Sinha, J. - (1.) This application relates to the granting of a license and to the renewal thereof, of a cinema house known as the "Ashok Cinema" situated in Howrah. This cinema has been a fruitful source of litigation between the parties and from time to time there have been rival claims in respect of its ownership and occupation. In this application we are not concerned with a detailed consideration of such litigation. It is sufficient to state the brief facts. The petitioner, Protap Properties Private Ltd., is the landlord of the house in which the cinema is situated. One Durga Pada Mukherjee was his tenant. He was carrying on a cinema business therein known as the "Ashok Cinema". A license for that cinema was originally issued in the name of Durga Pada Mukherjee, for the year 1950 and it was renewed annually from 1951 to 1955. It appears that Sri Mukherjee entered into a partnership in 1955 and the partnership was later converted into a Private Limited Co. In 1956, a license was issued in the name of Hiralal Sanyal and this again gave rise to litigation, including a number of suits. In the year 1957, a number of applications were received, namely, by Hiralal Sanyal, Bachhram Chamaria and Sri Mukherjee. In view of the pending litigations, the District Magistrate was not inclined to grant any license For 1957. Subsequently however, he reopened the matter and a license was granted for the year 1957 to Durga Pada Mukherjee. Against this, there was an appeal to the Commissioner, Burdwan Division, who set aside the order. Durga Pada Mukherjee thereupon appealed to the State Government and It appears that he was allowed to continue running his cinema. On 2-11-1957 Durga Pada Mukheriee died on 4-11-1957 the respondent No. 3 Kanika Mukheriee, widow of Durga Pada Mukherjee, made an application under Rule 19 of the West Bengal Cinemas (Regulation of Public Exhibition) Rules 1956 describing herself as successor-in-interest of her husband. Thereupon the District Magistrate renewed the license. Thereafter, two applications were made to this Court, numbered C. R. Nos. 544 and 345 of 1958. On 16-12-1958 I made an order quashing the order of the learned District Magistrate dated 30-12-1957/ 2-1-1958. This was done in C. R. No. 544. When the other rule, namely, C. R. No. 545 of 1958 came up for hearing, I directed that the learned Magistrate should hear all the parties and thereupon decide the question. Upon that, the learned Magistrate gave notice to all parties, heard them and made an order renewing the license of the respondent No. 3 for the year 1958-59. This means that the efforts on behalf of the other parties, including the petitioner, to get a license in respect of the said cinema have become infructuous.
(2.) In this Rule I permitted only two points to be raised. They are as follows: 1. That the West Bengal Cinemas (Regulation) Act, 1954 confers no power to renew an existing license or a license that has expired, and that any order of renewal is invalid. 2. That the provisions of Rules 6 and 19 of the Rules framed under the said Act are ultra vires inasmuch as they provide for renewal of a license.
(3.) In fact, the two points resolve into one, which is the question as to whether under the Act and the Rules, it is permissible or constitutional to provide for the renewal of a license for a permanent cinema house. According to Mr. Dutt appearing for the petitioner, there is no provision in the Act empowering the Licensing Authority to grant such a renewal, and the provisions in the Rules empowering such renewal are ultra vires the provisions of the Act and as such void. This is a point of importance, because ever since 1918, when a statute was introduced for regulating cinemas, and uptil now, renewals of licenses are regularly granted. As will be found, the relevant statute aid not, and does not now, in its body, contain any express provision empowering the Licensing Authority to make an order renewing a license for a permanent cinema house. Naturally, the point has to be decided authoritatively, as it affects numerous licensees who have renewed their licenses from year to year in the customary fashion. In order to decide this question we are concerned at the moment directly with the 'West Bengal Cinemas (Regulation) Act 1954', being the West Bengal Act XXXIX of 1954. This Act was passed by the West Bengal Legislature and received the assent of the President on 29-12-1954. It came into operation sometime in 1955. In respect of this Act, there have been two amendments. The first is the 'West Bengal Cinemas (Regulation) (Amendment) Act, 1957 being West Bengal Act XVII of 1957 and the other is the 'West Bengal Transferred Territories (Assimilation of Laws) Act, 1958' being West Bengal Act XIX of 1958. This Act as amended, is to be read with the 'West Bengal Cinemas (Regulation of Public Exhibition) Rules 1956 which have been drawn up, in exercise of the powers conferred by Section 9 of the 1954 Act, namely, Act XXXIX of 1954. I shall first of all consider Act XXXIX of 1954. Section 4 of the Act provides for the appointment of a Licensing Authority. This is the District Magistrate, within whose jurisdiction the place where the exhibition by cinematograph is proposed to be given, is situated. The State Government, however, can appoint other Licensing Authorities. Section 5 lays down that the Licensing Authority shall not grant a license under the Act unless it is satisfied that the Rules made under the Act have been substantially complied with and the prescribed precautions have been taken in respect of cinema houses, providing for the safety of persons attending exhibitions therein. It also lays down how licenses are to be given, on terms and conditions as may be prescribed. Section 9 grants power to the State Government to make Rules. Sub- section (1) of Section 9 empowers the State Government, by notification in the Official Gazette, to make Rules for the purpose of carrying out the provisions of the; Act. Sub-section (2) gives illustrative examples of such powers and provides for various contingencies, The relevant clause is Clause (e) of Sub-section (2) which runs as follows: "(e) the payment of fees for a license under this Act or for a renewal of such license or for an appeal under Clause (a) of Sub-section (4) of Section 5 or for an application for revision under Sub-clause (i) of Clause (b) of that sub-section".;