D.S. Mathur, J. - (1.) THIS is a petition under Article 226 of the Constitution of India by Balswarup Goel and his brother, Hira Lal Goel, for the issue of a writ of mandamus, or any other appropriate writ, to direct the Municipal Board, Ghaziabad, district Meerut, through its President, Respondent No. 1, not to enforce the bye -laws (Annexure "A" to the affidavit) framed by the Board to regulate the running of Cinemas within its territorial limits and to prohibit it from demanding or levying any permission fee for running the Cinemas. A request was also made to direct Respondent No. 1 not to implement its resolution dated 11 -1 -1957, whereby steps were to be taken for enhancement of the fee imposed under the bye -laws. The Petitioners have also made request for the issue of a writ of mandamus to direct the Commissioner, Meerut Division, Meerut, Respondent No. 2, to take steps under Section 301(5) of the U.P. Municipalities Act for rescinding the said bye -laws.
(2.) THE main question for consideration in the present proceeding is whether the Municipal Board, Respondent No. 1, had the power to frame the bye -laws contained in Annexure "A" to the affidavit and if the bye -laws so framed would be effective. If the bye -laws could be framed by the Board and are effective, it shall have the power to increase the amount of fees within permissible limits. A bye -law which is not effective or is against the provisions of the Act can be rescinded by the Commissioner. The Petitioners are proprietors of two cinemas, namely, Manohar Talkies and Mohan Chitralok, both situate within the municipal limits of Ghaziabad, district Meerut. They had obtained licences for running the above Cinemas from the District Magistrate, Meerut, Respondent No. 2 under the provisions of the Cinematograph Act, 1918 (Act II of 1918) read with rules framed under the said Act by the U.P. Government. These licences were renewed from year to year and are still in force. The bye -laws contained in Annexure "A" to the affidavit have not yet been repealed inspite of the suggestion made by the State Government; and the Petitioner have been called upon to pay the fees prescribed therein for running the Cinemas. Prior to 21 -12 -1945, the prescribed -fee was at the rate of Rs. 5 per year, but it was then enhanced to Rs. 100 per year or Rs. 10 per month or part thereof. In its meeting held on 11 -1 -1957, the Respondent -Board passed a resolution to move the District Magistrate for enhancement of the fees, as the fee already imposed was insufficient.
(3.) THE above facts were admitted by the Respondent -Board except for the allegation that it had no right to frame the bye -laws or to impose fees as prescribed therein. In order to meet the argument whether the fee imposed under the bye -laws was a fee or a tax, it was mentioned on behalf of the Respondent -Board that it rendered many services for which the fee had been imposed. It was further pleaded that Petitioner No. 2, namely, Hira Lal Goel, had filed a suit in the Court of Munsif, Ghaziabad, to challenge the validity of the bye -laws being contrary to G.O. No. 3087/XI -47 dated 20 -6 -1947, but the suit was dismissed. It was thus contended that Petitioner No. 2 at least was bound by this decision and could not reagitate the same matter. In case the writ petition was moved by Hira Lal Goel alone, this point could have been given importance in not exercising the discretion in his favour; but the present petition has been moved by Bal Swarup Goel also, who would not be bound by that decision. If the bye -laws and the resolution are set aside, or are held not to be enforceable not only the Petitioner No. 1 but also owners of all the Cinema Houses will become entitled to the benefit of the order to be passed by this Court. It will, therefore, be proper not to dismiss the petition as far as Hira Lal Goel is concerned on the above preliminary point.;