Bapna (Actg.), C. J. - (1.) THIS is a petition under Art. 226 of the Constitution of India. It was presented on 22nd August, 1956, before the Judicial Commissioner, Ajmer, and has come to this Court in view of the re-organisation of the States.
(2.) THE case of the petitioner Brij Niwas Das is that he carries on the business of exhibiting films in the premises called the Royal Talkies at Beawar. THE Chief Commissioner of Ajmer State issued a notification under sec. 12 (4) of the Cinematograph Act, 1952 (Act No. XXXVII of 1952)on 23rd November, 1954,directing every person holding a licence under Part III of the said Act in the State of Ajmer to abide by the following conditions with effect from the 1st day of December, 1954:- - 1. THE licencee shall so regulate the exhibition of cinematograph films that at every performance open to the public, approved films are to be exhibited in relation to other films at every such performance being in the same proportion as one is to five or the nearest lower or higher approximation thereto. 2. Only such films produced in India as are certified by the Central Government with the previous approval of the Film Advisory Board, Bombay, to be scientific films, films intended for education purposes, films dealing with news current events or documentary films shall be deemed to be approved films for the purposes of these directions. 3. Nothing contained in these directions shall be construed as requiring the licensee - (a) to exhibit at any performance more than 2,0x0 feet of approved films of 35 mm size or the corresponding footage of approved films of 16 mm size; or (b) to exhibit any approved film for more than two weeks continuously; or (c) to re-exhibit any approved film which has been shown for two continuous weeks; or (d) to exhibit approved films to the full extent indicated herein before in the event of sufficient number or length of approved films not being available for the time being. 4. For the purpose of computing the corr esponding footage of films of 16mm. size in rela tion to films of 35mm. size, 400 ft. of films of 16 mm. size shall be deemed to be equivalent to 1000 feet of films of 35 mm. size. On 24 November, 1955, the District Magistrate sent to the petitioner a revised statement of conditions of the licence, purporting to act under the notification and directed that a change had been made in condition No 22, which should be strictly complied with. THE revised condition No. 22 is in identical terms with the Chief Commissioner's notification. The case of the petitioner is that the films referred to in condition No, 22 are normally available for the Ajmer State from the Films Division, Ministry of Information and Broadcasting, Government of India, Lucknow Branch. The system of obtaining such films is that for a year beginning on 1st April and ending on 31st March next year, the licencee has, as a matter of compulsion, to enter into a so-called contract with the said Lucknow Branch who charge a rental from the so-called purchaser at rates which the Films Division may be pleased to prescribe. On 2nd March, 1956, the Films Division, Lucknow Branch, wrote a letter to the petitioner (Document No. III) that since exhibition of 'approved Films' was compulsory under the terms of the licence granted to the petitioner, it was presumed that the petitioner would require the Films Division to continue to supply 'approved Films' after 31st March, 1956. The petitioner was informed that a rent of Rs. 10/- per week per film of approximately 1000 ft. would be charged with effect from 1st April, 1956, on the presumption that the petitioner's average weekly collections exclusive of Entertainment Tax during the period from 1st July, 1954, to 30th June, 1955, did not exceed Rs. 1000/ -. The Films Division reserved the right to revise the rental retrospectively in case the presumption of the income, as aforesaid, was found to be incorrect. Intimation was given that the security deposit of Rs. 90/-was retained for the future arrangements. The petitioner informed the Films Division, Lucknow, that under his constitutional rights he was not bound to enter into any contract with the Films Division, or to accept any films for which the Films Division was going to make charges. It was alleged that the Films Division nevertheless continued to send the films to the petitioner, and on 25th July, 1956, demanded a sum of Rs 274/1/- on account of the supply of approved films from 3. 3. 56 to 5. 8. 56 (Document No. IV ). The petitioner denied the claim of the Films Division, Lucknow Branch, on the ground that the supply of the films was made without any requisition, and was voluntary, and refused to pay any charges. The Films Division again made a demand of Rs. 274/1/- on 2nd August, 1956, intimating that if the amount was not paid, further supply of films would be suspended, and a copy of this letter was sent to the District Magistrate, Ajmer (Document No VI ). The District Magistrate, Ajmer, on the 14th August, 1956, drew attention of the petitioner to the revised conditions laid down on 24th November, 1955, as also to the letter of the Branch Manager, Films, Division, Lucknow, and intimated that if the Films Division stopped the supply of the approved films, it may result in the cancellation of the petitioner's licence for breach of the condition about screening of approved films. The petitioner alleged that according to condition No. 15 inserted in his licence, he is required to exhibit slides relating to Employment Exchange, Red Cross, and other Government patronised institutions without payment, and a refusal to do so similarly draws a threat of the cancellation of the licence for breach of a condition. It was urged that the provisions, of sec. 12 (4) of the Cinematograph Act, 1952, were unconstitutional and ultra vires, as they infringed the fundamental right of the petitioner to engage himself in any business he liked. It was said to be an unreasonable restriction on his fundamental right granted by Art. 19 (1) (g) of the Constitution. It was contended in the alternative that the Government was vested with an unregulated discretion to compel the petitioner to accept a film of any length which may consume the whole or a part of the time for which each performance is given, and there is nothing in sec. 12 (4) to guide the discretion of the Government. It was contended that such a power was in the nature of an imposition, and was ultra vires the freedom guaranteed under Art. 19 of the Constitution. It was urged that the compulsory exhibition of a particular type of film available only at a particular source and at a price nominated by the source itself was an unreasonable restriction on the petitioners's freedom of business. It was urged that the condition requiring the petitioner's services, including the use of his machinery, cinema auditorium, screen, electrical energy, carbon, and the services of the petitioner's staff without any compensation therefor was inconsistent with Art. 31 of the Constitution. It was urged that the Chief Commissioner had no power to issue the notification dated 23rd November, 1954, without prior consent of the President, which had not been obtained. It was prayed that the District Magistrate be directed not to enforce the conditions imposed under sec. 12 (4) of the Act, to wit, condition Nos. 22 and 15 of the licence, and the said District Magistrate be restrained from cancelling the petitioner's licence for non-observance of conditions Nos. 22 and 15. The respondents to the petition were the Chief Commissioner and the District Magistrate, Ajmer, and they admitted issue of the notification, and said that it had been issued by proper authority. It was urged that conditions Nos. 15 and 22 attached to the licence did not amount to a breach of any fundamental right of the petitioner, as they did not amount to an unreasonable restriction. It was urged that the conditions imposed were reasonable and were in the interests of the general public. It was urged that no action had been taken as provided in secs. 14 or 15 of the Act or under condition No. 23 of the revised conditions of licence, and, therefore, the petitioner had no case for coming to this Court under Art 226 of the Constitution. It was urged that since the provisions of the Central Act had been challenged, the Union Government was a necessary party. This last objection was however not pressed during the course of arguments. The first point which may be taken up is whether Notification No. G. A. (3) I2/54-H & S, dated 23rd November, 1954, issued by the Chief Commissioner was by a proper authority. The Notification purports to have been issued in exercise of the power under sec. 12 (4) of Act No. XXXVII of 1952. That section is as follows: - "the Central Government may, from time to time, issue directions to licensees generally or to any licensee in particular for the purpose of regulating the exhibition of any film or class of films, so that scientific films, films intended for educational purposes, films dealing with news and current events documentary films or indi genuos films secure an adequate opportunity of being exhibited, and where any such directions have been issued those directions shall be deemed to be additional conditions and restrictions subject to which the licence has been granted. " The power to be exercised under section 12 (4) is conferred on the Central Government. Under section 3 (8) of the General Clauses Act, "central Government" means - "in relation to anything done or to be done after the commencement of the Constitution the President, and includes in relation to the administration of a Part C. State, the Chief Commissioner or Lieutenant Governor or Government of a neighbouring State or other authority acting within the scope of the authority given to him or it under Art 239 or Art. 243 of the Constitution, as the case may be. " Under the powers conferred by Art 239, the President by S. R. O. 1312 dated 23rd July, 1952, authorised the Chief Commissioner to exercise the powers the Central Government under sec. 12 (4) of the Act. The Chief Commissioner, therefore, had power to issue the Notification which he did on the 23rd of November, 1955. The next point for consideration is whether sec. 12 (4) infringed the provisions of Art. 19 (1) (g) of the Constitution. Clause (6) of Art. 19 protects the imposition of a reasonable restriction on the exercise of the right conferred by 19 (1) (g) in the interests of the general public. There is no doubt that the cinematograph is a valuable agency for educating the public mind, and in order that the general level of intelligence may develop, and restriction for utilisation of the agency of the cinematograph amounts only to a reasonable restriction. There is no force in the contention that sec. 12 (4) gives an unbridled discretion to the Government, because the extent of the restriction is also given in the sub-section namely to secure an adequate opportunity. What is adequate has no doubt been left to be decided by the Government, but that is a contingency which by the very nature must be left to the authority exercising the power, as it would vary as the circumstances vary. Sec. (12)4 only authorises the Central Government for issue of directions to regulate the exhibiting of films so that scientific films,films intended for educational purpose, films dealing with news and current events, documentary films or indigenous films may secure adequate opportunity of being exhibited. The section, therefore, by itself, in our opinion, imposes only reasonable restrictions. Whether the directions actually issued are also reasonable will be the next point for determination. In our opinion, the provision of sec. 12 (4) only purports to authorise the imposition of reasonable restrictions and is not unconstitutional. The next point for determination is whether the directions given amount to a reasonable restriction. The Notification and revised condition No. 22 are identical. Clause (1) directs the exhibition of approved films, and clause (3) restricts that scope of the direction contained in clause (1), and is obviously reasonable. It is conceded by the parties that 2000 ft. of an approved films of 35 mm. size of the corresponding footage of an approved films of 16 mm. size takes only about ten minutes of the entire show, and does not, therefore, displace for any considerable time the main show. Clause (2) describes what would be the approved films. It says that only such films produced in India as are certified by the Central Government with the previous approval of the Film Advisory Board, Bombay, to be scientific films, films intended for educational purpose, films dealing with news and current events or documentary films shall be deemed to be approved films for the purposes of these directions. The argument on behalf of the petitioner is that these kinds of films can only be available with the Films Division of the Government of India, and the Films Division is, therefore, in the position of monopoly-holder, and dictates its own terms, and the exhibitor has to pay whatever rent is demanded, if the direction is to be followed. In paragraph 5 of the supplementary affidavit to the reply filed by the respondents, it is said that the production of 'approved films1 is not a Government monopoly, and while films of this kind are largely produced by the Films Division of the Government of India, about 18 films have been produced by private producers dealing with subjects of their choice, and there are thirty films produced by private individuals on specific contract. It was said that it was not obligatory on the exhibitors to purchase films from the Films Division, and there was no obligation on them to pay anything to the Government unless they chose to buy films of the Films Division. In the last sentence of the paragraph it is said that the Government also encourages private producers of such films by buying the same from them. This last sentence makes it quite clear that although there may be producers other than the Government, the Government buys those films, and, therefore, the supply can only be got from the Films Division of the Government of India with some rare exception. It must, therefore, be taken to be a fact that approved films made in India can only be obtained from the Government, and according to the letter of the Films Division dated 2nd March, 1956, it charges such rentals as it may please it to decide. It is said in the supplementary affidavit that the rates are charged by the Films Division according to a certain schedule, which is applicable to all exhibitors. It is not necessary to consider whether the rates are reasonable or otherwise, for we are of opinion that sec. 12 (4) only authorises the issue of directions to give adequate opportunity for screening "scientific films, films intended for educational purposes, films dealing with news and current events, documentary films or indigenous films", and each one of these classes of films is mentioned in the alternative. The word "or" is used in a disjunctive sense, and means "either". Condition No. 2 imposes two limitations on scientific films, films intended for educational purposes, films dealing with news and current events, or documentary films, before they can be considered to be the proper films to be exhibited: - (1) They should be films produced in India, (2) They should be certified by the Central Government with the previous approval of the Film Advisory Board, Bombay. The certification and the previous approval are only as regards the nature of the films. The limitation that these scientific films, films intended for educational purposes, films dealing with news and current events and documentary films should be produced in India is not authorised by sec. 12 (4) of the Cinematograph Act, 1952. It does not also stand to reason why, if, the particular film satisfies the condition of a scientific film, or a film intended for educational purposes, or a film dealing with news and current events,or a documentary film, and is certified to be so by the Central Government, it should not be held to fulfil the direction laid down in sec. 12 (4) simply because it is not produced in India. As stated earlier, the word "or" used in sec. 12 (4) is used in a disjunctive sense, and it may be that if there are any cinematographs which do not provide for the screening of any Indian film, they can be directed to screen one of a particular length, which may be reasonable. The word ''indigenous" occurring in sec. 12 (4) has been construed in a conjunctive sense in the issue of the Notification. It is because of this that a situation has arisen where the particular films can only be obtained at a price fixed by the suppliers, because, as admitted on behalf of the respondents, the production of this kind of films by agencies other than the Government is negligible. The provisions of the Act do not authorise the imposition that the scientific films, films intended for educational purposes, films dealing with news and current events and documentary films, though certified to be so by the Government of India, should also be those which are produced in India. It cannot be denied that there are countries other than India, which are far advanced in scientific knowledge and education and there is no reason that screening of such films produced in countries other than India should not fulfil the reasonable restriction of providing an adequate opportunity of educating the people of India. We are, therefore, of opinion that the words "produced in India" in clause (2) of the Notification as also of condition No. 22 of the Licence are in excess of the authority conferred by sec. 12 (4) of the Cinematograph Act.
(3.) NOW as to condition No. 15. This condition is parallel to condition No. 22 (a ). Condition No. 22 (a) has the authority of the Cinematograph Act behind it. It has not been shown under what authority condition No. 15 has been imposed. In one sense, the condition is wider than clause (a) of condition No. 22, for it authorises the Chief Commissioner to require an exhibitor to exhibit any film for a period up to 15 minutes on all. It cannot be gainsaid that the exhibition of a film required the expenditure on electrical energy and the maintenance of the staff, all to be utilised according to what the Chief Commissioner may be pleased to direct. There is no mention of the class of films to be shown. In the circumstances condition No. 15 is an unreasonable restriction so far as the requirement of exhibiting films is concerned. As regards the lantern slides, the additional reply is that only slides by B. C. G. Campaign were supplied to be shown. Since no specific grievance has been made out, no interference necessary in respect of the requirement to exhibit lantern slides to be provided by the Government. It is, however, hoped that this condition will be made more specific, so that the lantern slides to be shown are only those which are meant for the good of the public, and are required to be shown in the larger interests of the public, and for short period of time only. As a result we hold that the words "produced in India" occurring in clause (2) of the Notification and clause (b) of condition No. 22 of the revised conditions of licence purport to impose a condition not authorised by sec. 12 (4) of the Cinematograph Act, and are ultra vires the powers of the Chief Commissioner. We also hold that condition No. 15 so far as it empowers the Chief Commissioner to require the exhibitor to exhibit free of charge or on such terms as regards remuneration as the Chief Commissioner may determine films provided by the Chief Commissioner in unconstitutional as being an unreasonable restriction on the right of the petitioner to carry on business. The rest of the prayer of the petitioner is disallowed. The petitioner will get half the costs from the respondents, the fee of the counsel being taxed at Rs. 100/- per day. . ;