 19(6) and 226; Rajasthan Dramatic Performances and Entertainments Ordinance, 1949 - Sections 3
AppellantMadanlal Kapoor
RespondentThe State of Rajasthan and ors.
Appellant Advocate R.K. Rastogi, Adv.
Respondent Advocate R.A. Gupta, Government Adv.
DispositionApplication allowed
Excerpt:
.....the district magistrate, was, therefore, perfectly within bounds to prohibit the game of pistol shooting by virtue of section 3(c) of the entertainments ordinance. he ought to have given his opinion in his order clearly that the game of pistol shooting was likely to deprave and corrupt persons present at the performance or entertainment. because the authority in its opinion considers a particular performance or entertainment to be bad or detrimental to a larger number of persons cannot empower it to prohibit it. the dramatic performance or entertainment must come under clauses (a) to (d) of section 3 before it canbe prohibited, and the order of the authority should show that the provisions of the said section were clearly before the mind of the authority when the order was made......that ground.10. the application is allowed and the non-applicants are directed not to enforce theorders of the district magistrate, dated 9thfebruary 1952, and 22nd february 1952, andprevent the applicant from giving the pistolshooting game on the strength of the saidorders. the applicant shall get his costs fromthe non-applicants including rs. 50/- as counsel's fee.
Judgment:

Sharma, J.

1. This is an application by Madan Lal Kapoor, Proprietor of Jai Hind Variety Show, under Article 226 of the Constitution of India for a writ of prohibition or any other appropriate writ, order or direction, not to interfere with the continuance of the Pistol Shooting Game at the Variety Show carried on bv the petitioner at Kotah, and also for the quashing of the order of the District Magistrate, Kotah, dated 9th February 1952, pro-hibiting the petitioner from the Game of pistol shooting and the subsequent order dated 22nd February 1952, not cancelling the previous order dated 9th February 1952.

2. The petitioner's case is that he wanted to run a variety show and certain games along with it at Kotah for profit, to which the public was to be allowed access. Although there was no law, rule or order requiring the petitioner to obtain a permit or licence from any authority for the show and performances of any nature or such as mentioned in the first paragraph of the application, yet the petitioner on account of ignorance of law and being a displaced person from West Punjab not knowing of the local conditions obtained a permit from the District Magistrate, Kotah. On 17th December,1951, by which he was permitted to run the show at Kotah City for two months from the date of commencement with a condition to run the show from 7 p.m. to 11-30 p.m., and with a further condition that only dance and music along with games of skill would be the only performance. No game of chance would be allowed.

The petitioner commenced on 31st January1952, the show with the performance of the game of skill, viz., shooting by pistol stripes of different colours of choice on a fixed board 12 feet away from the place of shooting. The show and the said game continued up to 8th February 1952, without interruption when the District Magistrate abruptly sent an order to the Superintendent of Police Kotah restricting the petitioner's performances only to the variety show and no other game. The District Magistrate expressly mentioned in his order that the section dealing with the so-called games of skill should be immediately closed and compliance reported. In pursuance of the said order, the petitioner is not being allowed the performance of Pistol Shooting since 9th February 1952, by the police, Kotah.

The petitioner made an application to the District Magistrate to cancel his order of 9th February 1952, but he did not do it. The petitioner alleges that in making the order, dated 9th February 1952, the District Magistrate did not apply his mind under Section 3, Rajasthan Dramatic Performances and Entertainments Ordinance, 1949, for coming to an opinion as required under that section; nor did he, in fact, form an opinion under any of the Clauses (a) to (d) of that section while prohibiting the Pistol Shooting Game; nor the order dated 9th February 1952, fulfils the requirements of that section. He also alleges that the District Magistrate had no jurisdiction to prohibit the Pistol Shooting Game. He further alleges that the Pistol Shooting Game is a game of skill and not a game of chance.

3. A single reply has been filed on behalf of the three non-applicants, viz., the State of Rajasthan, the District Magistrate, Kotah and the Superintendent of Police, Kotah. In their reply, the non-applicants have admitted the grant of the licence as alleged by the petitioner, and that the show commenced on 31st January 1952, but it was denied that the game of shooting by pistol continued upto 8th February 1952, or commenced along with the show. It was alleged that the Pistol Shooting Game started from 6th February, 1952, and that the District Magistrate, finding it to be a game of chance, ordered that it be stopped because in his opi-nion it was likely to deprave and corrupt persons present at the performance or entertainment.

It has further been alleged that the Game of Shooting being a game of chance was in contravention of the terms of permission, and that the District Magistrate was perfectly within his jurisdiction to pass the order, and further to see that it was enforced through proper authorities. It has further been submitted that the District Magistrate made his order after considering all the relevant facts brought to his notice. It has finally been submitted that the act of the District Magistrate was an administrative act, and the petitioner had his remedy by a regular suit. The petitioner was not entitled to any relief he claimed.

4. The learned advocate for the petitioner argued that a licence under Section 10, Rajasthan Dramatic Performances and Entertainments Ordinance, 1949 (No. 29 of 1949) (hereinafter to be referred to as the Entertainments Ordinance) was necessary only if the Government had made an order that no dramatic performance or entertainment nor any class of such performances or entertainments shall be held in any public place within any local area specified in the order except under a licence to be granted by the District Magistrate, or such officer as may specially be empowered by the Government in this behalf. The Government had made no such order, and, therefore, no licence was necessary.

The petitioner had under Article 19(1)(g) of the Constitution of India a right to carry on any occupation, trade or business. This right was restricted only by Clause (6) of Article 19, which says that nothing in Sub-clause (g) of Clause (1) shall affect the operation of any existing law in so far as it imposes, or prevents the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by Sub-clause (g). The Entertainments Ordinance has placed certain restrictions under Section 3. The entertainments given by the petitioner are his occupation, trade or business, and so a reasonable restriction in the interests of the general public could be placed on the exercise of his right of carrying on that occupation, trade or business. Section 3 of the Entertainments Ordinance does not provide that any notice would be given to the person who carried on such occupation, trade or business either before or after the order or prohibition made under the said section. The restriction placed by Section 3 was, therefore, not reasonable.

Further, it was argued that even supposing that no notice was necessary either before or after the order, the order that has been made by the District Magistrate does not come under any of the provisions of Section 3. It was, therefore, altogether illegal and of no effect and the District Magistrate had no jurisdiction to make it. It was further argued that the Game of Pistol Shooting was not a game of chance but a game of skill, although of great skill. Those who were skilled were more likely to succeed than fail. Of course, those who had no skill in shooting could certainly rarely succeed, but that does not make the game a game of chance.

5. In reply, it was conceded by the learned counsel for the non-applicants that no order of the Government had been made about the necessity of the licence under Section 10 of the Entertainments Ordinance. He further arguedthat because the petitioner himself obtained a licence and acted in accordance with it, and did not take any objection before the District Magistrate on the ground of their being no necessity for a licence, such an objection cannot be raised in this writ petition. It was further argued that it was not necessary to provide for the issue of notice before making an order under Section 3, because the issue of such notice would defeat the very purpose, and would give the performers a chance to earn a lot of money by entertainments of the type which were liable to be prohibited under Section 3.

It was further contended that if a licence was not necessary and the order of the District Magistrate was not legal and without jurisdiction, the petitioner was perfectly at liberty to go on with his show, and if he was prosecuted for disobeying the order of the District Magistrate, then he could have a remedy by contending that the prosecution should fail because the order was illegal and without jurisdiction. It may be mentioned that although in the reply it was submitted that an alternative remedy lay by way of a suit yet this was not pressed at the time of arguments. It was also contended that the Game of Pistol Shooting was a game of mere chance, and was likely to deprave and corrupt persons present at the performance or entertainment. The District Magistrate, was, therefore, perfectly within bounds to prohibit the Game of Pistol Shooting by virtue of Section 3(c) of the Entertainments Ordinance. It was finally contended that the period of the licence expired on 31st March 1952, and so any order made by this Court would be of no practical use.

6. The learned counsel for the petitioner, in reply, contended with respect to the last argument of the learned counsel for the non-applicants, that there was no necessity for obtaining: any licence under law, and the petitioner was entitled to carry on his show of Pistol Shooting Game without any licence, and he intends to carry it on even after the expiry of the licence. It was, therefore, necessary that an order be made prohibiting the District Magistrate from executing his order dated 9th February 1952, or taking any action in pursuance of the said order.

7. Taking up the last argument of the counsel for the non-applicants first, it may be said that this argument would have been worthy of consideration if it was necessary for the applicant to obtain a licence before giving his shows.

Under Section 10 of the Entertainments Ordinance the Government has been given the power, if and when it considers necessary, tq order that no dramatic performance or entertainments nor any class of such performances or entertainments shall be held in any public place within any local area specified in the order except under a licence to be granted by the District Magistrate or such officer as may specially be empowered by the Government in this behalf. It has been conceded by the learned counsel for the non-applicants that the Government of Rajasthan has not issued any such order. Therefore, it cannot be said that it was necessary for the applicant to obtain a licence before starting his shows. It cannot be denied that the giving of the shows is the petitioner's occupation or business, and under Article 19(1)(g) of the Constitution of India the petitioner being a citizen of India has a right to practise any profession or to carry on any occupation, trade orbusiness, subject only to the restriction imposed by Clause (6) of Article 19, the relevant portion of which runs as follows:

'Nothing in Sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevents the State from making any law imposing, in, the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause.'

It has been argued on behalf of the non-applicants that Section 3 of the Entertainments Ordinance lays reasonable restrictions on the exercise of the right of giving dramatic performances and entertainments by the persons who carry on that occupation or business, and those reasonable restrictions are in the interests of the general public. Although on behalf of the petitioner it has been contended that Section 3 of the Entertainments Ordinance is 'ultra vires' the Constitution of India, as it does not lay down any reasonable restrictions in the interests of the general public, and particularly because it does not provide for a notice before or after the order, yet it is unnecessary, in the circumstances of the present case, to decide that question. Assuming for the sake of this case that Section 3 of the Entertainments Ordinance does not contravene the provisions of Article 19(1)(g) read with Clause (6) of the said Article, it has yet to be seen whether the orders of the District Magistrate dated 9th February 1952, and 22nd February 1952, are in consonance with the provisions of the said section. The section runs as follows:

'Whenever the District Magistrate is of opinion that any play, pantomine, or other drama or entertainment or any part thereof performed or held or about to be performed or held in a public place is-

(a) of a scandalous or defamatory nature; or

(b) likely to excite feelings or disaffection to the Govt., or

(c) likely to deprave and corrupt persons present at the performance or entertainment; or

(d) of a dangerous character, likely to endanger human life or to cause injury to any person present thereat,

such Magistrate may by order prohibit theperformance or entertainment or any partthereof.'

It has been argued by the learned counsel for the non-applicants that the Game of Pistol Shooting was likely to deprave and corrupt persons, present at the performance or entertainment, as it was in the nature of gambling. If the District Magistrate had applied his mind to the provisions of Section 3 (c) of the Entertainments Ordinance, on which the learned counsel for the non-applicants relies, and had found that the Game of Pistol Shooting was likely to deprave and corrupt persons present at the performance or entertainment, this Court might have found it difficult to hold that the orders were not in consonance with Section 3 (c).

The Legislature has given the District Magistrate, power to prohibit certain dramatic performances and entertainments, if the District Magistrate were of opinion that the performance and entertainment or any part thereof was being performed or held, in a public place and was likely to deprave and corrupt personspresent at the performance or entertainment, it might not have been possible for this Court to probe into the reasons which led the District Magistrate to form such an opinion. But it isnecessary for the District Magistrate before he prohibits any dramatic performance or entertainment under Section 3 to record an opinion that the performance or entertainment was likely to deprave and corrupt persons present at the performance or entertainment. The District Magistrate, in his order dated 19th February, 1952, only says that.

'Messrs. Jai Hind Variety Show, which had been allowed to run their show at Kotah City, along with game of skill, were restricted to have only variety show and no other game. The section dealing with the so called games of skill should, therefore, be immediately closed and compliance reported.'

From this order it does not at all appear that the District Magistrate ever applied his mind to CL (c) of Section 3. It only says that the so called game of skill should be immediately closed. It does not amount to giving an opinion that the game, which the District Magistrate called the so called game of skill, was likely to deprave and corrupt persons present at the performance or entertainment. This order cannot, therefore, be said to be in conformity with the provisions of Section 3 (c) of the Entertainments Ordinance.

8. Coming to the subsequent order of 22nd February 1952, although there is the recital inthat order that the parties were heard and, their points were considered, yet the only opinion which the District Magistrate seems to have formed is that the pistol shooting game was not a game of skill but of mere chance, and that a very small number of people were-to gain by it, while a very large number of people were likely to lose. From these observations of the District Magistrate it cannot be said that he applied his mind to the provisions of Section 3 (c) of the Entertainments Ordinance. He ought to have given his opinion in his order clearly that the game of pistol shooting was likely to deprave and corrupt persons present at the performance or entertainment.

We are not concerned with the reasons for his opinion that the game was not a game of s_kill but of chance only, and more people were likely to lose than gain. Our only concern is to find out from the order whether the District Magistrate, passed his orders dated 9th February 1952 and 22nd February 1952, after applying his mind to the provisions of Section 3 (c) of the Entertainments Ordinance. The Constitution has made certain rights as fundamental rights of a citizen, and the practising of any profession or carrying on of any occupation, trade or business is one of them. Only reasonable restrictions can be placed on the exercise of that right, and they must be in the interests of the general public. Supposing that the restrictions laid down by Section 3 are reasonable and in the interest of the general public, the authority, who has been invested with the power of placing those restrictions, ought to make an order which is in strict conformity with the provisions of the said section.

Because the authority in its opinion considers a particular performance or entertainment to be bad or detrimental to a larger number of persons cannot empower it to prohibit it. The dramatic performance or entertainment must come under Clauses (a) to (d) of Section 3 before it canbe prohibited, and the order of the authority should show that the provisions of the said section were clearly before the mind of the authority when the order was made. Learned counsel for the non-applicants has not been able to show anything in the two orders from which it could be gathered that the District Magistrate applied his mind to any of the provisions of Section 3 before making either of the two orders. The said orders are, therefore, of no force, and the District Magistrate, or for the matter of that, any of the non-applicants, cannot enforce the said orders and prevent the applicant from giving the pistol shooting game.

9. In view of the last finding it is not necessary to go into other questions which have been raised on behalf of the non-applicants in the arguments. The only question to be considered is whether it would be an effective remedy for the applicant to give his show in the face of the orders, invite his prosecution, and then plead in the criminal case that the order was against law, and was, therefore, unenforceable. No sensible man can be expected to invite this trouble for himself. The applicant's application cannot, therefore, be thrown out on that ground.

10. The application is allowed and the non-applicants are directed not to enforce theorders of the District Magistrate, dated 9thFebruary 1952, and 22nd February 1952, andprevent the applicant from giving the pistolshooting game on the strength of the saidorders. The applicant shall get his costs fromthe non-applicants including Rs. 50/- as counsel's fee.


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