Salil Kumar Datta, J.
1. The petitioner No. I, a registered partnership firm with petitioners Nos. 2, 3 and 4 as partners, are the holders of a permanent cinema license. The license has been granted under the West Bengal Cinemas (Regulation) Act, 1954 (hereinafter referred to as the said Act), for exhibition by a cinematograph at Rupchaya Cinema at Kankapara, Village Berachampa P. S. Deganga, in the District of 24 Parganas. The said license was granted on May 8, 1970 for one year and is being renewed every year and is still remaining valid and enforceable and the petitioners are carrying on tbe business of exhibition of films by cinematograph at the said RUPChaya Cinema.
2. The respondents Nos, 5 and 6 carried on business under the name and style of Banirupa Cinema at the said village Berachampa under a temporary indoor cinematographic license. The license expired in first week of July 1971 and the petitioners objected to the renewal of the said license and the license was not renewed. Thereafter the said respondents again attempted for issue of temporary license in their favour and objections against the issue of such license was duly filed by the petitioners on July 11, 1971, The petitioners were given no hearing In support of their objection nor was any enquiry made on behalf of the respondent No. 1. The petitioner Ramzan Ali sometime in September 1971 found the said respondents renovating and decorating their said cinema building and on enquiry came to learn from them that they had applied for and would soon be getting a cinema license. The petitioners being apprehensive filed a Title Suit No. 152 of 1971 and obtained an interim. Injunction restraining the said respondents from using any license or running the cinema business. In spite of the said order, the said respondents started exhibition of films at the said cinema. Apprehending breach of peace the said petitioner made an application before the Sub-Divisional Magistrate at Barasat under Section 144(2) of the Code of Criminal Procedure and on September 23, 1971 the learned Magistrate passed order restraining them from running the cinema show at Banirupa Cinema for sixty days. On September 26, 1971 the said respondents appeared before the Magistrate and produced a temporary license granted by the District Magistrate whereupon the prohibitory order was stayed. The Petitioners thereupon came to learn that temporary cinema license was granted to the said respondents.
3. On the contention that the grant of the temporary cinema license was in direct violation of the provision to Rule 8 (2) of the West Bengal Cinemas (Regulation of Public Exhibition) Rules, 1956, (hereinafter referred to as the said rules). Banirupa cinema being much less than half a mile's distance from the petitioner's cinema house, and that such license was granted without requisite enquiry and without hearing the petitioners on their objection, the petitioners moved this Court in constitutional writ jurisdiction praying for a writ in the nature of mandamus commanding the respondents to act and proceed in accordance with law, to rescind, withdraw or cancel the temporary indoor cinema license granted in favour of the respondents Nos. 5 and 6 and also to forbear [from issuing any such license within hall a mile of the said cinema. A writ in the nature of certiorari was also prayed for quashing the records and proceedings relating to the said license.
4. On this application a rule was issued on September 28, 1971 in terms of the prayer and an interim order was also issued restraining the respondents from giving effect or further effect to the temporary cinema license or from running any cinema show at the Banirupa Cinema. It appears that on September 30, 1971 the interim order in presence of the learned Advocates of the petitioner and the respondents Nos. 5 and 6 was modified asking the petitioners and the said respondents to maintain an account of all respective shows held by them till the hearing of the rule, without prejudice to the rights and contentions of the parties.
5. The rule was opposed by the respondent No. 1 on whose behalf an affidavit-in-opposition was filed stating that there was a due enquiry, on the objection filed by the petitioners against grant of temporary license, by the local Block Development Officer and the Sub-Divisional Officer. By the enquiry report Issue of temporary license impugned in the rule was recommended. It was further stated that there was no statutory disability in respect of the site offered by the respondent No. 5 nor was there any irregularity in the grant of the license under proviso to Rule 8 (2) of the said Rules. The respondents Nos. 5 and 6 jointly filed an affidavit-in-opposition stating that their license was already in force when the license was granted to the petitioners. The respondents denied that the petitioners were entitled to any hearing on their objection. The suit filed by the petitioners was misconceived end was based on untrue allegations. The order of the Criminal Court was also based on such incorrect and misleading representations. It was denied that Banirupa Cinema was situate within 200 yards of the Cinema Hall of the petitioners as alleged or that there could be no temporary cinema hall within its half a mile area, and such disputed question of fact could not be decided in this proceeding. Further the licensing authority granted license on due consideration of all relevant facts and found that the objections were untenable. It was also denied that the grant of license was illegal or ultra vires and in violation of the said Act and its rules. The respondents also contended that the statute provides for an appeal against the order of the respondent No. 1 which was not availed of by the petitioners. The respondents denied also all other material allegations in the petitions and submitted that the petitioners are not entitled to any relief in this rule.
6. The petitioners filed two affidavits-in-reply against the said affidavits of the respondents reiterating their allegations and contentions made in the petition. It was stated that no enquiry was in fact made though report might have been submitted. It was further stated that the application of the said respondents for grant of permanent cinema license at the same site was reflected on May 12. 1970 as it was hit by Rule 4 (3) as permanent cinema license was granted to the petitioners and no temporary license could thereafter be granted in respect of the said place. If was further denied that the title euit filed by the petitioners was misconceived. In the suit, the Commissioner found that the distance between the two cinema halls was about 455/482 yards and is within the prohibited distance under the statute and the rules.
7. An application was filed on June 8, 1972 by the petitioner stating that the temporary license granted to the said respondents would expire on June 16, 1972 and they had again applied for a renewal of the same in their favour. The petitioners further stated that the respondent No. 1 had issued temporary licenses for short periods on about six occasions during September 6, 1968 to July 6, 1971, in favour of the respondent No. 6 and on one occasion for September 17, 1971 to June 16, 1972 in favour of the respondent No. 5, and the said respondents are brothers. The temporary licenses have thus become permanent in nature in the guise of temporary license and are arbitrary, mala fide and illegal, The said respondents have again applied for a renewal of the said license and the petitioners would be put to serious loss If such license was granted. In the circumstances the petitioners prayed for en injunction restraining the respondent No. 1 from granting any further temporary indoor cinema license within half a mile from the petitioners' cinema named 'Rupchhaya' till the disposal of the rule. This application was opposed by the respondents and the Court on hearing the parties passed no order on the application but fixed an early date for hearing of the rule. A supplementary affidavit was filed on June 27, 1972 by the Anchal Prodhan of Berachampa Anchal stating that no enquiry was made of him or in the locality by the authorities regarding grant of the temporary cinema license. Thereafter the rule came up for hearing and on July 17, 1972 the petitioners filed another, a supplementary, affidavit stating that the respondent No. 1 even during the hearing of the rule, has granted a temporary cinema license to the respondent No. 6 for nine months from July 12, 1972 in colourable, exercise of power.
8. Mr. Chatterjee learned Advocate appearing for the respondents Nos. 5 and 6 has raised some preliminary objections against the rule. His first contention is that the petitioners had instituted a title suit for the same reliefs against fthe said respondents and the said suit is being duly prosecuted by the petitioners. The alternative remedy has been availed of by the petitioners and accordingly this rule should be discharged.
9. There can be no dispute about fthe proposition that if a person avails of the alternative remedy, he is not competent to move for issue of constitutional writs for identical reliefs. The suit, as we have seen, was against the said respondents, and as far as could be gathered the prayer was for restraining the respondents from using the license for holding any cinema shows at village Berachampa. In this rule, the petitioners have prayed for writs commanding the District Magistrate. 24 Parganas to act in accordance with law and for rescinding or cancelling the license or giving effect or further effect to the same. The causes of action are thus distinct and the parties are also different as pointed out by Mr. Chakravarti, learned Advocate for the petitioners. There is accordingly no legal bar on the petitioner in moving the present petition and obtaining reliefs prayed for if they are otherwise entitled to the same.
10. Mr. Chatterjee next contended that under Section 5(4), Clause (a) of the said Act, there is a provision for appeal against the order of the District Magistrate and under Clause (b) thereof an order passed on appeal is subject to revision by the State Government The petitioners are not entitled, it was contended to move this Court in this jurisdiction without exhausting the said remedies which are fully efficacious and afford complete relict Existence of such alternative remedies have mot been accepted by Courts as insurmountable bar, except that this Court normally will not entertain any challenge to the impugned order on facts which, are disputed and the proper forum for such contention should be the appellate authority.
11. Mr. Chatterjee next contended that the temporary license which was challenged as being illegally granted, has in the meantime come to an end. It appears that a fresh license has been granted to the respondent No. 6 with effect from July 12, 1972. The rule, it was contended has become infructuous and this Court will not issue declaratory writs in respect of the temporary license as may be granted to the said respondents.
12. This contention appears to be untenable as this Court is entitled to consider whether the temporary licenses granted so far have been in accordance with law. If it is found that such licenses have been issued in violation of the provisions of law this Court can certainly command the District Magistrate, 24 Parganas by issue of an appropriate writ to act in accordance with law in the matter of granting cinema licenses as prayed for by the petitioners. Otherwise, a person in this state of affairs will never be entitled to any relief in cases the temporary licenses expire before the matter comes up for final hearing and disposal. The preliminary objections raised by the respondents are accordingly overruled.
13. Mr. Chakravarti has contended that the respondents Nos. 5 or 6 are being granted series of temporary licenses almost continuously since 1968 though each of such license is for short periods. This is practically granting permanent license to them by the District Magistrate which is a colourable exercise of power. This practice has been condemned by the Supreme Court in dealing with grant of temporary permits in quick succession under Section 62 of the Motor Vehicles Act, 1939 without taking recourse to its Section 57 as was held in Madhya Pradesh State Road Transport Corporation v. B. P. Upadhaya, : 3SCR786 . It must however be observed that there is great difference between the provisions of the two statutes and their purposes. Under the Motor Vehicles Act applications for temporary permits under Motor Vehicles Act are invited by the authorities to meet a particular need, while in the Act we are concerned with, there is no provision for inviting applications to meet any need of the public. Any person under this Act may apply for temporary indoor cinema license and if he satisfies the requisite conditions, the permit will be granted to him for temporary period and every application under Rule 9 (3) of the said Rules is to be considered as a new application and shall be dealt with accordingly. Renewal of temporary licenses has thus no analogy with renewal of motor vehicle permits and such renewals cannot be called a colourable exercise of power by the District Magistrate as contended.
14. Mr. Chakravarty has also contended that there was wo enquiry on the objection filed by the petitioners against the grant of temporary license to the respondents Nos. 5 and 6. The petitioners were again not given any opportunity of hearing before the respondent No. 1 before grant of the impugned license. It will, however appear from the affidavit-in-opposition filed on behalf of the respondent No. 1 that due enquiry was held by the Block Development Officer. Deganga as also the local Sub-Divisional Officer. As to the other contention, there is no provision for any personal hearing of the objections against grant of license and it does not appear that any prayer for such hearing was ever made. For these reasons the contentions raised by the petitioners era not acceptable.
15. The next question requiring consideration is whether in granting temporary indoor cinema license there has been any violation of the provisions of the said Act and Its rules. The relevant rule is Rule 8 of the said Rules which is set out below :
8. (1), 'Any person desirous of obtaining a licence for a temporary indoor cinema shall apply in writing, giving the necessary particulars, to the District Magistrate of the district within which it is proposed to hold the shows.
(2). On receipt of such an application the licensing authority, after making necessary enquiries, may, at his discretion grant a licence for a temporary indoor cinema subject to the condition that--
(a) no such licence shall be issued in respect of any structure which is situated within one hundred yards of any hospital, place of worship or junction of important roads, and,
(b) that no cinema show shall be held--
(i) within municipal areas, towns or cantonments with a population of more than a lakh, within one hundred yards, or
(ii) in other municipal areas, towns or cantonments, within two hundred yards, or
(iii) in other localities, within half a mile, from an existing cinema house:
Provided that the conditions specified in Clauses (a) and (b) of this sub-rule shall not apply to the grant of a licence for a temporary indoor cinema to any person for holding cinema shows at a place in respect of which a licence for a permanent cinema has already been granted to any other person.'
Mr. Chakravarti has contended that the cinema house of the respondents Nos. 5 and 6 named Banirupa is situate within 200 yards of Rupchaya, though the Pleader Commissioner found the distance to be about 475 yards or thereabout. It is obvious that the distance between the two cinema houses is much less than half a mile and will be about a quarter of a mile. It has been contended by Mr. Chatterjee that substantial compliance with rules would be sufficient for grant of license as provided in Section 5(1)(a) of the Act which is to the following effect :
Section 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 .....'
As was observed by B. N. Banerjee, J. in Ranjit Kumar De v. District Magistrate, Nadia, (1963) 67 Cal WN 590, that though a little variation like shortage of a few yards of distance under Rule 4 (3) which was held mandatory, may be taken as substantial compliance, 'under the pretext of substantial compliance, the requirement must not be so far ignored as to make the prohibitions farcical or render them wholly nugatory.'
16. Under Rule 8 (2) (b) (iii) which applies to this case, it will appear that without the proviso, no cinema show shall be held within half a mile from the existing cinema house. The distance between the two cinema houses, which cannot be ignored under plea of disputed fact, is too short to be accepted as substantial compliance of the rules. Prima facie it appears accordingly that the grant of licence is hit by the said rule unless saved by the proviso.
17. The said proviso provides that the conditions of Clauses (a) and (b) of the Rule 8 (2) shall not apply to the grant of a temporary indoor cinema license for holding cinema shows at a place in respect of which a permanent license has already been granted. The form of a Permanent Licence also mentions the Cinema house at the address mentioned therein as a place where exhibitions may be given. On this basis it has been argued that the words 'at a place' mean the place in respect whereof a permanent license has been granted and the impugned license being at another site, the proviso has no application.
18. The proviso has not been happily worded and its provisions make it difficult to arrive at a correct or fair interpretation. If the words 'at a place' in the proviso mean, the actual site in respect of which a permanent cinema licence has already been granted. Clause (a) therein appears to be redundant, as the conditions for grant of licence under Rule 4 (3) (a) include the conditions of Clause (a) above. Again if the said words 'at a place' mean a locality in a town or village other than the site of the permanent cinema, the exemption granted by the proviso will make the Clause (a) of Rule 8 (2) nugatory. This Clause (a) in Rule 8 (2) is an essential condition for grant of licence and this provision cannot be circumvented or bypassed. This is also supported by the definition of 'place' in Section 2(d) of the Act, which again does not include a locality. Section 3(1) thereof, Clause (5) of the conditions of temporary indoor license -- all Imply that license is always in respect of a place. In Rule 2 (v), it is again provided that words not otherwise defined shall have the same meaning as in the Act, Accordingly I am of opinion, on an overall consideration of the provisions, that the words 'at a place' in the proviso to Rule 8 (2) refer to the cinema house which is licensed as a place of exhibition by cinematograph under the express terms of the permanent license.
19. Coming again to the provisions of Rule 8, its Clause (a) relates to the conditions for grant of license while Clause (b) relates to the conditions of license. If Clause (b) was intended as a condition for grant of license, it would have been included in Clause (a) or appropriate words would have been there to ensure, it. Neither the scheme of the Act nor Clause (b) indicate, expressly as in Clause (a) or by implication, that no license can at all be granted unless provisions of Clause (b) are complied with, or such provisions are conditions precedent for grant of such license. It is obvious that provisions of Clause (b), unlike those of Clause (a), will entail no public benefit nor its contravention will involve public danger or inconvenience and regulation of cinemas for ensuring public convenience and safety of audience are the real objects of the Act. For these reasons while it can be said that provisions of Clause (a) of Rule 8 (2) are mandatory, those of Clause (b) are merely directory so that its contravention will not invalidate any license issued in compliance with the provisions of Clause (a).
20. It is also to be noted that Clause (b) relates to regulation of cinema shows under a temporary indoor cinema license and has no concern with the grant of license. It is competent for the authority granting such license to impose conditions or restrictions on cinema shows to be held under the said license. Imposition of such conditions or restrictions by such license as has been granted under the said Act is envisaged in its Section 3(1). The District Magistrate while granting the impugned licenses, there is no dispute, has imposed no conditions or restrictions in respect of cinema shows except for exhibition at Banirupa Cinema. This was properly done as the licences are in effect renewals though dealt as fresh applications under the rules and at the time the temporary licence was first issued to the said respondents, the petitioners' cinema house was not in existence. In that state of affairs it would be improper to put any restrictions on cinema shows under the said licences as contemplated in Rule 8 (2) (b) (iii) of the Rules, and, such action would be an unreasonable restriction on the trade of the said respondents in the circumstances while non-imposition of the condition under the said provision will not invalidate the license.
21. For these reasons the rule fails and is discharged without costs and all interim orders are vacated.