Decided on February 06,1974

K V S IYER Appellant


- (1.) Two cinematograph operators, running two theatres (one of them a permanent theatre and the other a temporary one) in Ettumannoor Panchayat area, unhappy over the decision to issue a 3rd licence granting permission to the 5th respondent to operate cinematograph exhibitions in S. No. 221/1A.B. of the Ettumannoor Village are before me challenging the said decision. This decision was taken by the Ettumannoor Panchayat, the 3rd respondent, as per its resolution, Ext. P6, dated 30-3-1973 which was upheld in revision by the 2nd respondent, District Collector, as per his proceedings, Ext. P7 dated 13-6-1973 and on further revision, by the 1st respondent, State, as per their order Ext. P8 dated 12-10-1973. Earlier by Ext. P4 proceedings dated 13-10-1972 the 4th respondent, the Executive Officer, had refused to grant permission sought for by the 5th respondent. This was reversed by the 3rd respondent Panchayat as per its resolution, Ex. P5, dated 23-11-1972. It appears that the petitioners before me took up the matter in revision before the 2nd respondent, and that he remanded the matter to the 3rd respondent by order dated 7-3-1973. Ext. P6 is the resolution passed after the remand.
(2.) The main point urged by the petitioners' learned counsel is that Exts. P6 does not give any reason for the decision and that the reasons were given by the resolution dated 24-4-1973 which was communicated to the Revisional authority, the 2nd respondent, on 25-4-1973. In the counter affidavit filed by the 5th respondent it is stated that he, after Ext. P6 resolution was passed on 2-4-1973 and on 13-4-1973 requested the Panchayat to write a speaking order, and that by the resolution dated 24-4-1973 the 3rd respondent had only decided to incorporate the reasons which weighed with them in the decision they had taken earlier. The 4th respondent, Executive Officer, has sworn a counter affidavit on behalf of himself and the 3rd respondent, Panchayat wherein it is stated, that Ext. P6 resolution was passed after a consideration of all the necessary factors, and that when the 5th respondent brought to the notice of the Panchayat, the fact that the reasons which weighed with the Panchayat were not given in Ext. P6, it was remedied by passing another resolution on 24-4-1973. Copy of this resolution of 24th April 1973 is Ext. R5(2) produced by the 5th respondent along with his additional counter affidavit. The complaint of the petitioners is that they had no notice of the meeting of the Panchayat held on 24-4-1973 when Ext. R5(2) resolution was passed. It is on that basis that Ext. P6 is attacked. It is the petitioners' case that the reasons given in Ext. R5(2) should, on that account be discarded. The further argument is that the Revisional authorities were called upon to decide only the legality of Ext. P6 resolution, and that being not a speaking order, those authorities, respondents 1 and 2 committed an error in exercise of jurisdiction in confirming Ext. P6 resolution. However, there was no case before me, (and possibly there could be no case before me, (and possibly there could be none in view of the wide language of S.5(8) and S.12 of the Kerala Cinemas (Regulation) Act, 1958, for short, the Act) that the Revisional authorities, respondents 1 and 2, exceeded or failed to exercise their jurisdiction in passing Exts. P7 and P8 orders, or that they were incompetent to make those orders. It may also be observed that it was the petitioners who invoked the revisional jurisdiction, and that having invoked that jurisdiction, which on the language of the provisions is not in any way circumscribed, the petitioners are not entitled to question the way or the manner, in which it was exercised, in proceedings under Art.226 of the Constitution, unless it be on the ground that all the authorities, original, appellate and revisional, failed to consider the relevant factors required to be considered under the statute. My first endeavour, therefore shall be, to examine whether in Ext. P8 order the 1st respondent has adverted to the relevant considerations, or whether they had been carried away by irrelevant materials.
(3.) S.5 of the Act dealing with the restrictions on the powers of the licencing authority consists of two parts. Sub-s. (2) of that section forbids grant of licence unless the authority is satisfied that conditions prescribed in clauses (a) and (b) of that sub-section are fulfilled. The proviso to that section requires that before refusal the authority shall give the applicant an opportunity to show cause against refusal. Sub-s.(2), standing by itself, therefore, recognises the right of every applicant, who satisfies the conditions specified in clauses (a) and (b) thereof, to obtain a licence. The main question is whether this right is further cut down by sub-s.(1) of S.5 which specifies the matters the licencing authority shall have regard to, and if so, to what extent. In Krishan Kumar v. State of Jammu and Kashmir ( AIR 1967 SC 1368 ) the Supreme Court said: "A combined reading of clause.(1) and (6) of Art.19 makes it clear that a citizen has a fundamental right to carry on any trade or business, and the State can make a law imposing reasonable restrictions on the said right in the interests of the general public. It is, therefore, obvious that unless dealing in liquor is not trade or business, a citizen has a fundamental right to deal in that commodity." In other words in India the grant of a licence to carry on a trade or business is not a conferment of a privilege by the State; and refusal of licence in that respect is not a denial of a privilege, but denial of a fundamental right guaranteed by the Constitution. With reference to S.5(1) of the Act, my learned brother Poti J. in Subramaniam v. Sreenivasan ( 1971 KLT 699 ) said as follows: "These are apparently restrictions intended in the interest of the general public. These restrictions act as restrictions on the exercise of the fundamental right of the exhibitor. They do not confer a right on any other member of the public other than the general right as one of the public to object to the grant. It cannot be said that under the law of the land one exhibitor, could have a grievance if another starts similar business. In fact both have the fundamental right to carry on their business. By reason of the regulation by Act 32 of 1958 no personal right is obtained by the plaintiff." I am in respectful agreement with what is stated above. The fact, that in Subramoniam's case, the rival exhibitor approached the court by filing a civil suit does not in any manner, make any difference, for the learned Judge, in the above extracted passage was considering the question whether S.5(1) of the Act confers any persona] right on a rival exhibitor.;

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