R N VALLINAYAGAM PILLAI PROPRIETOR OF SRI SHANMUGANANDA Vs. STATE OF MADRAS

JUDGEMENT

(1.) The petitioner applied to the District Magistrate, Tirunelveli the licensing authority under the Cinematograph Act, to run a touring cinema called "Sri Shanmugananda Touring Talkies" at Mela Ambasamudram village. He had previously obtained the necessary licence under the Places of Public Resort Act, paid the prescribed fee for the license and he states in his affidavit that he has complied with other rules and conditions under the Cinematograph Act. The District Magistrate passed an order on 4-12-1950 refusing to grant a licence to him. It is now common ground that this refusal was because of certain instructions issued by the Government in two orders dated 5-5-1950 and 11- 11-1950. In the first of these orders, the Government instructed licensing authorities to restrict the number of touring cinemas in places where there were permanent cinemas in order to prevent unhealthy competition and to ensure public safety. In places where there was only one permanent cinema, the licensing authorities were instructed to use the discretion vested in them to grant or refuse licenses to touring cinemas. There were detailed instructions as regards the grant of licenses to permanent and touring cinemas based on the population of the area sought to be exploited. It was 'inter alia.' directed that for places with a population of over 50000 no touring cinema should be allowed within a distance of three miles from the nearest permanent cinema. We are not concerned with other instructions in this application. By the later order, the Government further instructed the licensing authorities not to grant a license to a touring cinema within three miles of a place with a population of over 50000 even if there was no permanent cinema there, as the intention of the Government was to encourage the construction of permanent einemas in such places. In a village, municipal or panchayat area adjoining a town with a population of over 50000 no touring cinema was allowed within three miles of the nearest permanent cinema in the latter town. Licensing authorities were directed to strictly follow the instructions given in the earlier order of the Government as well as in the later order and that they should not make any relaxation to suit any individual case. They were further intimated that they should obtain the order of the Government in border line cases or in cases where they had any doubt on the question of granting or refusing the license.

(2.) On behalf of the petitioner the validity of the refusal by the licensing authority to grant a license to the petitioner was challenged on the ground that it was based on instructions from the Government which (1) were beyond the scope of the Act and (2) were in contravention of the article of the Constitution which conferred a right on the petitioner to carry on the business of running a touring cinema.

(3.) There is no substance whatever in the first ground. The Cinematograph Act was passed to make provision for regulating exhibitions by means of cinematograph. Under Section 4 the licensing authority outside the Presidency town is the District Magistrate. But under S. 5(3) which confers a power on the licensing authority to grant licenses to such persons as it thinks fit and on such terms and conditions subject to such restrictions as it may determine, the licensing authority is subject to the control of the Provincial Government. It Is presumably in exercise of this power of control that the instructions above mentioned were issued by the Government to the licensing authorities. It is not strictly accurate to speak of these instructions as rules framed under Section 8 of the Act, and so it is not necessary to deal with the contention that they go beyond the rule-making power contained in Section 8.