TMI Blog1959 (10) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... mporary license to exhibit cinema films at Rajgangpur. This license was renewed from time to time after the expiry of the usual period of three months and the last period of renewal expired on 31-12-57. The building where the cinema films were exhibited was a temporary structure but it appears that the petitioner was gradually trying to improve the condition of the same and in 1956 he replaced the wooden trusses with iron trusses erected on brick pillars. But the roof of the building still continued to be of a temporary character. 3. On the 17th September, 1957, the District Magistrate of Sundargarh granted the opposite party No. 4, Anagi Manjari Devi, a permanent license to exhibit cinema films in Rajgangpur in a building not far away from that of the petitioner. Consequently, when the petitioner applied in due course, for the renewal of his temporary license after its expiry on the 31st December 1957 the District Magistrate rejected the same saying that as there was formerly no permanent cinema house at Rajgangpur, the petitioner had been allowed to exhibit cinema films in a temporary structure, but as a permanent building had since been constructed and a permanent licence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with certain specifications and furthermore there were provisions regarding the extent of the accommodation in the auditorium, sanitation, exists, gangways, staircases, etc, Provision was also made for precautions against fire especially of the films. The nature and type of electrical installations in the cinema house was also regulated by special provisions. The licenses were divided into two classes, namely, temporary licenses available for three months at a time and annual licenses available for one year at a time. Different scales of fees were fixed for the two classes of licenses and it was further provided that annual licenses shall not be granted unless the building is constructed of non-inflammable materials. After the coming into force of the Constitution the Parliament passed another Act entitled the Cinematograph Act 1952 (Act 37 of 1952) by which the provisions of Act II of 1918 were partially repealed in Part A and Part B States. Thereupon the Orissa Legislature passed another Act known as the Orissa Cinemas (Regulation) Act, 1954 (Orissa Act 11 of 1954) which is, for all practical purposes, identical with the Cinematograph Act of 1918. The only material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any person on such terms and conditions and subject to such restrictions as it deems fit and such a provision imposes an unreasonable restriction on the fundamental right of a citizen to carry on his business of exhibiting Cinema films and is not saved by Clause (6) of Article 19 of the Constitution. He tried to reinforce this argument by saying that the State Government have not made rules for guiding the discretion of the District Magistrate in respect of the determination of the terms and conditions and the re strict ions subject to which a license may be granted, though such rule-making power was expressly conferred by Clause (a) of Sub-section (2) of Section 9 of the Act. According to him, the provisions of the Orissa Cinematograph Rules, 1939, deal primarily with the safety of persons attending exhibitions which has already beer provided for in Clause (b) of Sub-section (1) of Section 5 of the Orissa Act and as respects other important matters such as the determination of priority as amongst rival applicants for licenses, the principles on which the discretion to grant licenses should be exercised and similar matters, both the Act and the Rules are entirely silent. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory rule authorising a municipality to shift a bus stand from one place to another, was challenged as imposing an unreasonable restriction, their Lordships repelled that argument in the following terms: It cannot be denied that the appellant has been prohibited from carrying on the business of running a bus stand. What has been prohibited is that the bus stand existing at the time on a particular site being unsuitable from the point of view of public convenience, it cannot be used for picking up or setting down passengers from that stand for outstation journeys ........ There is no fundamental right in a citizen to carry on the business wherever he chooses and his right must be subject to any reasonable restrictions imposed by the executive authority in the interests of public convenience ...... Whether the abolition of the stand was conducive to public convenience Or not, is a matter entirely for the Transport Authority to judge, and it is not open to the Court to substitute its own opinion for the opinion of that authority which is in the best position, having regard to its knowledge of the local conditions, to appraise the situation. This decision thus clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and availability, at fair prices, and to regulate the transport, distribution, acquisition and disposal of an essential commodity like food-grains (which was not then easily available). Again in Harishankar Bagla v. M.P. State Clause 3 of the Cotton Textiles (Control of Movement) Order 1948 was held to be valid even though that clause conferred full power on the Textile Commissioner to regulate by grant of permits the transport of cotton goods. The power exercised under that order was derived from Section 3 of the Essential Supplies (Temporary Powers) Act and their Lordships held that the Preamble of the Act was clear and afforded sufficient guidance to the Central Government, in exercise of the power under Section 3 of that Act. In Babul Chandra v. Chief Justice and Judges of the Patna High Court the Supreme Court held Rule 10 of the Bar Council Rules of the Patna High Court to be valid, even though that Rule conferred unfettered discretion on the High Court to enrol or refuge to enrol any person as an Advocate entitled to practise before it. Though no specific provision was made either in the Act or in the Rules to guide the exercise of such discretion by the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regulated by principles. 11. I now come to the well-known case of Ramkrishna Dalmia v. S. R. Tendolkar where all the previous decisions were reviewed and some broad principles were formulated with a view to test the reasonableness of the classifications for the purpose of legislation, having regard to the fundamental rights guaranteed by Article 14 of the Constitution. It is unnecessary to refer to all the principles laid down in that case and it will be sufficient if I refer to three of them (mentioned in pages 548 and 549 of the report). They are: (i) A statute may not make any classification of the persons or things for the purpose of applying its provisions but may leave it to the discretion of the Government to -select and classify the persons or things to whom its provisions are to apply. In determining the question of validity or Otherwise of such a statute the Court will not strike down the law out of hand only because no such classification appears on its face, or because a discretion is given to the Government to make the selection or classification, but will go on to examine and ascertain if the statute has laid down any principle or policy for the guidanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e business. Restrictions on the carrying on of business in respect of normally available commodities should not be as drastic as those in respect of a business or occupation which is likely to cause nuisance or danger to the public. No One has a fundamental right to carry on any business at a particular place chosen by him and a local authority should have discretion to change the place in the interests of public convenience or safety. The authority chosen for the exercise of discretion, under a statute, is also a material factor. Thus the highest judicial tribunal in the State, namely the High Court may confer unfettered discretion by a statute as regards the enrolment of Advocates and yet that statute may not be unconstitutional. The power to regulate the carrying on of a business cannot be used for the purpose of prohibiting the carrying on of that business. One of the important tests to determine whether the restrictions are reasonable or not, is whether there is a provision for a superior authority to examine the propriety of the order of the lower authority and revise or review its decision. 13. These principles have been applied in several decisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasonably made in the interests of the public. 14. I may also refer to a recent decision of the Bombay High Court in Govindji Vithaldas Co. v. Municipal Commissioner, Ahmedabad which (if I may say so with respect) gives a new approach to the question. There it was pointed out that even if a statute conferred unfettered discretion on an authority to issue or withhold a license or permit, such discretion according to the well known principles of statutory construction, cannot be held to be either arbitrary or unfettered or unbridled. Even though the legislature may not indicate the nature of the discretion and how it should be exercised the principles of law which are well settled must be imported into the consideration of the question as to what discretion the Legislature conferred On the authority. The observations in Maxwell, Tenth Edition, at page 123, were quoted. In that case the power conferred on the Municipal Commissioner of Ahmedabad to issue or withhold the issue of licenses to carry on timber business within a municipality was held to be constitutional inasmuch as it was meant to effectuate the policy of the law which was to regulate all business, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecting the place where the holding of Cinema films may be permitted, are not covered by the Rules. But it is impossible to frame rules dealing with all matters which may be relevant for the purpose of deciding whether a license should be granted to a particular applicant or not, and wide discretion must necessarily be given to the licensing authority. Moreover, as pointed out in AIR 1953 Mad 279 (already cited) the absence of specific rule regarding the principles to be followed in making a selection from rival applicants for licenses, will not invalidate the statute itself. Thirdly, the authority chosen for the purpose of granting license is not a subordinate official but an officer holding the rank of District Magistrate. Lastly, most effective check on any apprehended exercise of arbitrary discretion by the licensing authority is provided by the right of appeal given in Sub-section (3) of Section 5. The licensing authority is therefore bound to give reasons while rejecting an application for license those reasons will be subject to the objective test of a superior authority. I must, therefore, hold that Sub-section (2) of Section 5 of the Act is not unconstitutional eve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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