STATE OF UTTAR PRADESH Vs. RAJA RAM JAISWAL

JUDGEMENT

(1.) Respondent Raja Ram Jaiswal along with the members of his family ('respondent' for short) purchased premises No. 26/30, a plot of land with a small structure standing on it admeasuring 2978 sq., yds. situated at K. P. Kakkar Road, somewhere in March, 1970. The respondent desired to construct a cinema theatre on the plot of land after demolishing the existing structure. As a first step, he got prepared, the plans for a modern air-conditioned, sound-proof cinema building and got the same approved by the Local Municipal Corporation and the District Magistrate, Subsequently, on July 6, 1971, the respondent submitted an application as required by Rule 3 of the U. P. Cinematograph Rules, 1951 ('1951 Rules' for short) to the District Magistrate for obtaining a certificate signifying his approval of the site selected for constructing a permanent building to be used for cinematograph exhibition. Before granting the requisite certificate the District Magistrate as the Licensing Authority has to be satisfied that the requirements of the 1951 Rules have been fully complied with. Inter alia it must be satisfied that any. recognised educational institution (other than primary school) or any residential institution attached thereto is not situated within a radius of 75 metres from the proposed cinema building. There were other conditions to be satisfied but this one is being referred to by us because the allegation is that this condition has been contravened. It also appears that before granting the requisite certificate, with a view to giving an opportunity to the public in the locality to express their opinion for or against the grant of the certificate, if they so desired a public notice was issued specifying the request by the respondent for issue of a certificate of approval of the site for constructing a cinema theatre. An organisation called The Hindi Sahitya Sammelan ('Sammelan' for short) alone submitted its objection. The District Magistrate referred the application of the respondent to the State Government. The State Government directed the District Magistrate to carefully examine the matter and determine whether it would or would not be in public interest to grant the certificate, There ensued some correspondence between the District Magistrate and the State Government, the query centering round the question whether the Sammelan was a recognised educational institution as envisaged by Rule 7 (2)(b) of 1931 Rules. The District Magistrate in his letter dated March 24, 1972 inter alia stated that Sammelan can neither be styled as an educational institution nor a residential institution within the contemplation of Rule 7(2)(b) because it is an institution wedded to and working for the propagation of Hindi language and even though it may provide some research facility on its campus, it has no regular programme of class teaching. The District Magistrate was also of the opinion that having regard to all the relevant circumstances, the construction of cinema building at the proposed site was not against public interest. On the contrary according to him, a modern beautiful fully air-conditioned cinema building apart from adding to the beautification of the city would enrich the coffers of the State exchequer in the form of entertainment tax. He concluded by observing that in his opinion public interest will not be adversely affected if the permission is granted for construction of the cinema house at the proposed site and that he proposed to grant the permission. Accordingly, on March 28, 1972, the District Magistrate informed the respondent that with reference to his application dated July 6, t971 in connection with the construction of a cinema house over Plot No. 26, Crosthwaite Road_ the site plans checked and signed by the Executive Engineer, P. W. D. Allahabad have been approved on certain conditions including that the construction of the cinema house will be completed within two years from the date of the issue of the order and the cinema house will be fully air-conditioned and according to the plans and specifications submitted to him. There was a small building over the plot in respect of which the certificate signifying the approval of the District Magistrate was granted. This building was demolished and construction of the cinema building according to the plan was commenced. Chagrined by the grant of the certificate. Sammelan initiated action for acquisition of the plot over which the cinema building was being constructed somewhere in August, 1973. As the various steps taken for acquisition of land form part of a separate controversy to be dealt with in Civil Appeal No. 2458/80, the same may be skipped over here. Suffice it to state that a notification under Sec. 4(1) of the Land Acquisition Act, 1894 was issued by the Collector, Allahabad on January 31, 1974 notifying that Plot No. 26 admeasuring 2865 Sq. Yds. was proposed to be acquired for a public purpose viz. for extension, of Hindi Sangrahalaya of Hindi Sahitya Sammelan. The respondent challenged this notification in Writ Petition No. 1932/74 in the High Court of Allahabad. In the meantime as the period of two years specified in the certificate issued under Rule. 3 was about to expire, the respondent moved an application on March 26, 1974 before the District Magistrate for extension of time for completion of the construction of cinema building. The State Government withdrew the notification dated January 31, 1974 with the result that the writ petition filed by the respondent was dismissed on January 30, 1975 as having become infructuous. Within a period of six days on February 6. 1975, the Collector of Allahabad issued a fresh notification under Sec. 4(1) of the Land Acquisition Act for, acquiring land described as bearing Plot No. 62(26 ) admeasuring 8265(2865 ) Sq. Yds. for the same purpose. The respondent questioned the validity and legality of the second notification in Writ Petition No. 3174/75. During this period, the application for extension of time for the constriction of cinema building was pending with the District Magistrate. By letter dated July 25, 1975, the District Magistrate informed the respondent that with reference to his application dated March 26, 1974 praying for extension of time, it is not possible to grant the extension as the matter is pending before the High Court at the instance of the respondent and as they have obtained stay against the land acquisition proceedings, it would not be proper for the District Magistrate to pass any order regarding this very land so long as the stay order granted by the High Court is in force.' It was also noticed that the period of two years initially granted had expired in March, 1974 and the same cannot be extended. It appears, however, that during the time the application for extension of time for completion of the cinema building was pending with the District Magistrate, the work of construction was going apace. and it was completed presumably sometime before the District Magistrate declined to grant extension of time. As the cinema building was complete, the respondent made an application on May 25, 1979 under Sec. 3 of the U. P. Cinemas (Regulations) Act, 1955 ('1955 Act' for short) for a licence to exhibit films in the cinema building. Though the District Magistrate is a statutory authority for grant or refusal of licence under the 1955 Act, surprisingly, he referred the application of the respondent for grant of licence to the State Government specifically in view of the pendency of the Writ Petition No. 3174/75 challenging the notification for acquisition of the land on which the cinema building was constructed. A communication from the Joint Secretary of the State Government to the District Magistrate concerning the question of grant of cinema licence has a material bearing on the issue involved in the writ petition. Therefore the relevant portion of the communication may be extracted. It reads as under :

(2.) A Division Bench of the High Court held that even though the order under challenge was one of remand, as the respondent has journeyed to and from on numerous occasions, it is necessary to dispose of the petition on merits, It was further held that while granting a certificate under Rule 3 of the 1951 Rules, it was open to the licensing authority to take into consideration whether it would be in public interest to grant the necessary certificate or to refuse the same, but after the grant of the certificate when a full-fledged cinema building comes up and is shown to comply with the relevant rules and regulations, cinematograph licence cannot be refused on the vague consideration that it would not be in public interest to grant the licence. It was also held that the failure to complete the construction of cinema building within the prescribed time, if properly explained would not be a ground to refuse cinematograph licence, more so because the requirement of rule 3(3) is directory and not mandatory. The High Court accordingly made the rule absolute and in modification of the order of the State Government dated February 15, 1980 it directed the District Magistrate Licencing Authority - to forthwith grant to the petitioner the requisite licence subject to reasonable conditions and restrictions. An order in the nature of mandamus was issued accordingly. Hence this appeal by the State of Uttar Pradesh and the District Magistrate by special leave.

(3.) Before we advert to the contentions canvassed before us on behalf of the appellants, a brief resume of the stages through which the proceedings journeyed in this Court may be mentioned. The petition for special leave came up for admission on September 17, 1981 when special leave to appeal was granted and the operation of the judgment of the High Court was stayed. Consequently, the mandamus directing the District Magistrate to grant licence stood suspended. CMP 26710/81 was moved on behalf of the present respondent for vacating the stay granted by this Court. The proceedings dated December 15, 1981 as recorded show that after the arguments were heard at some length, the Court in the interest of justice thought it expedient to modify the stay order dated September 17, 1981 to the effect that the stay order granted by the Court will be in operation for a further period of two months only and that the hearing of the appeal may be expedited. The present appeal and the cognate Appeal No. 2458/81 came up together for hearing and the cognate appeal was first taken up for hearing for the obvious reason that if the challenge to the notification for acquisition of the plot on which the cinema building is constructed failed in the appeal on behalf of the State of U. P., it would have an impact on the present appeal because if the land was to be acquired, the question of granting licence for running a cinema on the land under acquisition could hardly be envisaged. The hearing as usual in this Court went on merrily. Therefore, after hearing the parties, we made the order on January 20, 1983 directing the District Magistrate to comply with the remand order. It may be recalled that the order under challenge in this appeal was the order of remand made by the State Government to the District Magistrate for considering and disposing of the application for a cinema licence on merits. We had some hesitation whether the court can grant a mandamus directing a statutory authority to grant a licence at a stage when the District Magistrate was yet to apply his mind and examine the application on merits because doing so would tantamount to the court substituting itself as a licensing authority without the licensing authority performing its duty, which would be impermissible. We were conscious of the fact that the District Magistrate was bound to take some time in processing and disposing of the application for a cinema licence pending with him. Accordingly, we directed the District Magistrate to proceed to consider, the application of the respondent for grant of cinema licence and dispose of it in the light of the observations made in the order. Pursuant to this order, the District Magistrate, Allahabad proceeded to examine the application of the respondent for cinema licence on merits and having given him an opportunity of being heard, by his order dated February 20, 1983 rejected the application for licence observing that it would not be in public interest to grant the cinematograph licence applied for by the respondent. The appeal was again placed on board for further directions on March 10, 1983. After giving anxious consideration to the order of the District Magistrate, the Court made an order vacating interim stay granted by this Court staying the operation of the judgment of the High Court. The effect of this order was that the mandamus granted by the State (High Court) became operative. Accordingly, on March 19, 1983, the District Magistrate granted the licence to run Chandralok cinema. Two CMPs. Nos. 12718-19/83 were moved in this Court, one of them being for taking action for contempt and another for certain directions. They were a sequel to the granting of a licence and public annoyance demonstrably exhibited by the authorities of the Sammelan. While disposing of these petitions, we directed that the City Magistrate would withdraw the impugned order under Sec. 144, Cr. P.C. within a fortnight from the date of the order and the District Magistrate shall renew the licence of Chandralok cinema to be operative and in force till the decision of appeal by this Court and the City Magistrate shall make necessary arrangements to maintain public order near and around Chandralok cinema if. necessary by posting additional police force and grant necessary protection to the licensee enabling him to run the. cinema house peacefully. Regretably, it must be concluded from this resume that the dispute is hardly, between the State Government and the respondent, but it is a proxy fight consequent upon the clash of ego between the Sammelan and Jaiswal. Uninfluenced by this irrelevant aspect, the appeal may be disposed of on merits.