1. The petitioner is a circus owner. It is an itinerant circus and moves from place to place. On 1-6-1954, the petitioner made an application before the District Magistrate, Birbhum for a license to show his circus at Rampurhat and Nalhati, commencing from 2nd week of July to first week of August 1954. On 24-6-1954 the District Magistrate of Birbhum wrote to the petitioner stating as follows:
'You are directed to apply for license after the harvest'.
2. This Rule was issued on 6-7-1954 calling upon the opposite party to show cause why the order dated 24-6-1954 should not be quashed and/orset aside and/or why a Writ in the nature of Mandamus should not issue directing him to proceed in accordance with the provisions of Bengal Places of Public Amusement Act (Act 10 of 1933) and/or why such further or other order or orders should not be made as to this Court may seem fit and proper.
3. The period for which the license was asked for has since expired. It appears that on 6-6-1955 the petitioner had been given liberty to show his circus at Rampurhat for the period from 7-6-1955 to 30-6-1955 but he has not been granted license with regard to Nalhati. So far as the actual application is concerned which is the subject matter of this Rule, the period having expired, I cannot make any order because such order will be infructuous.
Mr. Dutt, however, invites me to say something with regard to Section 5(3) of the said Act, and as to whether it is open to the District Magistrate to refuse the grant of a license in this fashion or not, so that in future the circus owners would know what to expect. The proper thing ofcourse would be to deal with the matter when aneffective order could be made, but I think that It would be useful to say a few words on the provisionof Section 5(3), for future guidance. Section 5(3) is as follows:--
'A license may be refused in any case in which the Commissioner of Police or the District Magistrate, as the case may be, has reason to believe that the notified place of public amusement will be conducted in contravention of any of the conditions of a license which he is empowered to grant under this Act or is likely to lead to a breach of the peace or to cause obstruction, annoyance or Injury to residents in the locality'.
What is said by the District Magistrate in the affidavit-in-opposition is that Rampurhat is a small Municipal town and Nalhati is a rural area. The contemplated circus shows in these places would inevitably attract the cultivating and poorer class of people from the neighbouring villages and also from villages at a distance of 10 or 15 miles. The village people, men and women, would come to the town and spend their time at the shows, 'indulge in rivalry and then they would go back exhausted, causing injury to themselves financially and) physically with the consequent reaction on cultivation.
This is said to be the experience of the officials who are in charge of the administration of the places concerned. It is said that it was not to the interest of the poorer people, who mostly comprise cultivators and cultivating labourers, to issue such license during the cultivating season. Under Section 5(3), a license can be refused if the District Magistrate has reasons to believe that it is likely to cause obstruction annoyance or injury to the residents of the locality. Since it is a restriction on the fundamental right of a citizen to carry on his chosen business, the word 'locality' must be strictly construed.
Where it is a Municipal town I do not think it can be extended to mean neighbouring villages or village 10 or 15 miles away. It is said, however, that Nalhati is a rural area. In such a case, neighbouring villages will be included within the word'locality', that is to say, the villages which are absolutely contiguous. On the other hand, villages 10 or 15 miles away cannot be considered as within the locality. Mr. Dutt further says that simply because a cultivator spends his time in going to the circus, it does not cause any Injury to him.
I am unable to accept this in its totality. Itall depends on the facts and circumstances of each case. If it is the opinion of the persons who arein charge of the administration of an agricultural locality that a very large class of cultivators would leave cultivation in order to seek amusement and it will cause injury to themselves, I do not think that it can be excluded from the scope of Section 5(3). On the other hand, one must exclude mere philanthropic zeal, unrelated to facts and circumstances of a particular case.
In this case the authorities have subsequently purported to grant a license with regard to Rampurhat, from which it must be inferred that the proper position has now been appreciated. With regard, however, to Nalhati, there is the question of the neighbouring villages, and in the petition it has been stated that the petitioner would like to cater for 'people of the district', which might give rise to an apprehension in the mind of the authorities that it was the intention of the petitioner to attract people from neighbouring villages. Whether under such circumstances a license should be given or not will depend on the facts and circumstances prevailing in each case. It is not possible to prejudge them.
4. It is obvious, therefore, that I can make no effective order on this application. It will in no way prejudice the petitioner in making a fresh application, which must be decided upon its own merit and in accordance with law.
5. This Rule is discharged. I make no orderas to costs.