Gangavathy N.R. vs District Magistrate, Dharwar and Others

The petitioner is the proprietor of a cinema theatre at Gadag. He has presented this writ petition praying for quashing the order of the District Magistrate, Dharwar, d|. 9-11-1976 (Ext.K) who is the Licensing Authority under Sec. 3 of the Karnataka Cinema (Regulation) Act, 1964 (hereinafter referred to as ''the Act''). By the said order the Licensing Authority refused to regrant the cinema licence to the petitioner.

Sri R.U. Goulay, learned Counsel for the petitioner raised the following contention:

The impugned order of the Licensing Authority is illegal for the reason that the Licensing Authority has abdicated its power under the Act and Rules by passing an order against the petitioner in accordance with a direction issued by the State Govt, in their letter d. 18-10-1976.

Sri U.L. Narayana Rao, learned Counsel appearing for the 3rd respondent, and Sri V.C. Brhamarayappa, High Court Govt Pleader for respondent-2, raised a preliminary objection to the maintainability of the petition on the ground that because there is a right of appeal under S. 10 of the Act to the appellate authority, the writ petition is not maintainable in view of Art. 226 of the Constitution as amended by 42nd Amendment of the Constitution. I shall take up the preliminary objection first for consideration.

The Karnataka Cinema (Regulation) Act 1964, has been enacted for regulating exhibition by means of cinematographs and the licensing of places in which cinematographs films are exhibited in the State. S. 3 of the Act prescribes that in every Dist the Dist-Mag shall be the Licensing Authority under, the Act. Sec. 4 of the Act provides that no person shall give on exhibition by means of a cinematograph except and in accordance with the Licence granted for the purpose. Sec. 5 confers power on the Licensing Authority to grant the licence. The said Section being relevant is extracted below:

5.Licence for Exhibition of Cinematograph Films.-(1) Any person, who intends to give exhibition by means of a cinematograph in a place shall make an application in writing to the licensing authority for a licence therefor, together with such particulars as may be prescribed.

(2) The licensing authority may, thereupon, after consulting such authority or officer as may be prescribed and subject to the provisions of this Act, and the rules thereunder, grant the licence to such person and on such terms and conditions and subjedt to such restrictions as it may determine.

(3) Where the licensing authority refuses to grant the licence, it shall do so by an order communicated to the applicant, giving the reasons for such refusal."

Sec. 10 of the Act provides appeal against the decisions under Secs. 5 & 9 of the Act. Sec. 10 reads as follows:

10.Appeal against decsions under Secs.5 and 9: Any person aggrieved by the decision of the licensing authority under Sec. 5 or Sec. 9 may within thirty days from the date on which such decision was communicated to him, and subject to such conditions as may be prescribed, appeal to the prescribed authority and where no such authority is prescribed, to the State Govt. The decision of the appellate authority on the appeal shall be final."

On the basis of the above provision, it is contended for the respondents that the refusal to re-grant the licence on the application made by the 1st respondent is an order in respect of which an appeal lies to the appellate authority under Sec. 10 of the Act. ft is not disputed that under Sec. 10 the prescribed appellate authority is the Divl Commr of the respective divisions. The further contention is that as the petitioner has not presented an appeal before the Divl Commr. the writ petition is not maintainable in view of Cl (3) of Art. 226 of the Constitution, according to which that no petition for the redress of any injury referred to in sub-cl(b) or (c) of cl(1) of Art. 226 shall be entertained if any other remedy for such redress is provided for by or under any other law for the time being in force.

Sri R.U. Goulay, learned Counsel for the petitioner, however, contended that an appeal lies under Sec. 10 of the Act against the impugned order for the reason that under the impugned order the application for regrant of the cinema licence of the petitioner has been refused and an appeal under Sec. 10 only lies against the order refusing to grant the licence and not against an order refusing to re-grant the licence. Therefore the question for consideration is whether an order refusing to re-grant a licence is a decision under Sec. 5 or not. In support of his submission, the petitioner pointed out that the conditions relating to the grant of licence are contained in Chapters IV, V, VI, VII and IX of the Rules. Chapter IV relates to the issue of licence to permanent cinemas, approval of location of permanent cinemas including grant of no objection certificate, Chap. V relates to the approval of the plan of the building; Chap. VI relates to approval of building construction and issue of licence; Chap.VII deals with the buildings and installations and Chap.IX deals with the subject of the fire fighting. He pointed out that all the above chapters of the rules apply to the grant of licence and as far as the re-grant of licence is concerned, Rule 85 contained in Chap. XI of the Rules is applicable and as separate provision has been made in Chap. XI for the re-grant of licence the order refusing to re-grant the licence does not fall under Sec. 5 of the Act or under Rule 85 of Chap. XI of the Rules.

I am unable to accept the contention urged for the petitioner. All the above rules have been framed by the State Govt in exercise of its power under Sec. 19 of the Act which confers power on the State Govt to frame rules on various matters including the conditions and restrictions subject to which licence may be granted and the procedure for grant of licence. The State Govt in exercise of its power has prescribed the conditions and restrictions subject to which licence may be granted and also subject to which licence may be re-granted after the expiry of the period for which the licence is granted in the first instance. The entire matter contained in the Chapters referred to above relate to the procedure to be adopted for the grant or re-grant of licence. The power to grant the licence is contained only in Sec. 5 of the Act. There is no other provision in the Act or the Rules which confers power to re-grant the licence. In the absence of any other power relating to re-grant of licence sub-sec (2) of Secition 5 is the only power under which the licence can be re-granted. Therefore it has to be held that power to grant a licence under Sec. 5 includes the power to re-grant the licence, though the conditions and restrictions which are applicable to the grant of licence are different from those applicable to the re-grant of a licence. Therefore any decision rendered by the Licensing Authority either granting or re-granting or refusing to grant or re-grant the licence is a decision under Sec. 5 of the Act and an appeal lies under Sec. 10 of the Act In this behalf it is significant to note that under Sec. 10 of the Act, the Legislature has used the word ''decision'' deliberately. If Sec. 10 had stated that an appeal lies only against the grant of a licence or refusal to grant a licence under Sec. 5 of the Act, then it would have been possible for the patitioner to contend that the Legislature has not provided an appeal in respect of an order re-granting or refusing to re-grant the licence. In view of the word ''decision'' used in Sec. 10 of the Act, any order passed by the Licensing Authority under Sec. 5 of the Act, whether granting a licence or refusing to grant a licence in the first instance, or a decision re-granting or refusing to re-grant the licence, constitutes a ''decision'' under Sec. 5 of the Act and, therefore, an appeal under Sec. 10 of the Act lies to the appellate authority.

In view of my conclusion that an appeal lies under Sec. 10 of the Act to the prescribed appellate authority against the impugned order, it follows that this Court has no jurisdiction to entertain the writ petition, in view of the amendment to Art. 226 of the Constitution. In view of my conclusion, it is unnecessary to consider the contention urged for the petitioner that the impugned order of the 1st respondent is illegal on the ground that the 1st respondent abdicated its power and simply gave a decision in accordance with the instructions issued by the State Govt.

For the reasons aforesaid, the Rule is discharged and the petition is dismissed. It is, however, made clear that the petitioner is at liberty to prefer appeal immediately before the appellate authority. The impugned order was made on 9-11-76 and the writ petition was presented within 7 days and the writ petition was pending till today. The petitioner may present his appeal immediately before the appellate authority and ask for condonation of delay in presenting the appeal in terms of proviso to subsec (2) of Sec. 58 of the Constitution (Forty Second Amendment) Act, 1976.