1. This is an application under Article 226 of the Constitution and Section 45 of the Specific Relief, Act for cancellation of an order of suspension of the Censor Certificate of the film entitled 'Section 109', alleged to have been passed by the Respondent West Bengal Board of Censors constituted under the Cinematograph Act 1918 and having its office at 1 Lal Bazar Street, Calcutta.
2. On the 12th June 1950 the petitioner produced a movie picture entitled 'Section 109', and on the 20th June 1950 applied for a Censor Certificate in respect of the same. On the 26th June 1950 the film was exhibited before two Inspectors of the Censor department but apparently they were not favourably impressed with the film & so the film was exhibited before the full board of Censors consisting of 12 members for their examination, on the 11th July 1950. The full board of Censors passed the film, but as according to the petitioner there was delay in issuing the certificate, the Managing Director of the petitioner interviewed Mr. R. Gupta the Home Secretary of the Government of West Bengal who was also a member of the Board of Censors and through his intervention succeeded in having the Censor Certificate issued on the 14th July, 1950.
3. Thereafter on or about the 18th August 1950 the film was released in three houses in Calcutta 'Minar', 'Bijoli' and 'Chhabighar' and also at certain Mofussil houses and it continued to run in Calcutta until 21st September, 1950.
4. In the meantime the Secretary to the Respondent Board wrote a letter dated the 2nd September 1950 to the petitioner alleging that certain additions had been made to the film since it was passed by the Board on the 11th July 1950 in consequence of'-which the 11000 feet limit had been exceeded and it was pointed out that the alleged addition was an offence under the Footage Restriction Order.
5. The charges made in the letter of the 2-9-1950 were denied by the petitioner by its letter dated the 13th September 1950.
6. On or about the 22nd September 1950, the Secretary to the Respondent Board informed the petitioner by letter of that date that the Board's Certificate for the said film was suspended till certain additions and alterations made to the film after certification, were deleted and the cuttings from both the negative and positive prints were surrendered to the office. The petitioner was further required to get a revised version of the film certified on payment of the prescribed censorship fee and the film was not to be shown anywhere until that was done.
7. The petitioner sent a reply to the letter of the Secretary on the 28th September 1950 and the Secretary in his turn replied to the letter of the 28th September by his letter dated the 30th September 1950.
8. It appears that on the 7th October 1950, the Commissioner of Police, Calcutta issued an order under Section 7(5) of the Cinematograph Act, 1918 suspending the certificate in question and the Government of West Bengal purporting to act under section 7(6) of the said Act, had. by a notification published in the Gazette of the 13th October 1950 directed that the film should be deemed to be an uncertified film in the whole of the West Bengal State.
9. The petitioner has not in this petition challenged the order of the Commissioner of Police dated the 7th October, 1950 nor has the petitioner challenged nor could he challenge the Government Notification dated the 13th October in this petition which was affirmed on the 12th October 1950 that is one day prior to the publication of the Notification and which was moved and upon which Rule Nisi was obtained from Mr. Justice Guha on the 12th October, 1950.
10. The petitioner has challenged the validity of the action taken and/or order made by the letter of the 22nd September 1950 on the ground that the same was in contravention of the provisions of the Cinematograph Act and was without jurisdiction and also on the ground that it was mala, fide.
11. Under Section 7 of the Cinematograph Act (Act II of 1918) the Respondent Board has been constituted as the authority for the purposes of certifying films for public exhibition.
12. Under Sub-section 4 of Section 7 of the Act, the authority has the power to demand the exhibition before itself of any certified film and to suspend by order the certificate of any such film pending the order of the Local Government.
13. Under Sub-section 5, of Section 7, the Commissioner of Police in a Presidency Town may by order suspend the certificate of any such film pending the order of the Local Government.
14. In the Rules framed under Section 8 of the Act, the terms 'Board', 'President' and 'Secretary' have been defined. (Rule 2 (b) (c) and (d)). Rules 4 to 10 lay down the procedure for convening the meetings of the Board, for conduct of the proceeding at the meetings and for transacting business at such meetings.
15. Rule 10 (3) provides that
'It shall be the duty of the Board at each meeting to hear any representations from the importers of films or their authorised agents or from the members of the public in respect of the report of Inspectors or may examine any matter in regard to a film already certified as suitable for public exhibition.'
16. It is contended by Mr. M. Hazra, the learned- counsel for the petitioner, that the order of suspension as contained in the letter of the 22nd September 1950 written by the Secretary of the Respondent Board to the petitioner is not warranted by the provisions of the Cinematograph Act or the Rules made thereunder.
17. It is clear that if it was an order by the Secretary himself, the order must be without jurisdiction because the Secretary has no power to make any order of suspension.
18. If the order was that of the Board, there is nothing to show that the Board actually held any meeting before the date of the order or arrived at any decision in accordance with the rules laid down after giving a hearing to the petitioner or any body on its behalf. There is nothing in the affidavit filed to suggest that any Board meeting was held or any order of suspension was passed by it on or before the 22nd September 1950. It appears that the only Board meeting approving the suspension was held on 31st October, 1950.
19. It is submitted by Mr. A. K. Sen, the learned counsel for the Respondent, that the letter of the 22nd September 1950 was not an order but was merely an intimation of an order which was actually passed by the Commissioner of Police under Section 7(5) of the Act. The letter, however, on the face of it does not purport to be an order of the Commissioner of Police. On the other hand, the letter of the Secretary dated the 30th September 1950, suggests that the order mentioned ip. the letter of the 22nd September 1950 was an order made by the Board. The last sentence of that letter runs as follows:
'Until these scenes are deleted the decision of the Board suspending your Licence will stand.'
20. Moreover, the wordings of the letter dated the 22nd September 1950, 'I write to say that the Board Certificate No. 24868 dated the 15th July 1950 for the said film is suspended till etc.' show that the letter was not merely an intimation but was intended to be an operative order. It appears that this is the usual expression which is adopted while making orders of suspension. The wording of the order dated the 7th October 1950 is the same. There also the words 'I write to say etc.' occur.
21. Assuming the order contained in the letter of the 22nd September 1950, was the order of the Commissioner of Police made under Section 7(5) of the Act it appears to me that the Commissioner's order cannot be held to be a valid order under Section 7(5) of the Act as Section 7(5) does not contemplate making of a conditional order of suspension as has been purported to have been made in this case. It is stated in the order that suspension is to have effect till additions are deleted. Section 7 however contemplates cases of unqualified or absolute orders of suspension pending orders of the Local Government.
22. The original endorsement of the Commissioner of Police dated the 20th September 1950 and the endorsement of the Secretary of the Board of the same date have been produced before me. The Secretary appears to recommend suspension of 'License' and the Commissioner appears to have suspended the 'Licence', conditionally. It may be noted that Licences and Certificates are different things dealt with in sections 3 to 5 and Section 7 respectively. I think, however, that the Commissioner of Police and the Secretary used the word Licence in the sense of the Censor Certificate of the film.
23. In my view, however, for the reasons stated above the order of the 22nd September 1950 must be held to have been made without jurisdiction.
24. Now the next question is whether the order dated the 22nd September 1950 was passed mala fide.
25. The petitioner's case is that one of the two Inspectors of the Board of Censors Mr. Hemanta Kumar Bhattacharjee bore a grudge against the petitioner as arrangements could not be made by the petitioner for conveyance and other conveniences and comforts of the said Inspector when he went to inspect and examine another film entitled 'Aristocracy' produced by the petitioner some time in December, 1949.
26. The petitioner's case further is that when the Full Board of Censors passed the film on the 11th July 1950, Mr. Bhattacharjee got very much displeased and suggested to the Managing Director of the petitioner that considerable modifications and alterations must have been made to he film after he and Mr. Ghosal saw and examined it on the 26th June, 1950.
27. Afterwards when the Managing Director interviewed the Home Secretary for expeditious issue of the Licence and the latter intervened in the matter, the Secretary, Mr. Sen, got annoyed and the Inspectors also became still more displeased. Later on, one Monoranjan Hazra, who filed a suit in the Alipore Court against the petitioner and failed to get an injunction in the suit, procured the introduction of a Minister of the West Bengal Government and backed by such introduction he instigated the Secretary and the two Inspectors to take steps against the petitioner. The Secretary and the Inspectors who were not well disposed towards the petitioners lent their support and brought about the suspension of the Certificate and have thus wreaked their vengeance upon the petitioner. This is in substance the case of mala fide as set out in the petition.
28. It may be that Mr. Bhattacharjee expressed his annoyance when arrangements were not made for his conveyance and comforts at the time of inspection of the film 'Aristocracy' but it is difficult to believe that as a result thereof he would cherish a permanent grudge against the petitioner or its Managing Director. It appears that after the alleged incident another Hindi film produced by the petitioner was passed for public exhibition by Mr. Bhattacharjee without any difficulty.
29. The two Inspectors and the Secretary have sworn affidavits and have stated that the Managing Director admitted before them after the exhibition of the film before the full board of censors was over, on 11th July 1950, that certain modifications were made to the film since it was seen by Mr. Bhattacharjee and Mr. Ghosal on the 26th June 1950, and that is why when subsequently the Certificate was issued it was so done after giving a warning. If the officers had expressed their disapproval of the conduct of the petitioners at the time, I think they were quite justified in doing so.
30. The two Inspectors, however, have seen the film on three or four occasions. The Secretary has also seen the film on two occasions. They all swear that three scenes were definitely added to the film, but none of them can specify which of the parts have been taken out of the film in order to maintain the prescribed length and footage of the film and to make place for the newly added scenes.
31. On the other hand, there are the affidavits of Mr. Naresh Ch. Ghosh the Director of Associated Distributors Ltd., of Mr. Nana Bose, who edited the film in question and of Mr. Apurba Mitter, Director of the film in question who swear that all these three scenes were in the film when it was exhibited before the full board on the 11th July 1950.
32. The two Inspectors state in their affidavits that after the letter of Monoranjan Hazra was received at the office of the Board of Censors they went and saw the film at the 'Minar' Cinema and _found by calculation that 700 ft. had been added to the film but when the film was again seen on the 19th September by Mr. Ghosal and the Secretary the length had been reduced to its former footage as it was on the 11th July. 1950. If this was the real position one would expect from them definite statements as to which parts or scenes have been excised from the film to reduce the length and make it conform to the prescribed footage.
33. It may also be noted that in the letter of Monoranjan Hazra dated the 28th August 1950 there is reference to the addition ol a new court scene but none of the Inspectors-nor the Secretary support this. In the letter of the Secretary dated the 2nd September 1950, a definite case is, made out that footage restriction has been contravened by addition of new scenes but this case is given up in the subsequent correspondence. This change of case in the correspondence is sought to be supported by accusing the petitioner of tampering, with the film between the 30th August 1950 and the 19th September, 1950.
34. These circumstances do raise grounds ol suspicion against the truth of the case of the Respondent but inp order to arrive at a finding of mala fide there must be clear and strong grounds to justify such a finding.
35. In the present state of the affidavits, however, I shall not be justified in arriving at any definite finding of mala fide.
36. It was contended by Mr. A. K. Sen that the individual members of the Board ought, to have been made respondents and the application against the Board is not maintainable.
37. I do not think that there is any substance in this contention. 'Where persons, holding the office are a statutory body fluctuating from time to time and who bear an official designation given to them by a statute the proper course is to take proceedings against the body in its official description and not against each of such persons individually'. Per Kumara-I swamy Sastriyar J. in 'RE. NATESAN G. A.', 40 Mad 125 at p. 159. It is the appropriate thing to institute proceedings against statutory bodies in their official names. See 'In Re. RUDRA NARAIN', 28 Cal 479 and 'BOARD OF EXAMINERS v. PROVAS CHUNDER', 40 Cal 588.
38. It was also contended by Mr. Sen that the functions of the Board of Censors not being: judicial or quasi-judicial the application for writ of Certiorari does not lie. He points out that Clause 3 (a) of Section 7 of the Act uses the expression 'if the authority is of opinion'. This shows that the Board exercises only executive or administrative functions. He relies on the judgment of Das J. in 'PROVINCE OF BOMBAY v. KHUSHALDAS S. ADVANI, : 1SCR621 .
39. But Mr. Sen overlooks the fact that in the present application the point arises as to whether the order of suspension of Certificate was validly made or was made without Jurisdiction. The stage of certification has passed;
40. The rules made under the Act and which have the same force as the provisions of Statute itself, make it quite clear that the statutory body is under an obligation to act judicially that is to say to do an act upon a con-! sideration of facts and circumstances and imposing liability or affecting the rights of others.
41. Rule 10 (3) and Rules 14 to 22 leave no doubt that the duty of the Board is to act judicially or quasi-judicially.
42. The regulations in the English Cinematograph Act are more elaborate than those in the Indian Act and the Rules made thereunder but there can be no doubt that the Indian Act and the Rules 'thereunder have also imposed upon the Respondent Board the duty to act in a judicial or quasi-judicial manner. There is no express provision for proposal and opposition in the Indian Act or the Rules but the word 'Representation', 'hearing' and 'examine' in Rule 10 (3) and the spirit and wording of Rules 14 to 22 make it quite clear that the duty of the Board, is to determine and adjudge rights of parties upon an examination of the facts and circumstances and upon hearing the parties affected. The principle enunciated in 'REX v. ELECTRICITY COMMISSIONERS', (1924) 1 K. B. 171 by Atkin L. J. applies to this case. Atkin L. J. laid down the following test:
'Wherever any body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs.'
43. A more detailed examination of the principles is to be found in the case of 'KING v. LONDON COUNTY COUNCIL', (1931) 2 K. B. 215 at pp. 233 and 243. Now even if the duty of the Board is not Judicial, and it is a mere Administrative or executive body still the decision or order of the Board can be corrected by this Court if it is not warranted by the provisions of the Act or the Rules. The law is well established on this point.
44. I pointed out to the learned counsel for the petitioner that without challenging the order of the Commissioner of Police dated the 7th October 1950 no useful purpose will be served and the applicant will not get any effective or complete relief by merely having the order of the 22nd September 1950 cancelled or set aside by this Court. It is pointed out by the learned counsel that he will take appropriate steps to get that order set aside after this application is disposed of. It is curious that neither the affidavits in opposition nor the petition made any mention of the order dated the 7th October 1950. A copy was produced before me by the counsel for the Respondent at the hearing.
45. In my view, the present petition must succeed and the Rule is made absolute with costs.