R.M. Sahai, J. - (1.) Many times arbitrary: decisions by the authorities entrusted with responsibility of granting or renewing licence either because of personal prejudice, political pressure or for extraneous consideration result in financial loss, humiliation and torture to the licensee. But here is a case where unreasonable and harassing attitude adopted by the District Magistrate/Licensing Authority, Varanasi, under the Cinematograph Act, entailed heavy loss not only to petitioners but the State Government as well. Things went on smoothly for Bharti Cinema, Varanasi run by petitioners who were its licensee -tenants till letter dated 18th Jan. 1979 was received by their attorney (hereinafter referred as petitioner) from District Magistrate intimating them under R. 38 of the U.P. Cinematograph Rules, 1951, that Additional Entertainment Tax Commissioner, Mobile Squad, along with Entertainment Tax Officer found in inspection in the afternoon of 2nd Jan. 1979 that the auditorium had only six latrines when keeping in view the number of seats it should have been seven. It was also found that the chairs in balcony class were put on wooden planks which was again contrary to Cinematograph Rules as use of such inflammable material was irregular. Petitioner was directed to remove defects within period of three weeks. On 9th Feb. 1979 petitioner sent reply to the notice received by him and intimated therein that construction of 7th latrine has already started. In respect of second defect noticed by the Entertainment Tax Authorities, it was pointed out that practice of putting chairs of balcony class on wooden planks was continuing since 1940 and similar objection was raised in 1975 when after inspection etc. the petitioner was permitted to continue the same subject to certain safeguard which were accepted by the Chief Fire Officer as well. It was also mentioned in the letter that as the dispute between petitioner and the owner in respect of cinema was pending in the highest court it was not possible for them to carry on any alteration.
(2.) It appears the petitioner approached State Government as well which by order dated 26th April 1979 directed the licensing authority to renew the licence for six months. Consequently the licensing authority intimated petitioner on 9th May 1979 that in view of government's order his licence was being renewed but he should in the meantime get, the cinema building in accordance with Rr. 2(viii), 8(viii), and 8(xi) of Cinematograph Rules 1951. To this a reply was sent by petitioner on 15th Oct. 1979. It was pointed out that cinema was constructed before enactment of Rules in 1951 and same was running since then, after renewal of licence each year, after due inspection. It was pointed out that building was constructed with bricks, mortar and cement and other non -inflammable material and was in conformity with R. 2(viii) of 1951 Rules. It was also pointed out that the distance between floor of auditorium and ceiling or any covering immediately above it was not less than 12 feet and, therefore, it was in conformity with R. 8(viii). In respect of R. 8(xi) it was pointed out that floor of balcony having been made of cement concrete it could carry 120 pounds live -load per sq. feet, which had been agreed by the licensing authority. The reply further stated that on the cemented floor only seats had been fixed on wooden planks. This had been examined by Fire Officer who approved and issued a no objection certificate. And as landlord of premises had filed an appeal in Supreme Court, therefore, pending its decision it was not possible to make any material change in the building. The petitioners however, agreed to cover wooden planks with tin sheets for satisfaction of authorities. It appears that licensing authority forwarded these papers to the State Government, which in its turn sent a radiogram on 2nd Nov. 1979, followed by letter dated 3rd Nov. 1979, directing the District Magistrate to intimate petitioners that the licence could be renewed for a period of three months during which time the petitioners should get the wooden planks covered by galvanised tin sheets, to make it fireproof. On 21st Jan. 1980 petitioners informed the licensing authority that he has complied with the direction issued by him on 28th Nov. 1979, issued in pursuance of letter of the State Government and he was requested to inspect the same and renew the licence up to 21st March 1980. In between, the landlord appears to have approached the civil court and obtained an injunction restraining the petitioners from making any change in the balcony. Information of it was also given to District Magistrate who sent a show cause notice on 30th Jan. 1980 to the petitioners to show cause as to why petitioners put tin sheets on balcony despite an injunction from civil court. It was replied on 1st Feb. 1980. It was pointed out that petitioners never refused to receive any injunction through Commissioner as the petitioners' attorney had left for Calcutta on 21st Jan. 1980 due to death of his uncle and work of covering balcony with tin -sheets to make it fire -proof had been completed on or about 18th Jan. 1980, intimation of which was sent to licensing authority on 21st Jan. 1980. It was also pointed out in letter that petitioners had come to know that licensing authority had sent a memo to the P.W.D. and Fire Officer for inspection of cinema to give their reports about the balcony being able to support 120 pounds weight per sq. feet and whether balcony was fire -proof or not. Petitioners pointed out that such inspections were generally made when there was any major addition or alteration in the building. Since there had been no major alteration the inspection of cinema was due in March 1980. It was submitted that inspection was neither necessary nor required under rules, specially when detailed inspection had been made by all concerned departments as well as various administrative authorities, including the licensing authority. In the end it was prayed that as petitioners had complied with directions issued to them they were entitled to renewal of their licence with effect from 3rd Feb. 1980, as they had already deposited licence fee for the period up to 31st March, 1980.
(3.) Injunction granted by civil court was vacated on 25th March 1980. Chief Fire Officer, who had made inspection in pursuance of direction by licensing authority intimated him that arrangements made by management of cinema were adequate, proper and did not pose fire hazard. Request for renewal of licence, therefore, was repeated by petitioners on 31st March 1980. On 17th April 1980 petitioners also sent a letter to Chief Secretary Government of U.P. that due to pressure of a local member of Legislative Assembly licence of petitioners' cinema was not being renewed, although he had complied with all the objections, raised by licensing authority. On 21st April 1980 the P.W.D. submitted its inspection report on the basis of inspection on 2nd Feb. 1980, 8th March 1980 and 17th March 1980, which, according to the petitioners were made without any notice to them. It was pointed out that wooden structures on which chairs had been fixed, could not take prescribed load, although it has been explained in the writ petition that this report was not correct, as the test was carried on by putting load on the wooden structures and while doing so the legs of wooden structures had been removed. On 20th June 1980 a report was submitted by Addl. District Magistrate. He has narrated developments starting from 30th March 1978 on application of petitioner till 11th April, 1980. From this report it appears that after Chief Fire Officer had intimated the licensing authority on 25th March 1980 that by putting galvanised sheets the balcony had become fire -proof. Another report was obtained on 11th April 1980 which was contrary to it. The report has not been filed. But it does indicate that someone was twisting hand from behind. The Additional District Magistrate did not agree with report of P.W.D. dated 21st April 1980 that wooden structure of balcony was incapable of bearing 120 lbs. weight. It was pointed out that balcony was of cement and mortar. This aspect was not taken into consideration by the P.W.D. He, therefore, recommended that fresh comments be obtained. Apart from these aspects the Additional District Magistrate also recommended to the licensing authority that if considered proper it was better if both parties were summoned and the dispute was got settled. The reference to other party obviously is to landlord -owner. It indicates that even the authority felt that petitioner was being unnecessarily harassed and this was due to landlord -owner. Another reminder was sent to the licensing authority that due to non -renewal of cinema licence, which was pending for more than six months petitioners as well as State Government were being subjected to heavy loss and, therefore, an early decision may be taken and if decision was likely to take some time then a short -term licence may be granted to them. In another letter sent on 10th Sept. 1980 it was suggested that in case there was difficulty in granting a licence for entire cinema then for time being the licence may be granted for ground -floor and the balcony class may be closed till further decisions. Request was repeated on 24th Sept. It was also suggested that fresh inspection may be done by the P.W.D. Having failed in his efforts with the licensing authority the petitioners made a representation to the Finance Minister bringing to his notice the circumstances in which licence was not being renewed due to behind the scene activity of his landlord, who was instrumental in all this as a result of his failure to eject petitioners from the premises. The petitioner's effort yielded result and on 7th Oct. 1980 the Additional Secretary State Government issued a letter to the District Magistrate, Varanasi in respect of renewal of licence of the petitioner's cinema. It was pointed out in this letter that some of the defects in respect of contravention of rules were not correct and so far as load testing etc. was concerned, a report may be obtained by P.W.D. and may be submitted to the Government within 15 days. But what was material in the letter was that the licensing authority was directed to ascertain through P.W.D. if the concrete of balcony was able to sustain 120 pounds weight per sq. feet, excluding the wooden structures. Further licensing authority was directed to renew the licence immediately, of the ground floor excluding balcony and intimate the Government. The Government, therefore not only accepted the claim of petitioners that licence for ground floor be renewed, but it also agreed to that part of report of Addl. District Magistrate that earlier testing, carried on by P.W.D. on wooden structures, was not proper and a fresh load -testing may be carried on of the same. On 5th Nov. 1980 petitioners again moved the licensing authority that the matter relating to grant of cinema licence was being unnecessarily delayed and request was made for personal inspection so that the licensing authority may know for himself about the balcony of the cinema.;