SHINGHAL, J. - (1.) THE petitioner firm Messrs. Vishnu Talkies, has constructed a permanent building at a distance of about 3 furlongs from Abu Road railway station for exhibiting cinematograph pictures and possess the necessary licence therefor. THE firm feels aggrieved because a [temporary licence has been granted to Dhannalal (Respondent No. 4) for exhibiting cinematographs at the junior Railway Institute at Abu Road and it has therefore moved this Court under Art. 226 of the Constitution for quashing the licence and the relevant notification under which the films are being exhibited there. A prayer has also been made for the issue of a mandamus against the State, the Deputy Secretary concerned and the District Magistrate for their cancellation.
(2.) THE facts are mostly not in dispute and we ma) therefore state them at the outset. THE Western Railway has a club known as the Junior Railway Institute, for its subordinate employees. THE Institute has two large rooms and a small cabin, with the necessary compound, which provide accommodation for exhibiting films, but there is admittedly no permanent building of the Institute for that purpose within the meaning of r. 2 (i) (xv) of the Rajasthan Cinemas (Regulation) Rules, 1959 hereinafter referred to as the Rules. THE petitioner's partner Manilal Panchal had taken these premises on lease from the Institute and used to exhibit films there upto 1958. In the meantime, the petitioner set up its present permanent building for cinematograph exhibition and has been running its business in the new premises since 1958 under licences which are renewable from year to year. On April 27-1960 the President of the Institute invited tenders for exhibiting cinematographs in the Institute premises for 1960-61. THE petitioner raised a protest and approached the authorities concerned stating that as there was a permanent cinema at Abu Road, a temporary licence could not be granted under rules 63 and 74 (xii) of the Rules within a radius of five miles. THE State Government thereupon issued letter Ex. 3 on May 2, 1960 to the General Manager Western Railway, i Bombay supporting the petitioner's contention and pointing out that the Rules did not allow the establishment of a temporary or a touring cinema at a place where a permanent cinema was already in existence. A similar communication (Ex. 4) was issued by the District Magistrate to the General Manager on May 7, 1960. However the Government later on issued a notification (Ex. 5) on June 16-1960 permitting Dhannalal to exhibit films at the Institute for a period of three months from that date and directing the Magistrate, who was the licensing authority to issue a temporary licence accordingly. As the notification shows, this was purported to be done under the provisos to rules 63 and 74 (xii) of the Rules. Further, the Government exempted, under sec. 11 of the Rajasthan Cinemas (Regulation) Act, 1952 the exhibitions to be given by Dhannalal from the operation of the provisions of part IV of the Rules. Dhannalal has therefore been exhibiting films since then as further temporary licences have been granted to him from time to time. It has been pointed out that in reply to the petitioner's protest the District Magistrate has expressed in his letter (Ex. 11) dated July 3, 1960, his inability to help the petitioner because he could not withhold the issue of the licence in face of the Government order. THE petitioner claims that its own cinema is adequate to meet the requirements of the population of the town, that the temporary licence has been granted in violation of rules 63 and 74 (xii) of the Rules that the powers given under the law have been exercised in a discriminatory manner that no hearing was given to it before granting the temporary licence in question and that no grounds have been mentioned for granting the licence. THE petitioner has also challenged the vires of sec. 11 of the Act and the provisos to rules 63 and 74 (xii) of the Rules. The respondents have pointed out in their written statements that the Institute has been showing cinema films for the last 20 years mainly to benefit the railway employees and that the petitioner himself held licence for that purpose from 1952 to 1958. The main defence is that the petitioner could not possibly claim a monopoly to run the cinema, and that the State Government having exercised its discretion under rules 63 and 74 (xii) of the Rules to grant the temporary licence, there is no occasion for the filing of this petition. The petitioner's claim that its cinema was sufficient to meet the requirements of the town has also been challenged. It has been strenuously urged by the learned counsel for the petitioner that since there was a permanent cinema at Abu Road, the Government could not permit the exhibition of films for the trade purposes by a temporary cinema and that sub-rule (3) of the Rule only provides for the grant of a temporary licence for exhibition of films by means of a touring cinematograph or in respect of special cinematograph exhibition and no other. The argument is however not tenable. While sub-rule 3 (3) does not appear to be suitably worded and might appear to lend support to the argument of the learned counsel for the petitioner at first sight there can be no doubt that if the sub-rule is read along with rules 63 and 74 (xii) it cannot be held that the power to issue a temporary licence is restricted to a touring cinematograph or special cinematograph exhibition. Rule 2 contains definitions of "temporary building", "temporary enclosure", "temporary cinematograph" and "open air cinema", and according to sub-rule (3) of rule 3 a temporary licence can be granted in respect of (i) a temporary building or (ii) any place. Temporary building is a building which is not a permanent building and may consist of a booth or tent or other similar structure; so a temporary licence can be granted for a temporary building. A temporary enclosure touring cinematograph and open air cinema are "places in which cinema can be exhibited, particularly when they are contra-distinguished to a temporary building. A temporary licence can therefore be granted for exhibition at these three places also. This interpretation of the provisions of rule 3 (3) is further borne out by reference to rules 63 and 74 (xii ). The provisos to these rules authorise the State Government to permit the exhibition of films for trade purposes by temporary touring or open air cinema within five miles radius of a permanent cinema and thus it becomes all the more clear that the intention is to permit the grant of licences not only in respect of touring and open air cinema but also for temporary buildings. Next it has been argued that it was for the licensing authority to decide whether it would grant a temporary licence to respondent Dhannalal and that since that authority had conveyed in its letter (Ex. 4) dated May 7, 1960 addressed to the General Manager of the Railway that if the institute thought of erecting a temporary cinema hall it would do so at its own risk and incur "fruitless expenditure", the discretion of that authority had been exercised in the matter and it was not open to the State Government to foist its own order thereafter directing the authority to issue a temporary licence for the permises in question. According to sec. 4 of the Act, the licensing authority is the District Magistrate, and it has therefore been contended that the impugned Notification (Ex. 5) of the State Government dated June 16, 1960 is illegal. This argument is further sought to be supported by reference to the District Magistrate's letter (Ex. 11) dated July 3, 1960 in which he informed the petitioner that in view of the Government order he was unable to withhold the issue of the licence for exhibiting films at the Institute. An inference is drawn from this letter that left to himself the District Magistrate would not have granted the licence. Commissioner of Police, Bombay Vs. Gordhandas Bhanji (1) has been cited to support of this contention. The argument is however untenable. . Sub-sec. (2) of sec. 5 of the Act provides that in granting a licence, the licensing authority shall be subject to "the control of the State government. It is obvious therefore that the State Government has also been given the power to control the grant of licences under the Act and there is nothing wrong if the Government chose to exercise its control in this case by directing the licensing authority to grant the temporary licence to Dhannalal. There is no requirement of law that the State Government's control cannot extend to the issue of a direction for the grant of licence in a specific case and once that control has been exercised, it is obligatory on the part of the licensing authority to carry it out. It is therefore a matter of no consequence what the District Magistrate thought of the merits of the application for the grant of the licence, for the legislation has placed him under the State Government's control in the matter. That the order of the licensing authority was not required to be final in such cases, is borne out also by the fact that sub-sec. (3) of sec. 5 of the Act provides that a person, aggrieved by the decision of that authority refusing to grant a licence to him, may appeal to the State Government which may thereupon make such order in the case as it may think fit. The argument that the State Government made an unwarranted interference with the functioning of the licensing authority is therefore untenable because the scheme of the law places the Government in ultimate control of the matter. It may also be mentioned that the provisions of sec. 5 (3) of the Act are similar to those of sec. 5 (3) of the Cinematograph Act, 1918 and the learned Government Advocate has invited attention to Bharat Bhushan Vs. Cinema and City Magistrate (2) and Karnati Rangaih Vs. A. Sultan Mohiddin and Brothers, Tadipatei (3), which were cases in which it was decided that the State Government had the power to grant a licence irrespective of the view of the licensing authority. In Bharat Bhushan Vs. Cinema and City Magistrate, it has been held that the control envisaged in the section is not confined to the issue of mere general direction and that it includes an interference on the part of the State Government with the individual decision of a particular case by the District Magistrate. In Karnati Rangaiah Vs. A. Sultan Mohiddin and Brothers, Tadipatei, it has been held that District Magistrate cannot be said to be the statutory authority solely entrusted with the power to grant or refuse a licence and that the State Government can give direction in regard either to the "persons" or the "terms, conditions and restrictions. " Their Lordships considered Commissioner of Police, Bombay Vs. Gordhandas Bhanji and distinguished that case on the ground that in that case the Commissioner of Police was the only person vested with the authority to grant or refuse a licence for erection of a building and the State Government had no power to interfere with that authority. We are in respectful agreement with the view expressed in both these cases. We may here refer to another argument of Mr. Murli Manohar Vyas that the grant of the temporary licence could not have been made by the State Government without giving a hearing to the petitioner. Since, however, the power of the State Government under sec. 5 (3) of the Act is of an administrative character, we are unable to agree that the petitioner can make a grievance because he was not heard before granting the licence to respondent Dhanna Lal. There was no obligation cast on the State Government to act in judicial or quasi-judicial manner while considering an application for the grant of a temporary licence to exhibit cinematograph and the grievance of the petitioner is therefore unjustified. For the same reason, it is futile to argue that the State Government did not give the reasons while granting the temporary licence in question. The validity of the proviso to Rules 63 and 74 (xii) of the Rules has also been challenged before us and it has been argued that the effect of the proviso is to give unfettered and arbitrary power to the State Government in the matter of granting licences so that the provisions of the Rules have been rendered nugatory. Here again we are unable to agree. In our opinion, the Rules would have been too rigid and operated harshly even in deserving cases if the proviso had not been added to them. A licence to a touring cinematograph could not have been granted in a place where a permanent cinema was in existence under any circumstance. There is nothing wrong if in such circumstances the State Government has been given the power under the two provisos to permit the exhibition of films by temporary, touring or open air cinemas within five miles radius of a permanent cinema. If at all, such a provision is salutary. The learned counsel for the petitioner has also addressed us regarding the vires of sec. 11 of the Act which authorises the State Government to exempt, subject to such conditions and restrictions ate it may impose any cinematograph exhibition or class of cinema to graph exhibitions from any of the provisions of the Act or the Rules made thereunder. It has been argued that this excessive power has not been canalised and it can be abused to the detriment of the health and safety of the persons visiting a cinema if the exemptions are granted in indiscriminately. It has been pointed out that in the instant case the State Government had exempted the cinematograph exhibitions of respondent Dhanalal from the operation of part IV of the Rules and that even these provisions of that part which related to protection against inflammable articles and the provision of fire appliances were done with so as to expose the visitors to all sorts of risk. The argument is however of no consequence now that the period of three months for which the exemption was granted has expired and there is admittedly no renewal thereafter. Lastly it has been argued that the exercise of the discretion to grant a licence to respondent Dhanalal was at any rate, mala fide. In this connection it has been urged that the District Magistrate as well as the State Government had once refused to grant the licence and that there was subsequent change of a circumstances to justify the issue of the licence within a few months. Further it has been argued that there was no justification for the State Government to exempt Dhannalal respondent from the provisions of Part IV of the Rules at the risk of those who visited the cinema exhibitions given by him and that there is also no justification for the continued grant of renewals of the licence. We are, however not convinced that these reasons should necessarily lead to the inference that the State Government acted in a mala fide way in granting the temporary licence in favour of the Institute. As has already been mentioned, the Junior Railway Institute has been in existence for a long time and functions as a club for the benefit of the low-paid employees of the Western Railway. The agreement (Ex. A. 5) executed by respondent Dhannalal with the Institute authorities for the exhibition of films shows that the films are exhibited to the railway staff at concession rate which are almost half the normal rates and is also bound to exhibit good films with the approval of the President of the Institute. If a temporary licence has been granted for the benefit of the Institute in such circumstances it cannot be said that the State Government has acted in a mala fide way in granting it. Besides the petitioner can hardly question the propriety of granting the permit to the Institute when he himself exhibited films under almost similar circumstances at the same Institute for almost six years. There is thus no force in any of the argument advanced by the learned counsel for the petitioner. He as the holder of a permanent cinema could hardly claim an exclusive right to show the films and there is no occasion for him to feel aggrieved if a temporary licence has been granted by the State Government for the benefit of the Institute for the time being. The petition is, therefore dismissed with costs and the rule is discharged. The hearing fee shall be Rs. 100/- to be shared by respondents Nos. 1, 4 and 5. . ;